P.1 

OAR Box 1338 

Prepped by Ollie Stewart 

Document Number: 

30) F. R.April 25, 1989 

Docket Number: 

A-89-10 

Printed 6/17/2008 1:48:06 PM Sheet 30 of 105 
P.2 

A-86-/0 

Tuesday 

April 25, 1989 

Part X 

Environmental 

Protection Agency 

Intent to Form an Advisory Committee to 

Negotiate a New Approach for Control of 

Volatile Organic Chemical Equipment 

Leaks; Notice 
P.3 

17944 * Federal Register / Vol. 54, No. 78 / Tuesday, April 25, 1989 / Notices 

ENVIRONMENTAL PROTECTION 

AGENCY 

[FRL 3562-8] 

Intent to Form an Advisory Committee 

to Negotiate a New Approach for 

Control of Volatile Organic Chemical 

Equipment Leaks 

SUMMARY: EPA is considering 

establishing an Advisory Committee 

under the Federal Advisory Committee 

Act (FACA). The Committee's purpose 

would be to negotiate issues leading to a 

new approach for regulation of 

equipment leaks under Sections 111 and 

112 of the Clean Air Act as amended. 

The Committee would consist of 

representatives of parties that are 

substantially affected by the outcome of 

the proposed rule. 

EPA requests public comment on 

whether: 

• It should establish a Federal Advisory 

Committee; 

• It has properly identified interests it 

believes are affected by the key issues 

listed above; 

• Regulatory negotiation is appropriate 

for this rulemaking, and the extent to 

which the issues, and procedures are 

adequate and appropriate. 

This notice also announces that an 

informational meeting will be held on 

May 15 from 10 am to 4 pm at the Hall of 

States, 444 N. Capitol St., room 337, 

Washington, DC to discuss the issues 

involved in the regulation of equipment 

leaks, and whether the Committee 

should be formed and negotiations 

proceed. 

This meeting is open and any parties 

interested in the negotiation are 

encouraged to attend. 

DATE: EPA must receive comments and 

suggestions by May 10,1989. 

ADDRESS: Comments should be 

submitted (in duplicate, if possible) to 

Air Docket (LE-131) Room M-1500, 

Environmental Protection Agency, 

Attention Docket #A89-10,401M Street, 

SW., Washington, DC 20460. A copy 

should also be sent to Boy Ajax, MD-13, 

U.S. EPA, Research Triangle Park, NC 

27711. Docket #A89-10, containing 

materials relevant to this rulemaking 

may be inspected at U.S. EPA between 8 

a.m. and 4 p.m. on weekdays, and a 

reasonable fee may be charged for 

copying. 

FOR FURTHER INFORMATION CONTACT: 

For information pertaining to the 

establishment of the negotiation 

committee and associated 

administrative matters contact: Deborah 

Dalton, Deputy Director, Regulatory 

Negotiation Project, Information and 

Regulatory System Division, U.S. EPA 

(PM-223), 401 M Street SW., 

Washington, DC, 20480 (202) 382-5495. 

For information pertaining to the 

regulation of equipment leaks and the 

regulatory issues to be addressed in the 

negotiation, contact: Bob Ajax, MD-13, 

U.S. EPA, Research Triangle Park, NC 

27711 (919) 541-5579. 

SUPPLEMENTARY INFORMATION: 

Outline of Notice 

I. EPA's Regulatory Negotiation Project 

II. Volatile Organic Chemical Equipment 

Leak Fugitive Emissions 

A. Need for Rule Revision 

B. Selection as a Negotiation Item 

C. Key Issues for Negotiation 

D. Potential Interests and Participants 

III. Formation of the Committee 

A. Procedure for Establishing an Advisory 

Committee 

B. Participants 

C. Requests for Representation 

D. Final Notice 

E. Tentative Schedule 

IV. Negotiation Procedures 

A. Facilitator 

B. Good Faith Negotiation 

C. Administrative Support and Meetings 

D. Committee Procedures 

E. Defining Consensus 

F. Failure of the Committee to Reach 

Consensus 

G. Record of Meetings 

I. EPA's Regulatory Negotiation Project 

EPA established the Regulatory 

Negotiation Project in 1983 to explore 

and demonstrate the value of 

negotiation and other consensusbuilding techniques for developing 

better regulations which could be 

implemented in a less adversarial 

setting. 

