## National Em **ission Standards for Hazardous**  **Air Pollutants**  **fro m**  **the Pulp and Paper Industry (40**  **CFR Part**  **63 ,**  **Subpart S)**  **Residual Risk and Te**  **chnology Review** **, Final**  **Amendments**

**Response to Public Comments**  **on December** 

**27, 201 1 Pr**  **oposal**

U.S. Environmental Protection Agency Office of Air Quality

Planning and Standards Sector Policies and Programs Division Research Triangle Park, NC 27711

July 31, 2012ii 

## Ta **ble of Contents** Page 1. Introduction

................................ ................................ ................................ ................................ . 1 2. Summary

of Changes since Proposal

................................ ................................ .......................... 2 3. Summary

of Public Comments

................................ ................................ ................................ ... 3 4. Risk Assessment

................................ ................................ ................................ ......................... 5 4.1 Risk Assessment Inputs
................................ ................................ ................................ .... 5 4.1.1 Processing of ICR Data into Modeling File

................................ ................................ . 5 4.1.2 Changes to Mill

- specific NEI Data

................................ ................................ .............. 8 4.2 Risk Assessment Methods

................................ ................................ ................................ 9 4.2.1 Modeling of MACT Allowable Emissions

................................ ................................ . 13 4.2.2 Modeling of Facility wide Emissions

................................ ................................ .......... 15 4.2.3 Modeling of Acute Exposure

................................ ................................ ...................... 17 4.2.4 Multipathway

Screening

................................ ................................ ............................. 22 4. 2.5 Dose

- response Benchmarks

................................ ................................ ........................ 27 4.3 Uncertainties in Risk Assessment

................................ ................................ .................. 39 4.4 Risk Assessment Results

................................ ................................ ................................ 41 4.5 Demographics

................................ ................................ ................................ ................. 60 5. Technology

Review

................................ ................................ ................................ .................. 66 5.1 EPA’s Authority

under CAA Section 112(d)(6)

................................ ............................ 68 5.3 Bleaching Standards

................................ ................................ ................................ ....... 72 5.4 Kraft Pulping Condensate Standards

................................ ................................ .............. 74 5.4.1 General Comments on the Kraft Pulping Condensate Standards

............................... 74 5.4.2 Technology , Proposed Numerical Limits, and Variability Associated with Kraft Condensate Collection and Treatment

................................ ................................ ..................... 79 6. Unregulated Sources

................................ ................................ ................................ ............... 102 7. Startup, Shutdown, and Malfunction

................................ ................................ ...................... 105 7.1 Authority

for Removal of the SSM Exemption

................................ ........................... 105 7.2 Startup and Shutdown

................................ ................................ ................................ .. 114 7.3 Malfunction and Affirmative Defense

................................ ................................ ......... 127 8. Excess Emissions Allowances

................................ ................................ ................................ 157 8.1 LVHC Sy stems (1 Percent)

................................ ................................ .......................... 170 8.2 HVL C S ys tems (4 Percent)

................................ ................................ .......................... 171 8.3 Steam Stripper Sy stems (10 Percent)

................................ ................................ ........... 172 9. Testing and Monitoring

................................ ................................ ................................ ........... 174 9.1 Repeat Testing

................................ ................................ ................................ .............. 175 9.2 Emissions Test Methods

................................ ................................ ............................... 177 9.3 Electronic Reporting

................................ ................................ ................................ .... 178 10. Compliance Dates

................................ ................................ ................................ ................. 1 83 11. Regulatory

Impacts
................................ ................................ ................................ ............... 186 12. Miscellaneous Comments

................................ ................................ ................................ ..... 195 12.1 Commenter Endorsements

................................ ................................ ........................ 195 12.2 Other Comments

................................ ................................ ................................ ....... 195 Appendix A. Mills Providing NEI Revisions

................................ ................................ ............. A

- 1iii 

## List of **Ta bles**  Page Table 1. List of Commenters on 40 CFR Part 63 Subpart S, Proposed December 27, 2011 (76 FR 81328)

................................ ................................ ................................ ................................ . 4 Table 2. Comparison of Emission Rates in EPA’s Documents with Each Other and with Those Found in 2005 and 2009 Toxics Release Inventories

................................ .......................... 5 Table 3. Acute Multipliers by Emission Process Group for Risk Modeling for Subpart S (MACT Code 1626

- 1)

................................ ................................ ................................ ................... 21 Table 4. Comparison of Acrolein RfC Used b y Various Government Organizations

