### Attachment 1


### RELEVANT PASSAGES FROM SECTIONS 112(d), 112(h) and 302 Section 112(d) (d) Emission standards (1) In general The Administrator shall promulgate regulations establishing emission standards for each category or subcategory of major sources and area sources ofhazardous air pollutants listed for regulation pursuant to subsection (c) ofthis section in accordance with the schedules provided in subsections (c) and (e) ofthis section. The Administrator may distinguish among classes, types, and sizes of sources within a category or subcategory in establishing such standards except that, there shall be no delay in the compliance date for any standard applicable to any source under subsection (i) 

### ofthis section as the result ofthe authority provided by this sentence
. (2) Standards and methods Emissions standards promulgated under this subsection and applicable to new or existing sources ofhazardous air pollutants shall require the maximum degree of reduction in emissions ofthe hazardous air pollutants subject to this section (including a prohibition on such emissions, where achievable) that the Administrator, taking into consideration the cost of achieving such emission reduction, and any non-air quality health and environmental impacts and energy requirements, determines is achievable for new or existing sources in the category or subcategory to which such emission standard applies, through application of measures , processes , methods , systems or techniques

­ including, but not limited to, measures which ­ (A) reduce the volume of, or eliminate emissions of, such pollutants through process changes, substitution of materials or other modifications, (B) enclose systems or processes to eliminate emissions , (C) collect, capture or treat such pollutants when released from a process , stack, storage or fugitive emissions point, (D) are design, equipment, work practice, or operational standards (including requirements for operator training or certification) as provided in subsection (h) ofthis section, or (E) are a combination ofthe above. None ofthe measures described in subparagraphs (A) through (D) shall , consistent with the provisions of section 7414(c) ofthis title, in any way compromise any United States patent or United States trademark right, or any confidential business information, or any trade secret or any other intellectual property right. (3) New and existing sources

### The maximum degree ofreduction in emissions that is deemed achievable for new sources in a category or subcategory shall not be less stringent then the emission control that is achieved in practice by the best controlled similar source, as determined by the Administrator. Emission standards promulgated under this subsection for existing sources in a category or subcategory may be less stringent than standards for new sources in the same category or subcategory but shall not be less stringent, and may be more stringent then ­ (A) the average emission limitation achieved by the best performing 12 percent of the existing sources (for which the Administrator has emissions information), excluding those sources that have , within 18 months before the emission standard is proposed or within 30 months before such standard is promulgated, whichever is later, first achieved a level ofemission rate or emission reduction which complies, or would comply if the source is not subject to such standard, with the lowest achievable emission rate (as defined by section 7501 ofthis title) applicable to the source category and prevailing at the time, in the category or subcategory for categories and subcategories with 30 or more sources, or (B) the average emission limitation achieved by the best performing 5 sources (for which the Administrator has or could reasonably obtain emissions information) in the category or subcategory for categories or subcategories with fewer then 30 sources. Section 112(h) (h) Work practice standards and other requirements (1) In 

### general For purposes ofthis section, if it is not feasible in the judgment ofthe Administrator to prescribe or enforce an emission standard for control of a hazardous air pollutant or pollutants, the Administrator may, in lieu thereof, promulgate a design, equipment, work practice, or operational standard, or combination thereof , which in the Administrator's judgment is consistent with the provisions of subsection (d) or (f) 

### of this section. In 

### the event the Administrator promulgates a design or equipment standard under this subsection, the Administrator shall include as part of such standard such requirements as will assure the proper operation and maintenance of any such element of design or equipment. (2) Definition For the purpose of this subsection, the phrase "not feasible to prescribe or enforce an emission standard" means any situation in which the Administrator determines that ­ (A) a hazardous air pollutant or pollutants cannot be emitted through a conveyance designed and constructed to emit or capture such pollutant, or that any

2requirement for, or use of , such a conveyance would be inconsistent with any Federal, State or local law , or (B) the application of measurement methodology to a particular class of sources is not practicable due to technological and economic limitations. 

### Section 302(k) (k) The terms " emission limitation" and "emission standard" mean a requirement established by the State or the Administrator which limits the quantity, rate, or concentration of emissions of air pollutants on a continuous basis, including any requirement relating to the operation or maintenance ofa source to assure continuous emission reduction, and any design, equipment, work practice or operational standard promulgated under this chapter.

3

### ENVIRON August 23, 2010 Via Electronic Submission (in PDF) U .S. Environmental Protection Agency EPA Docket Center Mailcode: 2822T 1200 Pennsylvania Ave. , NW. , Washington, DC 20460 a-and-rdocket@epa .gov Re:	 Docket 10: EPA-HQ-OAR-2002-0058"- -;'(09. { Docket 10: EPA-HQ-OAR-2006-0790
Dear Administrator Jackson: I appreciate the opportunity to comment on EPA's proposed National Emission Standards for Hazardous Air Pollutants for Industrial, Commercial and Institutional Boilers and Process Heaters located at major and area sources , at 75 FR 32006 and 31896 , respectively (June 4, 2010). I have spent a large part of my 30+ year career involved in the measurement and evaluation of criteria, hazardous and other air pollutant emiss ions from boilers and process heaters. My experience includes many field test programs on behalf of industry and EPA to develop data for use in rulemaking and regulatory processes, and research and development programs to understand and control emiss ions from combustion processes. My brief comments g iven on the following pages relate to the technical infeasibility of measuring several of the proposed emission limits