Negotiations are conducted through 

Advisory Committees chartered under 

the Federal Advisory Committee Act 

(FACA). The goal of the Committee is to 

reach consensus on the language or 

issues involved in a rule. If consensus is 

reached, it is used as the basis of the 

Agency's proposal. All procedural 

requirements of the Administrative 

Procedure Act and other applicable 

statutes continue to apply. 

EPA has developed criteria for 

evaluation of potential items for 

negotiation. To qualify under EPA's 

selection criteria, an item must: 

• Be planned for proposal; 

• Have a relatively small number of 

identifiable parties, in an appropriate 

balance and mix, who have a good faith' 

interest in negotiating; 

• Present a limited number of related 

issues, for which sufficient information 

is available for resolution; and 

• Have a time factor that lends some 

urgency to reaching consensus. 

The seven negotiations conducted to 

date have aided the Agency in better 

defining the issues and in crafting better 

approaches. The seven regulatory 

negotiations were: 

• Nonconformance Penalties under 

the Clean Air Act, as amended; Final 

rule: August 30,1985 

• Emergency Pesticide Exemptions 

under the Federal Insecticide, Fungicide 

and Rodenticide Act (FIFRA); Final rule: 

January 15,1986 

• Farmworker Protection Standards 

for Agricultural Pesticides under the 

Federal Insecticide, Fungicide and 

Rodenticide Act (FIFRA); Proposed rule: 

July 8,1988 

• Asbestos Containing Materials in 

Schools under the Asbestos Hazard 

Emergency Responsibility Act of 1986 

(AHERA); Final rule: October 30,1987 

• New Source Performance Standards 

for Woodburning Stoves under the 

Clean Air Act; Final rule: February 26, 

1988 

• Underground Injection of 

Hazardous Waste under the Hazardous 

and Solid Waste Amendments of 1984. 

Final rule: July 26,1988 

• Minor Permit Modifications under 

the Resource Conservation and 

Recovery Act (RCRA); Final rule: 

September 28,1988 

In December 1986, the Program 

Evaluation Division of EPA's Office of 

Policy Planning and Evaluation 

completed an assessment of the 

regulatory negotiations program. The 

study confirmed that negotiation is 

especially appropriate in situations 

which involve the resolution of a limited 

number of related issues, none of which 

involve fundamental questions of value 

or extremely controversial national 

policy. The study further concluded that: 

• Negotiated rulemaking can produce 

rules that are more pragmatic with 

better environmental results while still 

meeting statutory requirements. 

• Negotiated rules are also more 

likely to be acceptable to the affected 

industries, the public interest sector, and 

state and local governments involved in 

developing them. 

• Negotiation may also result in 

earlier implementation of a rule by 

reducing the time it takes to proceed 

from proposed to final rulemaking. 

EPA believes that the benefits to all 

parties of regulatory negotiation are 

substantial, and is committed to 

continued use of regulatory negotiation 

and other consensus-based processes 

for rulemaking when appropriate. 
P.4 

Federal Register / Vol. 54, No. 78 / Tuesday, April 25. 1989 I Noticea 17945 

II. Volatile Organic Chemical Equipment 

Leak Fugitive Emissions 

A. Need for Rule Revision 

Fugitive emissions of volatile organic 

compounds (VOCs) from equipment 

leaks (valves, eta) contribute 

significantly to air quality problems. 

Current regulations adopted under 

sections 111 and 112 of the Clean Air 

Act and in State Implementation Plans 

(SIPs) have been effective in heightening 

awareness of the significance of this 

source and in stimulating control efforts. 