.................. 31 Table 5. Data on Methanol Collection and Percent of Time below De Facto Proposed Collection Standard from Georgia

- Pacific Kraft Mills

................................ ................................ . 90 Table 6. Kraft Condensate Treatment Standards Considered for Promulgation

.......................... 90 Table 7. Over

- Collection L evels to Demonstrate Compliance with lb/ODTP Collection Requirements

................................ ................................ ................................ ................................ 96 Table 8. Condensate Collection Characteristics at Four Kraft Mills

................................ ............ 96 Table 9. Capital Cost Estimate for Redundant S ys tems
................................ ............................. 168 Table 10. Costs of Proposed Condensate T reatment Standards

................................ ................. 187 Table 11. Summary

of Nationwide Costs and Cost Effectiveness for the Kraft Condensate Regulatory

Options

................................ ................................ ................................ ..................... 192 Table 12. Summary

of Estimated Nationwide Environmental and Energy I mpacts
.................. 192 

## List of Figur **es** Page Figure 1. EPA Calculation Methodology ..................................................................8 7 Figure 2. AF&PA Recommended Calculation Methodology ..........................................8 8iv 

## List of **Acronyms and Units of**  **Measur e**  AAL Acceptable Ambient Level ACC American Chemistry Council Act Clean Air Act ADTBP Air

- Dried Ton of Bleached Pulp ADTUBP Air

- Dried Ton of Unbleached Pulp AEGL Acute Exposure Guideline Level AERMOD AMS and EPA’s AERMIC Model AF&PA American For est & Paper Association AFS EPA’s Air Facility S ys tem AIRS EPA’s Aerometric Information Retrieval Sy stem AMOS Ample Margin of Safety AOX Adsorbable Organic Halides APPCO Alabama Pulp & Paper Council ASB Aerated Stabilization Basin AST Activated Sludg e Treatment BACT Best Available Control Technology BART Best Available Retrofit Technology BAT Best Available Technology Economically

Achievable BBDR Biologically

- Based Dose

- Response BID Background Information Document BL Black Liquor BLO Black Liquor Oxidation BMS Burner Management Sy stem BOD 5 5

- Day

Biochemical Oxygen Demand CAA Clean Air Act CalEPA California Environmental Protection Agency CCA Clean Condensate Alternative CDC Centers for Disease Control and Prevention CDX EPA’s Central Data Exchange CEDRI EPA’s Compliance and Emissions Data Reporting Interface CEMS Continuous Emissions Monitoring Sy stem CFD Computational Fluid Dynamic (Model) CFR Code of Federal Regulations CH 4 Methane CI IT Chemical Industry Institute of Technology Cl 2 Chlorine ClO 2 Chlorine Dioxide CO Carbon Monoxide CO 2 Carbon Dioxide CO 2 eq C O 2 Equivalents Court United States Court of Appeals for the District of Columbia Circuit Cr+3 Trivalent Chromium Cr+6 Hexavalent Chromium CROMERR Cross Media Electronic Reporting Rulev

CRWI Coalition for Responsible Waste Incineration CWA Clean Water Act DC District of Columbia D.C. Cir. United States Court of Appeals for the District of Columbia Circuit dL Deciliter(s) DPX DNA

- P rotein C ross - Link EBP Equivalency by Permit ECF Elemental Chlorine Free ECHO EPA’s Enforcement and Compliance History Online EMS Environmental Management Sy stem EO Executive Order EPA Environmental Protection Agency ERPG DOE’s Emergency Removal Program Guidelines ERT Electronic Reporti ng Tool ESA Endangered Species Act EU Emission Unit, European Union FAX Facsimile F bio Site

- Specific Fraction of VOC Biodegraded FIP Federal Implementation Plan FQPA Food Quality Protection Act FR Federal Register GHG Greenhouse Gas GP General Pro visions HAD EPA’s Health Assessment Document HAP Hazardous Air Pollutant HCE Hexachloroethane HD High

- Density HEM/HEM3 EPA’s Human Exposure Model HI Hazard Index HL Hodgkin Lymphoma HON Hazardous Organic NESHAP HQ Hazard Quotient hr Hour(s) HVL C High Volume Low Concentration ICAC Institute of Clean Air Companies ICR In formation Collection Request IPPC European Commission’s Integrated Pollution Prevention and Control IPT Initial Performance Test IQ A In formation Quality Act IR IS EPA’s Integrat ed Risk Information Sy stem LAER Lowest Achievable Emission Rate lb Pound(s) LD Low