. Sincerely,

# ~£J~ Glenn C

. England Principal Consultant

docum ent1

1 8100 Von Karman Avenue, Suite 600, Irvine, CA 92612 VNIW

.envi roncorp.com Tel: +1949 .261.5151 Fax: +1 949.261.6202G. England comments on proposed boiler and heater NESHAP August 23, 2 .010 2 CO MMENTS ON PROPOSED RULE FOR INDUSTRIAL, COMMERCIAL AND INSTIUTIONAL BOIL ERS AND PROCE SS HEATERS LOCATED AT MAJOR AND AREA SOURCES 75 FR 32006 (Docket ID: EPA-HQ-OAR-2002-0058) and 75 FR 31896 (Docket ID: EPA-HQOAR-2006-0790) Previous studies reported that hazardous air pollutant (HAP) emissions from gas-fired industrial boilers and process heaters are typically near or below detection limits of the state-or-the-art test methods used to measure them (England et aI., 2001). This also can be seen in emissions data provided to EPA for the Boiler MACT Information Collection Request (lCR)

. In a significant departure from scient ific gu idelines (Keith et aI., 1983), EPA has used undetected results at the reported analytical method detection limits along with detected results to establ ish MACT floors and calculate emission limits for HAPs. Because of the extremely low levels of HAPs present in gas-fired boilers and process heaters , many test results are near or below the analytical method detection limits. Further, there are additional sources of error beyond the analytical method that contribute sign ificantly, often dominantly, to the total uncertainty and overall detect ion limits of stationary source emiss ion test methods. Thus, the contribution of undetected results to emission lim its for gas-fired boilers and process heaters, and the large uncertainty inherent in measurements near these levels, is especially significant. 1. Because of large uncertainty in lower values, it is inappropriate to use results that are less than the limit of quantitation for establishing regulatory limits. EPA should use only data that are above the limit of quantitation for the purposes of establishing emission limits for HAPs. The American Chemical Society Committee on Environmental Improvement, which included stakeholders from industry, government and academia, explained the inappropriateness of using data below the lim it of quantitation in describing underlying scientific principles and guidelines for environmental data acquisition and analysis (MacDougal et aI. , 1980 ; Keith et aI., 1983). EPA has cited such guidelines in its discussion of detection limits for stationary source measurements at http://www .epa.gov/ttnemc01/facts.html. Measurements at levels near or below method detection limits have larger uncerta inty than higher levels. In measurement terms, "error" is the difference between a measurement and the true value

. Uncertainty is a statistically defined metric representing random and systematic
­ errors within a population of measurement data at a given level of confidence
- the "fuzziness" of a number. As a measurement value approaches zero, the uncertainty or "fuzz iness" of that value contributed by random error becomes larger

. Only when levels reach a value considerably above the method detection limit, referred to as the limit of quant itation (LOO), does uncertainty fall to acceptable levels

. An uncertainty of up to ±30% at the 99% confidence level is considered acceptable for environmental measurements. Id. A further complication of using results near the lower limit of a method's capability is that the definition of detection lim it varies widely among reference methods, laboratories and/or stack testers, or it is not defined at all. In the absence of uniform definitions and guidance for establishing a method detection limit for CO, for example, test reports may include any number of different values ranging from the lowest resolution on a digital readout, the lowest digit on a spreadsheet, a "comfortable" number rounded up from zero, etc. In its ICR guidance on CO measurements, EPA spec ified that [para.] instrument response should be reported and flagged as above detection lim it, lnclud lnq values less than zero. Any of these values may be below the true overall CO detection limit of the test method, yet results are reported and used by EPA inG

. England comments on proposed boiler and heater NESHAP August23,2010 3 the proposed rulemaking as though they had the same acceptable level of uncertainty as levels above the LOa. 2. T he detection limits reported among different source testers and laboratories varies substantially. EPA should evaluate detection limits achieved in all tests to assure that em ission limits are not established below the limit of quantitation that can be routinely ach ieved in practice. In the emission test data collected for HCI, mercury and dioxins/furans during the ICR, a very wide range of detection limits achieved by different stack testers and laboratories using the same EPA test methods is evident (Figures 1 , 2 , and 3). HCI and mercury detection limits span approximately three orders of magnitude , and dioxins/furans TEO detection limits span four orders of magnitude. One might point to the specific type of source and potential matrix interferences as a source of the variability. Examining the data for HCI and mercury , this does not appear likely because the detection limits for clean , gas-fired sources span almost the same range as detection limits for all fuels including coal, biomass and liquids

. This wide range of method performance is an indication of reproducibility among different testers, even though the same test methods were used in almost all cases. This provides an indication of the significance of factors beyond the analytical method detection limit. These test methods were originally developed for measuring emissions from waste incinerators at concentrations several orders of magnitude higher than gas-fired sources . While the methods may perform sufficiently well in those applications, these results indicate the processes in the test methods are not sufficiently well controlled for reliable measurements near the method detection limits

. EPA should not set emission limits lower than the limit of quantitation that can be routinely _ achieved in practice by most source testers and laboratories. For example , a 99% upper prediction limit (UPL) could be calculated using all of the detection limits reported in EPA's database , and this could be used to establish an alternative measurement performance based minimum limit that can be measured routinely in practice

. The detection limit data used for establish ing the alternative measurement performance based minimum limit need not be lim ited to data in the MACT floor because there is no requirement for EPA to establish limits that can only be measured by the top source testers and laboratories on an occasional good day. Instead, EPA must set limits for which measurements are technically feasible. An example calculation of an alternative minimum emission limit using the same methodology that EPA used for establishing proposed MACT emission limits is shown in Table 1. Neglecting the outliers apparent in Figure 2, there are 304 detection limits reported for undetected mercury results