The rules basically require that 

equipment in place be inspected 

quarterly for leaks with a portable 

hydrocarbon detector. If concentrations 

in excess of 10,000 ppm are found, the 

component is identified as a leaker and 

maintenance is required. EPA studies in 

the early 1980s showed that typical 

refineries and chemical plants have an 

uncontrolled leak frequency of 11 to 12 

percent Maintenance studies indicate 

this can be reduced by about 60-70 

percent with the current leak detection 

and repair program. However, the actual 

frequency rate, and associated 

emissions in particular, vary widely and 

are believed to be a function of original 

design (a&, number of valves) and age 

of the process unit, equipment selected, 

quality of maintenance, standard 

operating procedures used by the 

company, training provided to 

employees, and motivation. Recent data 

for highly toxic chemicals demonstrate 

that frequencies in the CL0 to 2 percent 

range can be achieved in Some 

situations. However, no one is sure what 

combination of factors guarantees such 

results nor how to require them through 

enforceable regulations. 

More importantly, regulatory 

approaches currently, being used do not 

provide for quantification of emissions. 

Specified quantified emission estimates 

levels are necessary to establish a baseline and EPA needs residual emissions 

and risk assessments to make regulatory 

decisions. For example, the analyses of 

EPA proposed rules that would limit 

benzene emissions (FR Vol. 53, No. 145, 

July 28,1988) are based on emission 

estimates from leak frequencies typical 

of the refinery industry. These may 

significantly overestimate emissions of 

benezene. 

EPA sees the need for a new 

regulatory approach, based on 

performance and/or emissions, that will 

result in quantifiable emission levels, 

give credit for original plant design and 

motivate innovation. Develoing such an 

approachusing EPA's traditional data 

gathering and analysis approach would 

be very difficult, costly, time consuming 

and controversial. Initial contacts

 ; 

suggest that the major industrial 

organizations, environmental groups 

and state government associations will 

be receptive, and there is good potential 

for identifying new approaches through 

negotiation that are compatible with our 

needs and the complexity of the 

problems. 

The negotiation would address 

primarily technical issues and would not 

be policy oriented. Tne specific goal of 

the negotiation would be to develop a 

new regulatory approach that could be 

an alternative to or replacement for tiie 

current 40 CFR 61, Subpart V equipment 

leak rules. The negotiation would 

address the form of the approach and 

the relationship between it and actual 

emissions but would not address 

stringency. Depending upon the timing 

and degree of success, the results could 

be used to implement the Agency's 

upcoming decision on benzene 

equipment leaks. If this is not possible, 

the results would be used in the next 

equipment leak standard, which will 

probably be the hazardous organic 

National Emission Standards for 

Hazardous Air Pollutants (NESHAPs). 

B. Selection as a Negotiation Item 

EPA believes tiiat the equpment leak 

regulations may be appropriate for 

development through tiie regulatory 

negotiation process. EPA has made a 

preliminary inquiry of potential parties 

and representatives of identified 

interests to determine if this item 

satisfies EPA's selection criteria for 

negotiated rulemaking. On the basis of 

this preliminary inquiry, EPA believes 

that this item meets its selection criteria 

and that negotiations can be successful. 

Affected interests are small in number, 

and EPA's initial contacts indicate that 

an appropriate balance and mix of 

groups will be willing to participate in 

good faith, EPA's lead program office 

has identified a number of basic issues 

for Which sufficient information is in 

hand (or will be developed during the 

neogitations) for resolution. 

C. Key Issues for Negotiation 

EPA anticipates the key negotiation 

questions will focus on how to establish 

a regulatory approach that will: 

1. Achieve predictable, quantifiable 

emission results 

2. Result in the application of the best 

available technology 

3. Be enforceable 

4. Exhibit maximum regulatory 

consistency (e.g., with state permitting 

requirements; SARA reporting 

requirements) 

5. Provide incentives for better 

designs (e.g., designs that Involve fewer 

components that have the potential to 

leak) 

6. Provide maximum flexibility in 

achieving specified results 

7. Minimize administative burdens 

8. Provide for predictable compliance 

9. Provide time that may be needed to 

identify, assess, and implement work 

practices, equipment and designs that 

will meet emission goals. 