- Density LEL Lower Explosive L imit LEU Leukemia LK Lime Kilnvi

LOAEL Lowest Observed Adverse Effect Level LVHC Low Volume High Concentration m 3 Cubic Meter(s) MACT Max imum Achievable Control Technology MACT Code Code within the NEIused to identify processes included in a source category MEK Methyl Ethyl Ketone mg Milligram(s) MIBK Methyl IsobutylKetone MIR Maximum Individual Risk MLVSS M i xed L iquor Volatile Suspen ded So lids MOE Ontario Ministry of the Environment MW Megawatt(s) N 2 O Nitrous Oxide NAAQS National Ambient Air Quality Standards NACAA National Association of Clean Air Agencies NAS National Academ y of Science s NATA National

- Scale Air Toxics Assessment NCASI National Council for Air and Stream Improvement NCDENR North Carolina Department of Environment and Natural Resources NCG Non

- Condensable Gas NCSAB North Carolina Science Advisory Board for Toxic Air Pollutants NEI National Emissions Inv entory NI OSH National Institute for Occupational Safety and Health NESHAP National Emissions Standards for Hazardous Air Pollutants NOAEL No Observed Adverse Effect Level NO X Nitrogen Oxides NPC Nasophary ngeal Cancer NPDES National Pollutant Disc harge El imination Sy stem NRDC Natural Resources Defense Council NSPS New Source Performance Standards NSSC Neutral Sulfite Semichemical NYC New York City NYDEC New York Department of Environmental Conservation O2Delig Ox ygen Delignification OAQPS EPA’s Office of Air Quality Planning and Standards OCC Old Corrugated Cardboard ODP Oven

- Dried Pulp ODTP Oven

- Dried Ton(s) of Pulp ODW EPA’s Office of Drinking Water OECA EPA’s Office of Enforcement and Compliance Assurance OEHHA California EPA’s Office of Environmental Health Hazard Assessment OGC EPA’s Office of General Counsel OHEA EPA’s Office of Health and Environmental Assessment OMB Office of Management and Budget ORP Oxidation/Reduction Potential OSWER EPA’s Office of Solid Waste and Emergency Responsevii

PAH Polycyclic Aromatic Hydrocarbon PB Power Boiler PB

- HAP Persistent and Bioaccumulative HAP PCA Packaging Corporation of America PCB Polychlorinated Biphenyl PM Particulate Matter POM Polycyclic Organic Matter ppbdv Part(s) per Billion by Volume, Dry

Basis ppm Part(s) per Million ppmv Part(s) per Million by Volume ppmw Part(s) p er Million by Weight ppt Part(s) p er Trillion PRA Paperwork Reduction Act PSD Prevention of Significant Deterioration PT Port Townsend PTPC Port Townsend Paper Corporation PV Pressure/Vacuum QA Quality

Assurance QC Quality

Control R2C Residual Risk Coalition RACT Reasonabl y Available Control Technology RATA Relative Accuracy Test Audit RBL C RACT/BACT/LAER Clearinghouse RCP R egenerative C ellular P roliferation REL CalEPA’s Reference Exposure Level, NIOSH’s Recommended Exposure Level RF Recovery

Furnace RfC Reference Concentration RfD Reference Dose rpm Revolutions per Minute RSD Relative Standard Deviation RTR Residual Risk and Technology Review S. Ct. United States Supreme Court SAB EPA’s Science Advisory Board SCC Source Classification Code SD Standard Deviation SDT Smelt Dissolving Tank SFR Steam

- to
- Feed Ratio SIP State Implementation Plan SO 2 Sulfur Dioxide SOCMI Sy

nthetic Organ ic Chemical Manufacturing Industry SOG Stripper Off

- Gas SSM Startup, Shutdown, and Malfunction TCDD Tetrachlorodibenzo(p)dioxin TCF Totally

Chlorine Free TOSHI Target Organ

- Specific Hazard Index tpy Ton(s) Per Yearviii

TRIM.FaTE EPA’s Total Risk Integrat ed Methodology , Environmental Fate, Transport, and

Ecological Exposure Module TRS Total Reduced Sulfur TTN EPA’s Technology Transfer Network UEL Upper Explosive L imit URE Unit Risk Estimate U.S. United States U.S.C. United States Code v. Versus VOC Volatile Organic Compound WWT Wastewater Treatment WWTP Wastewater Treatment Plant WWTS Wastewater Treatment Sy stem WWW Worldwide Web μg Microgram(s)1 