. The 99% UPL of these detection limits is 3.7E-06 Ib/MMBtu. The corresponding limit of quantitation would be 10/3 times this (Keith et aI., 1983), or 1.2 E-05Ib/MMBtu. This represents an alternative mercury emission limit that could be measured above the detection limits 99% of the time in a 3-run future test by any test team and laboratory. All of the proposed mercury emission limits are less than level. EPA's proposed emission limit for Gas 2 equates to a concentration of few parts per billion. ­ Using the same approach for HCI (Table 2), an alternative method performance based minimum limit of 0.005Ib/MMBtu, or approximately 5 ppm of HC!. Based on this approach, the proposed Gas 2 emission limit appears to be technically infeasible from a measurement perspective. The 99% UPL of the reported detection limits is a very conservative indicator of method performance - perhaps overly conservative. Other metrics may be considered. However, in any event EPA fully consider and understand the disparity in measurement performanceG. England comments on proposed boiler and heater NESHAP August 23, 2010 4 indicated in EPA's database before establishing emission limits that are near or below detection limits. 3. EPA should re-assess test method performance capabiliti es at low concentrations and revis e t h e proposed emission limits to assure that they are not less than the limit of qu antitat ion for their respective measurement methods. Many of the proposed performance test methods for demonstrating compliance with the proposed emission limits were conceived, developed and evaluated in the 1980's and 1990's for application to waste incinerators, municipal waste combustors and coal-fired boilers. They have not been similarly evaluated for concentrations as low as many of the proposed emission limits

. The fact that a method produces a number does not necessarily mean that number is a reliable indication of the true value. The range of detection limits reported in EPA's database indicates the need for a full evaluation of method performance at low concentrations, including precision, accuracy and reproducibility. T ble 1 Examp e es irna Ion f 

### r 0 f 99% UPL for mercury de ec Ion t 

### r r rrruits. a 0 Mercury (excluding high/low outliers) Normal LNNormal Number of Points 304 304 Average 1.25E-06 -1.44E+01 Standard Deviation 1.71E-06 1.37E+00 Skewness 3.24 -0.37 Kurtosis 14.53 -0.26 SE Skewness 0.14 0.14 SkewnessTest Not Normal Normal SE Kurtosis 0.28 0.28 Kurtosis Test Not Normal Normal 99% t-Statistic for UPL 2.34E+00 2.34E+00 99% UPL (Detection limits) 3 .6E-06 3 .7E-06 LOQ 1.2E-05G. England comments on proposed boiler and heater NESHAP August 23, 2010 5 Table 2

. Example est imation of 99% UPL for HCI detection limits.

Hel (excluding high/ low outliersl Normal LNNormal Nu m ber of Poi nts 118 118 Average 5 .67E-04

-8.32E+00 Standard Deviation 9 .12E-04 1.36E+00
Skewness 3.32

-0.15
Kurtosis 11.89 -0 .20 SE Skewness 0.23 0 .23
Skewness Test Not Normal Normal
SE Kurtosis 0.45 0.45 Kurtosis Test Not Normal Normal 99% t-Statistic for UPL 2.36E+OO 2.36E+OO 99% UPL (Detection Limits) 1 .8E-03 1 .6E-03 LOQ 5.3E-03

References England, G.C ., McGrath, T.P. , Gilmer, L" Seebold, J.G., Lev-On, M., Hunt, T. Hazardous air pollutant emissions from gas-fired combustion sources: emissions and the effects of design and fuel type, Chernosphere 42 (2001) 745-764

. MacDougal, D. et. AI. Guidelines for Data Acquisition and Data Quality Evaluation in Environmental chemistry. Anal

. Chern

. 1980 , 52, 14, 2242-2249. Keith, L.H., Crummet, W., Deegan, J., Libby, R.A. , Taylor, J .K

. and Wentler, G. Principles of Environmental Analysis, Anal. Chern. 1983, 55, 2210-2218.G. England comments on proposed boiler and heater NESHAP 

### August 23, 2010 6

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, 1 5 9 13 17 21 25 29 33 37 41 45 49 53 57 61 65 69 73 77 81 85 89 93 97101105109113117121 L..

_ - - - - - 1 Figure 1. HCI detection limits reported in Boiler MACT ICR database version 5 compared to proposed emission limit for Gas 2 and prospective limit for Gas 1 fuels.- - -- --- ---- - - ---- - - - ---- G

. England comments on proposed boiler and heater NESHAP August 23, 2D1 0 7

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- - - - - - - ­ Figure 3. Dioxins/furans TEO detection limits (for BDL data only) reported in Boiler MACT ICR database version 5 compared to proposed emission limit for Gas 2 and prospective limit for Gas 1 fuels.

### Attachment 3 

### RELEVANT PASSAGES FROM APIINPRA'S COMMENTS E-Docket No. EPA-HQ-OAR-2002-0058-2960.1
(1) Argument That EPA Must Determine That There Is Means of Control Achieved in Practice within the Category [Pages 64-70.] 

### A fundamental issue facing EPA in the present rulemaking is whether Congress intended it to set the so-called "floors" for existing and new units within a particular subcategory solely on the basis of emissions test data, without regard to whether there is a technically feasible means of emissions control in actual usage within the subcategory which is sufficient to achieve the floor. EPA squarely addressed this issue in its 2004 Boiler MACT rulemaking, saying: Furthermore, setting emission standards on the basis of actual emission data alone where facilities have no way ofcontrolling their HAP emissions would contravene the plain statutory language as well as Congressional intent that affected sources not be forced to shut down. I 

### EPA explained: "This is because the statute requires EPA to set standards that are duplicable by 

### others.t" Thus, in 2004, EPA interpreted the CAA as requiring it to determine when it sets the floors whether there are technically feasible means ofcompliance in actual usage within the subcategory. However, in their challenge to the 2004 Boiler MACT standard before the D.C. Circuit, NRDC and the other citizens groups disputed EPA's interpretation, contending that EPA must focus only on actual emission rates in setting the floor. 3 

### EPA vigorously defended its view in its responsive brief, saying: " ..

. Congress intended EPA to base its standards on the amount of emission reduction sources can achieve by the application of some form ofcontrol, and not on the levels some source may emit simply because ofcharacteristics of the source or its operation that cannot be replicated by others. ,,4 Moreover, in EPA's view, it has a duty to examine the technical feasibility ofa floor: "

... Congress did not intend that EPA considerjust the level of emissions , but rather that the Agency consider how those emission levels are achieved and base the standard on the lowest level that can be achieved through the implementation of some sort of emission control." 

