**[Memorandum]{.underline}**

Subject: EPA Response to AF&PA Paper Entitled "MACT Hammer ICR and
Importance of Court Vacatur of Boiler MACT"

To: Docket EPA-HQ-OAR-2002-0038

Date: June 3, 2008

On March 12, 2008, AF&PA sent by e-mail to Peter Tsirigotis, Director of
the Sector Policy and Programs Division, a paper entitled "MACT Hammer
ICR and Importance of Court Vacatur of Boiler MACT" (Category-Vacatur
Paper). The Category-Vacatur Paper was not submitted to the docket at
that time and was sent to EPA after the January 2, 2008 close of the
first comment period on EPA's ICR package. AF&PA submitted the
Category-Vacatur Paper during the second comment period as an attachment
to its May 18, 2008 comments on EPA's final ICR package
(EPA-HQ-OAR-2002-0038 -- 0096.1, Attachment B*).*

In the Category-Vacatur Paper, AF&PA notes that the obligation under
section 112(j) to apply for a source-specific MACT determination
attaches only to an owner or operator of equipment that belongs to a
source category established by EPA under section 112(c). AF&PA goes on
the argue that at present, no such source category exists for ICI
boilers and process heaters ("ICI boilers/heaters") because, according
to AF&PA, when the D.C. Circuit vacated the MACT Rule for this source
category in *NRDC v. EPA,* 489 F.3d 1250 (2007), it also vacated the
category listing because the category listing was an integral component
of the nullified 2004 Rule. AF&PA concludes that Section 112(j) does not
apply to ICI boiler/heaters of any sort.

AF&PA's position is without merit. Though AF&PA is correct that judicial
review of a source category listing under section 112(c)(1) ("listing
decision") is available when EPA issues emission standards under section
112(d) for such category, the validity of the ICI boiler/process heater
listing was not challenged by any party in *NRDC v. EPA* and the Court's
decision does not address the validity of the listing decision. Section
112(c)(1) requires, in relevant part, that EPA establish a list of all
major sources of hazardous air pollutants. Section 112(c)(2) requires
that EPA establish emission standards under section 112(d) for each
source category listed pursuant to (c)(1). In *NRDC v. EPA*, no party
argued that the listing of ICI boilers/process heaters pursuant to
section 112(c)(1) was inappropriate. Even now, AF&PA does not offer any
basis for such an argument except for its conclusory claim that vacatur
of a 112(d) NESHAP necessarily vacates a 112(c)(1) listing.

The basis for a listing of a major source category under 112(c) is a
finding that there are major sources of HAP within the category. The
decision in *NRDC v. EPA* does not undermine the basis for the listing
and it is hard to imagine that a vacatur of any NESHAP standard would
ever do so unless the basis for the vacatur was that there were no major
sources in the category to which the NESHAP standard applied -- a very
unlikely scenario that is clearly not present here.

AF&PA makes much of EPA statements explaining that the description of
source categories may be revised and that ultimately a definition of a
category will be incorporated in each rule establishing a NESHAP for
that category. However, it does not follow, as AF&PA suggests, that the
112(c) listing merges with and is inseparable from a NESHAP promulgated
pursuant to section 112(d). EPA recognizes that the vacatur in *NRDC v.
EPA* turned on definitional issues. However, the definitional issues
identified by the court do not call into question the basis for section
112(c) listing -- that there are ICI boilers and process heaters that
are major sources of HAP.

Most importantly, as noted above, no party argued that the listing of
ICI boilers/process heaters pursuant to section 112(c)(1) was
inappropriate and the Court's decision does not address the validity of
the listing decision. Therefore, AF&PA's position that the listing
decision has been vacated lacks merit.