## 1. Intr **oduction** Section 112(f)(2) of the Clean Air Act ( CAA) directs the U.S. Environmental Protection Agency (EPA) to conduct risk assessments on each source category subject to maximum achievable control technology (MACT) standards and determine if additional standards are needed to reduce residual risks with in 8 years after promulgation. Section 112(d)(6) of the CAA requires EPA to review and revise the MACT standards, as necessary , taking into account developments in practices, processes, and control technologies at least every 8 years. The national emission standards for hazardous air pollutants (NESHAP) for the pulp and paper industry (40 CFR part 63, subpart S) were promulgated in 1998 and are due for review under sections 112(f)(2) and 112(d)(6). Subpart S is one of several NESHAP included in a January 20 09 schedule suit filed by Sierra Club that asks the D.C. Circuit Court to compel EPA to complete the residual risk and technology

review (RTR) assessments required by the CAA. The EPA entered into a consent agreement which specif

ies a proposal date of Dece mber 15, 2011 and a promulgation date of July 31, 2012 for subpart S RTR. Inaddition, on December 19, 2008, the D.C. Circuit Court vacated the startup, shutdown, and malfunction (SSM) exemption provisions in the General Provisions (GP) for non

- opacity [§63.6(f)(1)] and opacity [§63.6(h)(1)] standards. To address the RTR assessments and SSM exemptions , proposed amendments to subpart S were developed, signed by the EPA Administrator on December 15, 2011, and published in the Federal Regist er on December 27, 2011. A 60

- day period ending February 27, 2012 was provided for the public to submit comments on the proposal to EPA. A summary of the changes made since proposal is presented in the following section.2 

## 2. Summary of Changes **s ince Propos**  **al** Several changes have been made since proposal of the subpart S amendments. The major changes include (1) removing the kraft condensate amendments, (2) clarifying that certain subpart S equipment sy stems are exempted from the repeat testing provisions, ( 3) clarifying the compliance dates for performance testin g and electronic reporting, and (4) clarifying that asserting an affirmative defense is available when a source violat es a standard due to a malfunction, as defined at 40 CFR 63.2

. W e have elected no t to remodel risk for p romulgation , but instead will rely

on the conclusions from the risk modeling conducted for the proposed rule

. We are also deferring final action on the excess emissions allowances until a later date in order to analyze more recent in formation obtained from the industry

. The remainder of this document summarizes the public comments on the proposal a nd provides EPA’s r esponse s, which were used as the basis for most of the changes made since proposal

.3 

## 3. Summary of Public Comments The following sections of this document summarize the public comments received on the proposal and present EPA’s response s to those comments. A total of 2 7 separate sets of written comments were received on the proposal (in addition to 81 site

- specific National Emission Inventory (NE I) revisions). See www.regulations.gov , docket ID no. EPA

- HQ

- OAR

- 2007

- 0 544, for the complete comments. Table 1 below lists the names of the commenters providing written comments , their affili ations, and the document numbers assigned to their comments. For simplicity , onl y the last four digits (and decimal, if applicable) of the document numbers specific to each commenter are presented in this document ( e.g. , 0083.1 , instead of EPA

- HQ

- OAR

- 2007

- 0544

- 0083.1). Commenters providing NEI updates are listed in Appendix A and discussed in section 4.1.2 of this document. The comment summaries are grouped b y topic in Sections 4 through 1 2 as follows:

 Section 4

–Risk Assessment
 Section 5

–Technology Review
 Section 6

–

Unregulated Sources
 Section 7

– Startup, Shutdown, and Malfunction
 Section 8

–Excess Emissions Allowances
 Section 9

–Testing and Monitoring
 Section 10

–Compliance Dates
 Section 11

–Regulatory I mpacts  Section 12

–Miscellaneous Comments In some cases, on e or more commenters endorsed the comments by another commenter. In those cases, the endorsement is noted in the “Miscellaneous Comments” section. The comment summaries are numbered sequentially (1, 2, 3, etc.) throughout the document, regardless of sectio n.4

**Table 1. List of Commenters on 40 CFR Part 63 Subpart S, Proposed December 27, 2011**  **(76 FR 81328) Docket No.**  **EPA -**  **HQ**   ** OAR****- 200**  **7 -**  **05 4**  **4 Commenter Name**  **Affiliation** 0153 Anony

mous Not provided 0154 John Ashley Weyerhaeuser New Bern Mill 0160 Shelia Holman North Carolina Dept. of Environment and Natural Resources (NCDENR) 0161, 0161.1 J. Jared Snyder New York Department of Environmental Conservation (NYDEC) 0162 Paul Noe American Forest & Paper Association (AF&PA) 0163, 0163.1, 0163.2 Stephen E. Woock Weyerhaeuser 0164 Russell Frye SSM Coalition 0165 Roy