### !d. (emphasis added). The court, however, never decided this issue because it vacated the standard on a different 

### ground.' Thus , EPA must face the issue again, in the present rulemaking. Unfortunately, EPA on the whole appears in its June 4,2010 proposal to be adoptingwithout an explanatory legal analysis - the position ofthe citizen groups in the NRDC case. On the one hand, EPA acknowledges that " [s]ection 112(d)

... requires [it] to set emission standards for [HAPs] emitted by major station ary sources based on the p erformance of the maximum

1 69 Fed

. Reg
. 55218,55233 col. 1 (Sep

. 13,2004). 2 Id

. 3 Environment al Petitioners' Initial Opening Brief, at 31 (June 12,2006) (NRDC v. EPA, Case No

. 04-1385). 4 Final Brief for Respondent United States Environmental Protection Agency, at 49 (Dec. 4, 2006). 5 See NRDC v. EPA, 489 F.3d 1250, 1261 (June 8, 2007).

### achievable control technology (MACT)". 6 [emphasis added]. Also, EPA discusses at length whether fuel switching is a technically feasible and hence cognizable form of control within a given subcategory ofboilers and process heaters

. ' Thus, EPA shows some sign ofadhering to its 2004 position. But, on the other hand, EPA appears to have abandoned that position inasmuch as it actually calculated its proposed floors solely on the basis of emission levels, without making any effort to evaluate whether technically feasible means of achieving those levels are in actual use and hence generally available to the units within the subcategory

. For example, with respect to existing units, EPA stated in the preamble: EPA must consider available emissions information to determine the MACT floors. For each pollutant, we calculated the MACT floor for a subcategory of sources by ranking all the available emissions data from units within the subcategory from lowest emissions to highest emissions , and then taking the numerical average of the test results from the best performing (lowest emitting) 12 percent of sources. 75 Fed. Reg. at 32019 col. 1. With respect to new units, EPA stated: "Similar to the MACT floor process used for existing units, the approach for determining the MACT floor must be based on available emissions test data ." More to the point, the relevant technical support document confirms that, as the preamble implies, EPA in fact based its floor determinations for existing and new units 

### solely on the basis of available emissions data, without any examination ofwhether units have some feasible and proven way of achieving the floors." Indeed, the technical support document is explicit: In response to concern over MACT floor analyses based on control technologies, the new approach ranks the performance of each pollutant according to the lowest emitting (based on stack test data), regardless of control technologies installed on the boiler/process heater. 10 Thus, EPA appears on the whole to have changed its mind about the methodology Congress intended EPA to use in determining the floors for existing and new units, albeit without providing any explanatory legal analysis. API respectfully urges EPA to return to its 2004 position. The evidence of congressional intent strongly and unequivocally shows that Congress intended the regulatory machinery of sections 112(d)(1)-(3) to operate so as to: (1) identify those forms of emission control in actual use which produce maximum reductions in HAP emissions when applied to particular units; (2)

6 75 Fed

. Reg. at 32008 col. 1 7 Id

. at 32019

. 8 Id. at 32027 col. 3. 9 See ERG, Mact Floor Analysis (2010) for the Industrial, Conun ercial, and Institutional Boiler and Process Heaters National Emi ssion Standards for Hazardous Air Pollutants

- Major Source, at 3, 10 (April 20 I0) (Docket ID No
. [INSERT))

. 10 Id. at 3.
2press all existing and new units ofthe same type from the standpoint ofbasic production design to apply those controls or otherwise achieve at least the same reduced level of emissions, either through innovation, reduced operation or some other way ; and (3) preserve, protect and enhance the economic vitality ofthe national economy. Thus, in line with other key provisions ofthe Clean Air Act, such as section 111, sections 112(d)(1)-(3) are technology-forcing. They are designed to propagate the best HAP emissions control in actual use, not to produce dictates achievable only though widespread shutdowns and installation ofnewly designed production equipment. Clearly, to implement that congressional purpose, EPA must base the floors not only on available emissions test data, but also on a determination that some technically feasible means of achieving the floor is generally available to the units within the subcategory, as demonstrated by actual use within the subcategory. Otherwise, ifEPA were to base the floors for a particular subcategory only on available test data, without examining technical feasibility and actual usage, it could produce a MACT standard which a majority - indeed even a plurality

- ofunits in the subcategory would have no hope of achieving

. That would be a perversion of the congressional vision

- which is to identify and spread the use ofbest controls, while preserving economic vitality, not to force widespread shutdowns and re-capitalization within industry segments. Section 112 is replete with unassailable textual evidence that Congress authorized EPA to set a floor 

### only at a level which units within a subcategory generally had some means of achieving as a technical matter, as demonstrated by actual usage within the subcategory. 

### In implementing section 112, EPA must give full effect to that textual evidence. 

### See Whitman v. 

### American Trucking Association, Inc., 531 U.S. 457 , 485 (2001) ("The EPA may not construe the statute in a way that completely nullifies textually applicable provisions meant to limit its discretion ."). Key pieces of such evidence are as follows :

• Section 112(d)(2), the overarching directive to EPA for establishing a MACT standard for any given subcategory, requires EPA to set the standard at a level that corresponds to the maximum degree ofreduction ofHAP emissions that is achievable for the subcategory through the 

### "application of measures, processes, methods, systems, or techniques". (Emphasis added.) Sections 112(d)(2)(A)-(E) then define those various forms of emissions control as including a wide range of "measures". Specifically listed are process changes, materials substitution, enclosures, add-on control technology, work practices, and operational standards. Not listed , or even suggested, were changes to the basic design of the units in question, the HAP-emitting production equipment. Section 112(d)(2) thus reflects and reveals a fundamental conceptual orientation on the part of Congress which is universal to all ofthe technology-based standard-setting processes dictated by the CAA. 

### In crafting the MACT standard setting process , Congress took production equipment, such as boilers and process heaters , as a given and envisioned that the standards EPA generated would stimulate the "application" of control "measures" to the production equipment, without change to the basic design ofthe equipment. 