EPA expects to address the following 

specific questions: 

1. Is leak detection and repair an 

appropriate approach? If so, how can 

the results be quantified? Should the 

definition of a leak be lowered? 

2. Should leak detection and repair be 

required for flanges and, if so, what 

frequency and leak defintion should be 

applied? 

3. Is an emission limit (or a limit on 

the number of leaking components) an 

appropriate approach? How should such 

an approach be implemented? 

4. Is an emission limit on a per 

component basis (or a limit on percent 

leaking components) an appropriate 

approach? How should such an 

approach be implemented? 

5. Is there an effective approach that 

is a combination of the above? 

D. Potential Interests and Participants 

EPA has tentatively identified the 

following Ust of possible interests and 

parties: 

—Chemical manufacturing Industry 

—Petroleum refining industry 

—industries that handle organic 

chemicals in equipment that includes 

valves, pumps, compressions, flanges or 

open-ended lines 

—Environmental.Interest Groups 

—State and local air pollution control 

agencies 

—Manufacturers of pumps and valves 

—Consulting firms involved in plant 

design and equipment specification 

—Contractors involved in 

construction of chemical plants and 

petroleum refineries 

—Labor unions 

—Other Federal agencies 

III. Formation of the Negotiating 

Committee 

A. Procedure for Establishing an 

Advisory Committee 

As a general rule, an agency of tho 

Federal government is required to 

comply with the requirements of FACA 

when it establishes or uses a group 

which includes non-Federal members as 

a source of advice. Under FACA. an 

Advisory Committee is established only 

after both consultation with GSA and 

receipt of a charter. EPA has prepared a 
P.5 

17946 Federal Register / Vol. 54, No. 78 / Tuesday, April 25, 1989 / Notices 

charter and has initiated the requisite 

consultation process. Only upon the 

successful completion of this process 

and the receipt of the approved charter 

will EPA form the Committee and 

commence negotiations. 

B. Participants 

The number of participants in the 

group is estimated to be about 15 and 

should not exceed 25 participants. A 

number larger than this could make it 

difficult to conduct effective 

negotiations. One purpose of this notice 

is to help determinme whether the 

standard that EPA is developing would 

substantially affect interests not 

adequately represented by the proposed 

participants. We do not believe that 

each potentially affected organization or 

individual must necessarily have its 

own representative. However, we firmly 

believe that each interest must be 

adequately represented. Moreover, we 

must be satisfied that the group as a 

whole reflects a proper balance and mix 

of interests. 

C. Requests for Representation 

If, in response to this Notice, an 

additional individual or representative 

of an interest requests membership or 

representation in the negotiating group, 

the Agency, in consultation with the 

facilitator, will determine whether that 

individual or representative should be 

added to the group. EPA will make that 

decision based on whether the 

individual or interest: 

• Would be substantially affected by 

the rule; 

• Is already adequately represented 

in the negotiating group. 

D. Final Notice 

After evaluating the results of the 

informational and organizational 

meetings, and reviewing any comments 

on this Notice and requests for 

representation, EPA will issue a final 

notice. That notice will announce the 

establishment of a Federal Advisory 

Committee and the date of the first 

meeting, unless (1) EPA decides, based 

on comments and other relevant 

considerations, that such action is 

inappropriate, or (2) in the event EPA's 

charter request is disapproved. The 

negotiation process will begin once the 

Committee is appropriately chartered 

and notice is published in the Federal 

Register. 

E. Tentative Schedule 

EPA will hold an informational 

meeting on May 15,1969 (10 am) until 

completion, at The Hall of States, 444 N. 

Capitol St., Washington, DC This 

meeting is open, and potential 

participants are encouraged to attend. 