McAuley Alabama Pulp & Paper Council (APPCO) 0167 Dirk J. Krouskop MeadWestvaco Corporation 0168 Melvin E. Keener Coalition for Responsible Waste Incineration (CRWI) 0170 Dave Kiser International Paper 0171 G. Vinson Hellwig and

Robert H. Colby National Association of Clean Air Agencies (NACAA) 0172 Traylor Champion Georgia

- Pacific LLC 0174, 0174.2 Paul Dickens and

Michael Koerschner Blue Ridge Paper Products Inc. dba Evergreen Packaging 0187 Kelly

D. Bryant Evergreen Packaging: Pine Bluff Facility 0190 Jeffery

Shumaker International Paper (NEI revisions) 0193 Anitra J. Collins KapStone Roanoke Rapids Mill 0195 Richard Holland Packaging Corporation of America (PCA) 0196 Matthew Todd Residual Risk Coalition (R2C) 0198 Keith Wahoske Georgia

- Pacific

- Port Hudson Operations 0207 Craig Liska Verso Paper Corporation 0208 Ann Mason American Chemistry Council (ACC) 212 Nina E. Butler Rock

- Tenn Compan y 0214 Gretchen Brewer PT AirWatchers 0218 (with 6 file sets as attachments: 0219.1

- 0224.18) Emma Cheus and James

Pew, et al. Earthjustice, Sierra Club, Northwest Env ironmental Defense Center, Concerned Citizens for Clean Air, Neighbors for Clean Air, and PT AirWatchers

0225 Gretchen Brewer PT AirWatchers 0228 Melanie Lo yz im State of Maine5 

## 4. **Risk Assessment**  **4.1 Risk** 

**Assessment Inputs 4.1.1**  **Processing of ICR Data into Modeling File 1.**  **Comment:** Commenter 0161.1 disagree d with the EPA’s presentation and explanation of their methods for arriving at the summary of the hazardous air pollutant ( HAP ) emission rates used in the emissions inventory . This commenter did not think the EPA provided enough information to verify

the ac curacy

of their work. In this commenter’s review of the data, they constructed T able 2 below to show the inaccuracies they believe are present in information released b y the EPA. **Table 2. Comparison of Emission Rates in EPA’s Documents with Each Other and with** 

**Those Found in 2005 and 2009 Toxics Release Inventories**

**(Submitted by Commenter 0161.1)**

**State Facility Nam**  **e a**  **Acetaldehyde Emissions ( tpy** **) RTR** **b RTI**  **c 2009**  **TRI d**  **2005**

**TRI d**  **Initial Final**  MI Packaging Corporation of America

– Filer City Mill 3.84 59.10 0.89 15.80 17.24 AL Fort James

- Pennington 36.92 25.62 6.42 33.00 26.50 SC INTERNATIONA L PAPER:GEORGETOWN MILL 44.37 0.52 7.18 42.56 56.23 AL International Paper Company 96.22 18.90 1.92 77.00 46.45 ID Clearwater Paper Corp

– PPD & CPD, Idaho 11.39 51.44 1.52 48.15 47.25 a. The “Facility Name” in the table above is that used in the RTR both in the “RTR Review file” and the RTI “Follow

- Ups memo.” b. These emissions data are from the “RTR Review file” which originated with the National Emissions Inventory (NEI) data reported to the EPA by the states. c. These emissions data are from the RTI “Follow

- Ups memo” which came from the facilities’ responses to the Information Collection Requests (ICRs) sent to them by EPA or RTI. d. The Toxics Release Inventory ( TRI ) emission rates are submitted by the facilities directly to EPA. Specificall y, the commenter question ed the following documents as the provision for the data: 1. “RTR review file for Pulp and Paper Production Proposal” (“RTR Review file”) file

found within the Air Toxics Web Site of EPA’s Te chnology Transfer Network (TTN). 2. RTINovember 2011 memorandum titled “Summary of Follow

- Ups Conducted Regarding Residual Risk Modeling Results” (“Follow

- Ups memo”) found within the docket for the Pulp and Paper Industry NESHAP

. The commenter believes that EPA should explain why the acetaldehyde emissions used in this assessment were significantl y reduced, when the reported NEI and TRI acetaldehyde emissions for these facilities were all within the range for 35 other facilities in this source category as reported in the 2009 Toxics Release Inventory ( TRI ) and the “RTR Review file .” The RTI “Follow