### In other ( words, section 112(d)(2) evidences a fundamental mindset on the part of Congress , namely: Congress sought to control HAP emissions by forcing investments only in control measures. It did not seek to control HAP emissions by dictating or restricting basic designs ofproduction equipment. Congress left individual companies free to make

3fundamental decisions about their core capital investments, especially the basic design of production equipment.

• Section l12(d)(3)(A) is also an expression of, and hence reveals, that mindset. It calls on EPA to set the floor for existing units within a subcategory at the average level actually "achieved" by the best "performing" 12 percent. The use of the terms "achieved" and "performing" imply that Congress had in mind a cause-and-effect relationship between the actual in-use application ofone or more ofthe control measures listed in section l12(d)(2)(A)-(E) to a piece of HAP-emitting equipment and a resulting actual level of reduced emissions from the equipment. The terms indicate that Congress distinguished between such measures and the fundamental design ofthe equipment and wanted to identify those measures by which EPA could reliably establish norms ofbehavior for pieces of equipment of like design. In other words, Congress sought to spread the use of those controls proven to be best by actual practice, but not force changes in the fundamental design ofproduction equipment within an industry segment, 

### e.g., through shutdowns and re-capitalization. IfEPA, however, were to base the floor for existing units within a subcategory only on average emissions test data, without examining the cause-and-effect relationships, it could end up setting a floor which would operate t-o force changes in fundamental design ofproduction equipment. That would be contrary to the textual thrust of section 112(d)(3)(A), especially in the light ofthe fundamental structure of section 112(a)(2), as EPA recognized in the first Boiler MACT rulemaking

. In short, Congress authorized EPA to set behavioral norms 

### only for the application of proven best controls to existing HAP-emitting equipment within an industry segment. 

### It did not authorize EPA to set norms for the basic design of such equipment.

• The first sentence of section 112(d)(3), which specifies the methodology EPA must follow to set a floor for new units, carries the same meaning. It provides: "The maximum degree of reduction in emissions that is deemed achievable for new sources in a category or subcategory shall not be less stringent than the emission control that is achieved in practice by the best controlled similar source . . . ." Once again, the phrases "reduction in emissions", "achieved in practice" , and "best controlled" all bring to mind, especially injuxtaposition with section l12(d)(2) , the application ofcontrol measures to HAP-emitting production equipment. The first sentence of section 112(d)(3) thus confirms that Congress regarded the basic design of such equipment as a given andsought to identify the forms of control that experience showed to be the most effective and that companies could apply in a replicable way without altering the basic design of the production equipment.

• Section lI2(d)(6) also reflects this mindset. It requires EPA to "review, and revise as necess ary (taking into account developments in practices , processes, and control technologies), emission standards promulgated under this section no less often than every 8 years ." The reference to "practices, processes, and control technologies" indicates what Congress regarded as factors ofsignificance in setting behavioral norms for controlling HAP emissions. In the light of section 112( d)(2)(A)-(E) , those factors are limited to means of control applicable to an already established basic design ofthe relevant piece of

4productive equipment. Section l12(d)(6) thus confirms that Congress did not intend to authorize section 112(d) standards that could constrain the choice of such basic design

. Other provisions ofthe CAA provide further evidence ofCongress ' intent. First, several provisions other than section 112 call for the establishment oftechnology-based emission standards for stationary sources, namely: section 111 (New Source Performance Standards (NSPS)) , section 129 (incinerators), section 165 (Best Available Control Technology (BACT) for certain new construction projects), section 172(c)(l) (Reasonably Available Control Technology (RACT) for existing sources as control by State Implementation Plans), and section 173 (Lowest Achievable Emission Rate (LAER) for certain new construction projects). In each case, the basic idea is to set a behavioral norm based on the application of available and "demonstrated" control technology, without fundamentally compromising the freedom of companies to choose the basic design oftheir production equipment. There is no sign in the CAA that Congress intended section 112(d) to operate differently or to authorize EPA in setting MACT standards to encroach fundamentally on that basic freedom. Second, section 101(b)(1) declares that an overarching purpose ofthe entire CAA is "to protect and enhance the quality of the Nation 's air resources so as to promote the public health and welfare and 

### theproductive capacity 

## of itspopulation." [Emphasis added.] If EPA were to set floors under section 112 solely on the basis of emission rates, without regard to the cause-and-effect relationship between available proven controls and such rates, inevitably it would defeat that purpose by severely compromising the Nation's productive capacity

. The legislative history of section 112 confirms that Congress was aiming to identify and spread best, in-use-proven controls ofHAP emissions within the appropriate categories and subcategories ofHAP-emitting equipment, without fundamentally constraining the ability of companies to choose the basic design ofthat equipment. During the Senate debates on the conference bill that became the CAA Amendments of 1990, Senator Durenberger, the primary author of section 112, stated: "For each category of sources, EPA will promulgate a standard which requires the 

### installation ofmaximum achievable control technology (MACT) by the sources in the category. "l! Later in the same debates, Senator Chafee, one ofthe managers ofthe legislation, echoed Senator Durenberger's description.f Still later, Senator Baucus, another manager ofthe legislation, stated: Mr. President, the MACT requirement is the cornerstone ofthis approach. It means that the source may need to install a scrubber, selective catalytic reduction, adjust the combustion temperature ofits equipment, substitute materials or apply other methods to reduce air emissions.i'' Plainly, in their mind, section 112(d)(1)-(3) would cause companies to take action only to apply controls to an established equipment design, as opposed to cause changes in such design. IfEPA were to set the floors solely on the basis of emissions test data, without examining the

II Committee on Environment and Public Works, U.S. Senate, Legislative History of the C lean AirActAmendments of 1990, S. Prt. 103-38, at 863 (Nov. 1993)