The purpose of this meeting is to: 

discuss whether negotiations should 

proceed, and if so, consider what issues 

and topics should and should not be 

covered, answer questions, and address 

any other procedural issues which may 

arise. 

If an adequate mix and balance of 

parties attending the informational 

meeting are interested in participating in 

a negotiation, EPA will host an 

organizational meeting within two 

weeks to discuss how the negotiations 

would proceed and how the Committee 

would function. If the organizational 

meeting is successful and charter 

approved, EPA would hold the first 

meeting of the Advisory Committee 

within three weeks of the organizational 

meeting. At this meeting, participants 

would complete action on any 

procedural matters outstanding from the 

organizational meeting, determine how 

best to address the principal issues, and 

begin to address them. 

Subsequent meetings of the 

Committee would be held once or twice 

a month either in Washington, DC, or in 

Research Triangle Park, NC, as 

determined by ihe Committee. 

Though EPA has not set a final 

deadline for completion of the 

negotiation, it expects the negotiations 

may last up to six months. The Agency 

intends to terminate the activities of the 

Committee if it does not appear likely to 

reach consensus on a schedule that is 

consistent with Agency rulemaking 

needs. 

IV. Negotiation Procedures 

The following procedures and 

guidelines will apply to the Committee, 

if formed, unless they are modified as a 

result of comments received on this 

Notice or during the negotiating process. 

A. Facilitator 

EPA will use a neutral facilitator. The 

facilitator will not be involved with the 

substantive development or enforcement 

of the regulation. The facilitator's role is 

to: 

• Chair negotiating sessions; 

• Help the negotiation process run 

smoothly; and 

• Help participants define and reach 

consensus. 

B. Good Faith Negotiation 

Since participants must be willing to 

negotiate in good faith and be 

authorized to do so, each organization 

must designate a senior official to 

represent its interests. This applies to 

EPA as well, and Bob Ajax, Chief, 

Standards Development Branch, Office 

of Air Quality Planning and Standards, 

will be EPA's representative. 

C. Administrative Support and Meetings 

EPA's Information and Regulatory 

Systems Division will supply logistical, 

administrative and management 

support. Meetings will be held in the 

Washington area or in Research 

Triangle Park, NC, at the convenience of 

the Committee. To support the 

negotiations, EPA has pledged funds to 

a resource pool which the National 

Institute for Dispute Resolution will 

administer. EPA expects that funds from 

private foundations might also be 

available. The parties may use the funds 

for such activities as training, technical 

support, and other assistance which the 

Committee deems useful. To give 

committee members maximum freedom, 

subject to any applicable legal 

constraints, they will determine the 

procedures under which requests for 

funds will be made and approved. 

D. Committee Procedures 

Under the general guidance and 

direction of the facilitator, and subject 

to any applicable legal requirements, the 

members will establish the detailed 

procedures for Committee meeting 

which they consider most appropriate. 

E. Defining Consensus 

The goal of the negotiating process is 

consensus. In the negotiations 

completed to date, consensus has meant 

that each interest concurs in the result. 

We expect the participants to fashion 

their own working definition of this 

term. 

F. Failure of Advisory Committee to 

Reach Consensus 

In the event the Committee is unable 

to reach consensus, EPA will proceed to 

develop its own approach. Parties to the 

negotiation may withdraw at any time, if 

this happens, the remaining Committee 

should continue. 

G. Record of Meetings 

In accordance with FACA's 

requirements, EPA will keep a record of 

all Advisory Committee meetings. This 

record will be placed in the public 

docket for this rulemaking. EPA will 

announce Committee meetings in the 

Federal Register. Such meetings will be 

open to the public. 

Dated: April 21,1989. 

Robert H. Wayland, 

Acting Assistant Administrator, Office of 

Policy, Planning and Evaluation. 

[FR Doc. 89-10063 Filed 4-24-89; 10:17 am) 

BILLING CODE 8560-50-H