- Ups memo” indicates that the reduction of annual acetaldehyde emissions for the RTR assessment was triggered b y finding s of elevated cancer and non

- cancer risk for these6

facilities. The commenter questioned whether it was the closer nearb y populated receptors that drove the higher risks predicted from these five facilities, not any suspiciously

high emission rates, as stat ed in the RTI “Follow

- Ups memo .” **Response :**  The follow

- ups memo cited by the commenter only

presents the inventory changes that EPA received from mills in response to EPA’s inquiries ( i.e. , inventory changes for those particular emission units whose emis sions data were undergoing review/revision). 1 The particular emission units with emissions undergoing revision are noted in the emission unit columns of Tables 1 and 2 of the follow

- ups memo. The follow

- ups memo does not include mill

wide totals, which are what the commenter has included in the RTR column and TRI columns in the table he provided with his comment. So, the commenter is actuall y comparing acetaldeh yde emissions for the entire mill (in the RTR and TRI columns) to acetaldehyd e emissions from one or more emission units (in the RTIcolumns) whose data were undergoing review/revision , which explains the large discrepancy in emissions

. T o clarify

further, the emissions estimates in the RTR column are based on inventory updates provided by

the mills i n their responses to the 2011 information collection request ( IC R) (using NEI data reported b y the states as the baseline from which to provide their updates), corrected using the emissions data revisions in the RTI Final column. Regarding the commenter’s concerns about the reasons for the emissions reductions, there were a number of valid reasons for the reductions, as described in the paragraphs below. The erroneous acetaldehyde emissions for the PCA mill were discovered when EPA reviewed the preliminary chronic cancer risk results for the pulp and paper industry

. The EPA had a concern regarding the acetaldehyde emissions from the wastewater treatment plant at the PCA m ill, specifically

the primary

c larifier (EU ID WWTP1) and a erated l agoons (EU IDs WWTP2 and WWTP3). The 59.1 tons per ye ar ( tpy) estimate for acetaldehyde was the highest for the pulp and paper industry for this ty

pe of emission unit (wastewater) and nearl y 50 times higher than the next highest semichemical mill for this ty pe of emission unit

. The EPA asked the mill to take another look at the acetaldehyde emissions for these emission units and verify the accuracy of the data. In their response, the mill said that they had an error in their spreadsheet calculation on the throughput multiplier for wastewater emissions

—they multip lied by the wrong cell number. The erroneous acetaldehyde emissions for the Georgia

- Pacific Naheola mill (in Pennington, AL) were discovered b y the mill in the process of responding to EPA inquiries regarding unusually

h igh emissions from the Kamyr dig ester, w ashers, s creens, s melt dissolving t ank, and recovery

f urnace at the mill. Intheir review of the data, the mill noted that the Kam yr digester exhaust is collected and conveyed to the permitted destruction sources at the m ill , so there are no direct emissions of any pollutant for the Kam yr digester ( i.e. , emissions from the Kamy r dig ester are zero)

. The mill also used the opportunity to update the emissions from the other sources and provided documentation to support their re

- calculated emissions. The erroneous acetaldehyde emissions for the International Paper

- Georgetown mill were discovered b y the mill in the process of reviewing all of their inventory data after receiving an

1 See memorandum from T. Holloway and K. Hanks, RTI, to J. Bradfield and B. Schrock, EPA, titled Summary of Follow

- Ups Conducted Regarding Residual Risk Modeling Results , November 28, 2011, in the docket for the subpart S rulemaking.7

inquiry from EPA regarding the tetrachloroethylene emissions from the clarifier (EU ID WWAER1) at the mill

. In the process of reviewing the tetrachloroeth yl ene data, the mill discovered incorrect emissions data for three other pollutants (acetaldehyde, methanol, and formaldeh yde) from both the cl arifier (EU ID WWAER1) and aerated stabilization basin (ASB ) (EU ID WWAER2). According to the mill’s consultant, the source of the incorrect data appears to have occurred during export of the data from the facility’s data management system, resulting in th e compounds and emissions rates being extracted and incorporated into the spreadsheet incorrectly

. The erroneous acetaldehyde emissions for the International Paper

- Prattville mill were discovered b y the mill i n reviewing the ir Part II inventory data with the assistance of the National Council for Air and Stream Improvement (NCASI )