. 12 [d

. at 951.
13 [d

. at 1029

. 5technical reasons for the actual emission level , it could end up setting a standard that a company could achieve only by mixtures of shutdowns and shifts in basic design ofproduction equipment, as opposed to the application ofcontrol measures. Thus, EPA would fail to keep faith with the intent of Congress. Finally, no court decision has addressed squarely whether EPA may set a floor solely on the basis of emissions test data, without regard to the existence of a proven means ofachieving the floor. The D.C. Circuit in the Brick MACT case, 

### Sierra Club v

. EPA, 479 F.3d 875 (2007) , did not address that issue squarely. As characterized by EPA in the June 20 I0 proposal, the closest the court came to addressing that issue was to rule that "[ fJloors for existing sources must reflect the average emission limitation achieved by the best-performing 12 percent of existing sources , not levels EPA considers to be achievable by 

### all sources.,,1 4 [emphasis added]. That is a different issue. An individual source within a particular subcategory may not be able to achieve a floor because ofcost, even if a proven means ofcontrol is available to it from a technological standpoint. As shown above, Congress did 

### not authorize EPA to set a floor on the basis ofemissions test data, without also determining that there are technologically feasible means ofachieving that floor which actual usage within the subcategory has shown are available to all of the units in the subcategory given their particular basic design. IfEPA were to determine that there are no-such means of control across the subcategory, it would have to subcategorize further in order to group units of like design or, if that were not practicable, base the ultimate standard on a universally applicable work practice, such as annual tune-ups, as EPA has proposed here in the case of Gas I units. 

### (2) Argument on Work Practice Standard. [Pages 34-36.] EPA proposes to establish as the emissions standard for existing and new boilers and process heaters that combust natural gas or refinery gas (Gas 1) a work practice consisting of annual tune-ups. EPA gives two reasons in support ofthis stance'f. First, EPA estimates that the cost ofcompliance with emission limits would be exorbitant



### - $14 billion

- because compliance would require the widespread installation of a system of combined fabric filter and wet scrubber technology. Indeed, the database does not show any Gas 1 unit whatsoever currently employs such technology. Second, that cost would create perverse incentives which could result in more HAP emissions than would otherwise occur. For example, a company with a solid fuel-fired boiler might be deterred from switching to a natural gas-fired boiler; and a company with a natural gasfired boiler might be encouraged to switch to a solid fuel-fired boiler. At the same time, EPA solicited comment on specifically how it couldjustify the use of its authorities under section 112(h) to set a work practice standard. It also solicited comment on

14 75 Fed. Reg

. at 32009-10
1 5 See 75 Fed

. Reg
. at 32025 cots. 2-3, 32029

. 6whether, instead ofrequiring the tune-up work practice, it should adopt the numerical emission limits for existing and new units it specified in Table 4 of the preamble'". We comment on the latter point in Section VI ofthese comments
. API/NPRA strongly support EPA's proposal to establish annual tune-ups as the MACT standard for existing and new Gas I boilers and process heaters , with the revisions in the details ofthe work practice discussed below, and respectfully urges EPA to adopt that proposal in final form, rejecting any comments urging the adoption ofnumerical emission limits, such as those as to which EPA solicited comment. In thus adopting annual tune-ups as MACT, EPA should recognize expressly that they constitute the floor for existing and new Gas I boilers and process heaters and that no beyond-the- floor requirement would be appropriate for the reasons EPA gave in support of its proposal, namely: the exorbitant cost ofcompliance and the perverse incentives

. Even ifEPA is able to calculate an emissions rate that reflects the performance ofthe lowest-emitting unit or units within the Gas I subcategory, EPA still must examine its database to determine whether it reveals any in-use control measure that would be technologically available to all ofthe units in the subcategory and generally sufficient for them to achieve the identified emissions rate, putting aside costs. IfEPA cannot identify such a control measure, it may not translate the emissions rate into a standard, because it would then be interfering with fundamental choices about the basic desi gn ofproduction equipment. Instead, EPA must subcategorize further or, ifthat is not possible, search under the authority of section 112(d){2) for any measure that has been shown to work in practice to reduce HAP emissions and is generally technologically feasible within the subcategory. Such a measure would constitute the "floor." For the gas-fired boiler and process heater subcategories , it is not possible to discern in the Gas I database any control measure whatsoever through which the plurality ofunits in the Gas I subcategory could reach the emissions level ofthe lowest-emitter(s). To the contrary, the database shows that the primary explanation for the differences in emissions rates is the differentials in the design and operating char acteristics ofthe Gas I units and the inherent variability ofthe fuel. In these circumstances, EPA is not authorized to set the MACT standard in line with the emissions ofthe lowest emitters and must abandon the attempt. It is not possible, in this case, for EPA to subcategorize further on the basis ofdesign or operating characteristics and then apply the floor methodologies in section 112(d)(3) to derive numerical emission limits for appropriate sub-grouping ofGas I units. The Gas I database lacks sufficient information to allow rational sub-grouping ofall ofthe Gas I units. In addition, the database lacks sufficiently robust emissions data to allow the calculation offloors for each ofthe resulting sub-groups. As we have discussed elsewhere, we do not feel the database information is even adequate for allowing emission limits to be calculated for the subcategories recommended in the proposal much less for SUb-groupings ofthose subcategories. Since it is not possible for EPA to set floors for Gas I units under section 112(d)(3), EPA is relegated necessarily to section 112(d)(2) , which calls for a search through the database for any efficacious form ofcontrol in significant actual usage. The only such control measure.that