. According to the mill, the error in the acetaldeh yde value for the ASB (EU ID WWTASB) appear ed to be a transcription error. The erroneous acetaldehyde emissions for the Clearwate r Paper

- Lewiston mill were discovered b y the mill in the process of reviewing all of their inventory data after receiving an inquiry from EPA regarding the acrolein emissions from the w astewater treatment s ys tem (EU ID PR13) at the mill. According to the m ill, a calculation error was made while updating the emissions for a cetaldeh yde and other HAPs for paper m achines and p ulp dryers; a correction was also made for emissions from wastewater treatment for all HAPs. **2. Comment:**  Commenter 0174 submitted ( in att achment 0174.2) emission factor guidance developed b y NCASI and distributed to member companies in June 2011, entitled “Additional In formation on A cetaldehyde, Formaldehyde, and Acrolein Emissions from Paper Machines and Pulp Dryers Located at Bleached Kra ft Mills.” **Response :**  We acknowledge receipt of the emission factor guidance distributed by NCASI

. **3. Comment:**  Commenter 0195 stated that limitations and errors in the input data and in the modeling methods used may still affect the ability

of the RTR assessment to accuratel y characterize maximum off

- site risk. The commenter expected that a more accurate and detail ed characterization of emissions sources for their facility would result in lower, more realistic risk estimates. The commenter stated that independent verification of EPA’s modeling was not available to the facility

. **Response:** The comment er’s concerns about the limitations and errors in the modeling methods and the inability to independent ly verify EPA’s modeling are addressed in our response in section 4.2 below , relating to Human Exposure Model ( HEM ) methodology

. Regarding the commenter’s concerns abo ut the limitations and errors in the input data and the need for a more accurate and detailed characterization of emissions sources, we would expect the commenter’s compan y to provide NEI data revisions to help us refine the inventories for their mills (if needed)

. The EPA issued a request for comment in the December 27, 2011 proposal asking for such corrections to the mill

- specific HAP emissions data used in the risk modeling

. We have received and reviewed the post

- proposal NEI data revisions that the comm enter’s company s ubmitted for its Valdosta mill in Clyattville, GA and its Counce mill in8

Counce, TN

. The Valdosta mill provided no revisions to its subpart S sources (MACT code 1626

- 1). All of the revisions for this mill relate to its subpart MM chemical recovery sources (MACT code 1626

- 2), specificall y deleting all smelt dissolving tanks ( SDTs ) and recovery furnaces currentl y in the mill’s inventory since they

have been replaced with new units. No emissions data for the replacement units were provided, since initial test data for these units are not yet available. The Counce mill provided revisions to the data for its paper machines, black liquor storage tanks, and wastewater treatment sy stem, which we have reviewed. No post

proposal NEI data revisions were received for the commenter’s mills in Filer City , MI and Tomahawk, WI. The data revisions for the Valdosta and Counce mills are accounted for in a memo for the docket that summariz es th e post
- proposal NEI revisions for the pulp and paper industry in the context of determining whether or not to remodel risk. 2 **4.1.2 Changes to Mill**  **- specific NEI Data**  **4. Comment:**  A number of mills submitted specific revisions to their NEIrisk input files

. Appendix A at the end of this document lists the mills providing NEI revisions. **Response :**  The NEI revisions were reviewed to determine whether they would influence the outcome of the proposed risk assessment results. Based on our review, we have conclude d that the results of remodeling risk would most likely a djust the risk results for the s ubpart S source category

downward ( i.e. , reduce risk). Because of this, EPA has elected not to remodel risk for purposes of promulgating of the s ubpart S residual risk review , but instead to rel y on the conclusions from the risk modeling conducted for the proposed rule. A memo for the docket has been prepared summarizing the NEI revisions, noting their likel y effect on risk, and documenting the recommendation not to rem odel risk. 3 **5. Comment:**  Commenter 0162 attached a February 24, 2012 memorandum from NCASI relating to hexachloroethane (HCE) emissions from brownstock washers and bleach plant sources (see Attachment 3 to comment 0162)

. 4 Through this attachment, c ommenter 0162 stated that there is significant uncertainty about the isolated detect data for HCE from brownstock washers and bleach plant sources. The commenter noted that many facilities used emission factors from NCASI’s Air Toxics Database to estimate HCE emissions from these sources and said that these NCASI emission factors were based upon limited test data from 1993, most of which were non

- detects. According to the commenter, HCE was detected in one diffusion washer vent at a bleached pulp mill and n ot detected at three vacuum