1 6 [d

. at 32025 col. 3 , 32029 col. 3.
7can be discerned in the data available is tune-ups. Thus, tune-ups constitute the defacto "floor" for existing and new units. EPA then must determine under section II2(d)(2) whether there are "beyond the floor" measures, e.g., demonstrated technologies not in significant actual use within the Gas I subcategory, which could serve as a basis for a more stringent MACT standard. EPA then must determine whether the use of such measures would be "achievable", taking into account costs of control, non-air quality health and environmental impacts, and energy requirements. Here, there are such measures, i.e., a system combining fabric filter and wet scrubber technology. But they are not "achievable" because ofthe exorbitant cost and perverse incentives which EPA outlined in its proposal. Thus, the heart ofEPA's rationale for its tune-up proposal is actually a traditional "beyond the floor" analysis. Finally, EPA must set a standard for HAPS from Gas I units, reflecting the application of tune-ups. Here, however, no single numerical standard is technically feasible. The design characteristics ofthe units and, hence the emissions-reduction potentials of annual tune-ups, vary widely. Consequently, there is no single emission rate or even percentage of emission reduction that could be translated into a numerical limit. EPA has no choice but to set a work practice standard. EPA has ample authority to set the standard for Gas I units in terms ofa work practice. First, section II2(d)(1) authorizes - indeed requires - EPA to set "emission standards" for each category or subcategory, and section 302(k) defines "emission standard" to include work practice standards. Second, section 112(h) independently authorizes EPA to use a work practice standard in two situations. The first [section II2(h)(2)(A)] is where the emissions are not susceptible to control after the underlying source generates them, as is the case with fugitive emissions (e.g., emissions from demolition). Here, tune-ups arguably fit that situation because they operate to minimize emissions, rather than reduce them after the source generates them. The second situation is where the application of a system for measuring the effect ofthe control measure for enforcement purposes is not practicable. (3) 

### Argument on Rationality. [Pages 54-55.] In making the determinations required by section II2(d), e.g., determinations as to the emission rates which represent the technological "floor" for new or existing units, EPA must satisfy basic requirements ofrational decision-making. Congress explicitly consigned to the federal courts of appeals, and in particular the D.C. Circuit in the case of section II2(d) standards, the job ofreviewing EPA's final actions upon petition and overturning them for failure to satisfy those rationality requirements. 17 Thus, rationality principles constitute a fundamental underpinning of section 112(d), notwithstanding the formulaic nature of section II2(d)(3). To survivejudicial review, a MACT standard must be based demonstrably on rational decision-making.

17 See CAA § 307(d)((9), 42 U.S.c. § 7607(d)(9). 8In reviewing EPA 's actions under the CAA generally, the D.C. Circuit has firmly embraced that interpretation ofthe Act in many opinions. A much-quoted passage is the following one :We will not set aside a final rule under the Clean Air Act unless the underlying agency action was "arbitrary, capricious , an abuse of discretion, or otherwise not in accordance with law " or "in excess of statutoryjurisdiction, authority, or limitations, or short of statutory right." 42 

# o.s.c. § 

### 7607(d)(9)(A) & 

### (C). The "arbitrary and capricious" standard deems the agency action presumptively valid provided the action meets a minimum rationality standard. 

### See, e.g., Small Refiner LeadPhase-Down Task Force v

. EPA, 227 

## Us. App. D.C. 201, 705 F.2d 506, 520-21 (D.C. Cir. 1983). 

### In applying this standard we determine whether the agency has considered the relevant factors and articulated a rational connection between the facts and its choices. 

### See Motor V ehicle Mfrs. Ass ' n of the United States v. 

### State Farm Mut. Auto. Ins. Co., 463 

## Us. 29, 43, 77 L. 

### Ed

. 2d 443, 

### 103 

### S. Ct. 2856 (1983)

. While we carefully review the factual record, we will give due deference to the agency especially when the agency action involves evaluating complex scientific or statistical data within the agency's expertise. 

### See Ethyl Corp
. v. EPA, 176 

## Us. App. D.C. 373 , 541 

### F.2d 1, 34-36 (D.C. Cir. 19 76) 

### (en bane). [Emphasis added in bold] 

### NRDC v. EPA, 194 F .3d 130, 136 (D .C. Cir. 1999). In a case arising under section 112(d), then Judge Roberts, now ChiefJustice ofthe U .S

. Supreme Court, quoted with approval the sentence highlighted in bold print in the above quotation, clearly intending to apply the rationality principle to the MACT standards at issue in

. I 18 h t at particu ar case. Indeed, in leading cases involving section 112(d) , or its mirror-image counterpart, section 129(a)(2), 42 U.S.C. § 7429(a)(2), the D.C

. Circuit has upheld, elaborated on and applied the rationality principle repeatedly. A prime example is 

### Cement Kiln Recycling Coalition v. EPA, 255 F.3d 855 (2001), where the court stated : In Sierra Club, we held that CAA section [129(a)(2)]

... requires EPA to make a reasonable estimate ofthe performance ofthe top 12 percent of units. While acknowledging that EPA has authority to devise the means ofderiving this estimate, we made clear that the method EPA selects must allow a reasonable inference as to the performance ofthe top 12 percent ofunits. We emphasized that EPA must show not only that it believes its methodology provides an accurate picture ofthe relevant sources' actual performance, but also why its methodology yields the required estimate

. ... In National Lime II, we addressed a Sierra Club

18 See Sierra Club v. EPA, 353 F

.3d 976 , 978 (D.C. Cir. 2004)

. 9petition challenging emission standards set under section [112( d)] for non-hazardous waste-burning Portland cement kilns. In evaluating EPA's standards, we reiterated Sierra Club's central holding that to comply with the statute, EPA's method of setting emission floors must reasonably estimate the performance ofthe relevant best performing plants. 

### Id

. at 861-62 (emphasis added in bold; citations and quotation marks omitted). Evidently, in the court's view, a "floor" determination is rational only if it accurately reflects actual performance. Here, it would be the antithesis ofrationality for EPA to base a section 1l2(d) determination on data that is unrepresentative ofactual reality. Such data simply cannot depict actual performance accurately. That would be arbitrary and capricious, and the D.C. Circuit would strike down any MACT standard based on such a determination.

[END]

10

### KEY LEGAL POINTS Comments of AP/ INPRA on EPA's Proposed MACTStandards for Gas-Fired Boilers and Pro cess Heaters A. Background

• Gas-fired boilers and process heaters ("boilers") vary greatly in size, design and typical usage , so that HAP emissions vary as well. Emission data from boilers at one end ofthe spectrum cannot possibly be representative of emissions from units at the other end.

• The database EPA has gathered indicates that emissions ofHAPs from gasfired boilers are very small , often at or below limits of detection and generally below the "limit of quantitation" ("LOQ"), the lowest level of emissions at which current measurement technology can generate reliable results

. (See the attached comments from Glenn England .)

• The only form ofcontrol discernible in EPA's database for gas-fired boilers is good combustion practices, notably tune-ups. Consequently, EPA 's proposed work practice standard requiring tune-ups for boilers burning natural gas or refinery gas ("Gas-I") is sensible and required by the Act, as explained below. Such a standard should govern boilers burning chemical process gas as well. A tune-up provides for the optimal reduction of all pollutants by operating the boiler in an energy efficient manner. This efficient operation minimizes thefuel input into the boiler and consequently minimizes the emissions of pollutants.

• EPA proposed numeric limits for gas-fired boilers. They were calculated on the basis ofthe lowest emissions levels in its database, without regard to whether there are technically feasible means of emissions control in actual usage within the category which are sufficient to achieve the limits

.
• Compliance with the proposed limits would require, if compliance is possible at all, the installation ofan activated carbon injection system, a fabric filter system, a wet gas scrubber, and an oxidation catalyst. None of the first three forms of control are in usage within the gas-fired boiler subcategory. Certainly, there is not a single gas-fired boiler that has all four in actual usage.

• As EPA recognized, the cost of such installation would be enormous, yet the emissions reductions tiny. The cost is so great it could cause widespread

. mothballing and shutdown ofgas-fired boilers or entire plants, and shifts to solid -fuel fired boilers. It would interfere greatly with the business decisions companies make about their investments in sources ofpower.

• The lowest emission levels in the database reflect the basic design ofthe boilers at one end ofthe vast design spectrum ofboilers , as opposed to the

### application of control technology. Thus, thousands ofboilers ofdifferent designs would be expected to conform to the emissions performance of a few basic designs, even though none ofthe boilers in the spectrum use the control technologies necessary for compliance.

• We cannot believe that Congress intended this. In our view, Congre ss designed section II2(d) to identify the best form ofHAP control in actual use within a category and then to force the spread ofthat technology within the category.

• Here, the only discernible form ofcontrol among gas-fired boilers is tune-ups. Thus , we support adoption ofthe work practice standard for gas-fired boilers, not the numeric standards. 

## c. Legal Point: A Work Practice Standard for Gas-Fired Boilers Is Fully Au thorized by Section 112(h).



### • Section II2(h)(2)(B) authorizes the use ofa work practice standard whenever "the application ofmeasurement methodology to a particular class of sources is not practicable due to technological and economic limitations."

• Per the attached paper by G. England, the use ofcurrent measurement methodology to show compliance with the extremely low numerical limits proposed by EPA for gas-fired units is not practicable. That methodology is not capable ofreliably measuring emissions levels as low as those limits because they are below the LOQ. D. Legal Point: A Work Practice Standard for Gas-Fired Boilers Is Authorized and Required by Section 112(d).



### • Section lI2(d) requires EPA to set the MACT floors not only on the basis of available emission data, but also on a determination that there is some technically feasible means ofcontrol in actual usage within the subcategory that is sufficient to achieve the floor. There must be some pathway to compliance that is discernible in the database for the subcategory

.
• First, the terms " achieved," " controlled," and "performing" in section lI2(d)(3) strongly imply that Congress had in mind a cause-and-effect relationship between the actual in-use application of some form of control to a piece of equipment and the resulting actual level ofreduced emissions.

• But more important is a fundamental mindset. Congress took production equipment, such as boilers, as a given and envisioned that the MACT standards EPA generated would require the application ofcontrols to such equipment, without change to the basic design ofthe equipment.

2• Congress was aiming through section II2(d) to identify best forms ofcontrol used in practice within a category and to force the spread ofthat technology within the category. It wanted to control HAP emissions by forcing investments in control measures, not by dictating or restricting basic designs of control equipment.

• To be faithful to that mindset, EPA cannot base its " floor" determination only on available emissions data. It must also examine whether the units in the category have a compliance pathway available to them consisting of controls that have been shown to be feasible and effective in practice for the category. Otherwise, EPA could produce a MACT standard that would force all units to apply controls that no single unit ever employed or else abandon the equipment and invest in other forms ofproduction

.
• There is no D .C. Circuit ruling to the contrary.

• EPA ordinarily would set the floor at a numeric level which units within the subcategory generally have some means of achieving, as demonstrated by actual usage within the subcategory

. If that is not possible, EPA would set a work practice standard. Section 112(d)(l) gives EPA authority to do that. It requires EPA to set "emission standards," and section 302(k) defines "emission standard" as including work practice standards. Section 112(h) is not an exclusive source of authority for setting such standards.

• Here, by focusing blindly only on emissions data, EPA is proposing to force gas-fired boilers to apply add-on controls such as fabric filter and wet scrubber technology, even though not a single gas-fired boiler in the data isusing such add-on controls. The consequence would be a movement away from the use of gas-fired boilers in one form or another.

• The only fonn ofcontrol used in practice that is discernible in EPA's database for gas-fired units is tune-ups. EPA therefore has no choice but to set the MACT standard to require tune-ups. However, there is no single numerical limit that reflects the application oftune-ups to the entire range of gas-fired boilers. EPA therefore has no choice but to set a work practice standard. 

### E. Conclusion: EPA should adopt the proposed work practice standard for gas-fired boilers.
Attachments (1) Relevant provisions of sections 112(d), lI2(h), and 302 (2) Comments submitted by Glenn England (3) Relevant passages on legal matters from APIINPRA's comments

3