- drum washer s ys tems (eleven total vents) at two bleached pulp mills. In addition, the commenter noted that HCE emissions were detected in one elemental chlorine free ( ECF ) bleach plant scrubber vent but not detected in six non

- E CF bleach plant s ys tems. Commenter 0162 stated that HCE is not a known pulping b yproduct, and the conditions for its formation are not expected to exist either in brownstock washer s ys tems or in bleach plant s ys tems. The commenter noted that NCASIis plann ing to perform additional emissions testing of several vents from a vacuum drum washer

2 See memorandum from T. Holloway, RTI, to J. Bradfield, B. Schrock, K . Spence, and N. Swanson, EPA, titled Recommendations Concerning Residual Risk Remodeling for the Pulp and Paper Industry, November 28, 2011, in the docket for the subpart S rulemaking. 3 Id. 4 See memorandum from Z. Emerson, NCASI, to file, titled Hexachloroethane Emissions from Brownstock Wa shers and Bleach Plant Sources , February 24, 2012

.9

sy stem, a diffusion washer s ys tem, and a bleach plant scrubber to confirm the expected absence of HCE. **Response :**  Several mills submitting NEIrevisions also submitted a copy of th e NCASI memo, as noted in section 12.1 below. To resolve questions in the memo about the presence of HCE emissions from brownstock washers and bleach plant sources, NCASI conduct ed additional HCE emissions testing ( as noted in the comment above ) at these mill sources . The EPA has received a summary

of the results of the NCASI testing , which provided the following information.

 At the vacuum drum washer, HCE was detected in all three sample runs at a detection limit significantly

lower than that achievable with EPA Method 18. The average emission factor developed for the test was 1.32E

- 05 pounds per air

- dried ton of unbleached pulp ( lb/ADTUBP ) , which NCASIestimate d to be three orders of magnitude lower than the previous, pre

- MACT emission factor based on non

- detect values at the analytical detection limit.

 At the diffusion washer, HCE was not detected in any of the three sample runs. In - stack detection limits for this testing ranged from 9.7 to 12.4 parts per billion by volume, dry basis (ppbdv ) , resulting in an average emission factor of less than 3.48E

- 06 lb/ADTUBP.

 At the ECF bleach plant scrubber vent, HCE was not detected in any of the three sample runs. In

- stack detection limit s for this testing ranged from 9.6 to 11.3 ppbdv, resulting in an average emission factor of less than 1.16E

- 04 lb/ADTBP. Based on our review of these test results, we conclude that HCE is not emitted from diffusion washers and bleach plant scrubbers. Furthermore, since HCE has been found to be emitted from vacuum drum washers at much lower levels than previousl y reported (which were themselves based on non

- detect values at the analytical detection limit), we conclude that the current NE I emission estimates for HCE from vacuum drum washers are not representative of actual emissions. Therefore, we have decided to accept the request for removal of HCE from brownstock washers and bleach plants in the mill inventories. To that end, HCE emissions data have been removed from the brownstock washers and bleach plants in the inventories of the 26 mills that submitted NEIrevisions requesting the removal of the pollutant

. 

### 4.2 **Risk**

**Assessment Methods 6.**  **Comment** : Census B lock vs. Fenceline

. Commenter 0218 argue d that the EPA ’s modeling understates cancer and other chronic health risk by assuming that chronic exposure to HAPs from each source occurs at the census block centroid and not at the facility fence or property line. The commenter expresse d concern that , b y declining to assess cancer and chronic non - cancer risk at the fence line, EPA ’s analy sis fails to consider the actual level of risk for the
“ individual most exposed to emissions, ” as required by section 112(f). Estimating the annual average concentration s at the area

- weighted centers of census blocks artificially underestimates the risk estimated for people at the fence line, since the center of a census block will almost alway s be further away

from the facility

than its fence line. Census blocks vary gre atly in size, especiall y in less populated areas. As EPA admits, area

- weighted centers of census blocks are10

likely to underestimate expos ure in some cases be cause they “under

- predict exposures for people in the census block who live closer to the facility

. ” The commenter support ed the EPA’s decision to make exceptions, placing additional residential receptors where there were observable residences when census blocks were abnormall y l arge, but wonders how the residences were identified, observing that EPA us ed out

–of

- date 2000 census data and satellite images may not provide reliable information. The commenter note d that the EPA adjusted receptor points in the HEM

- AERMOD s ys tem to estimate acute health risks for residents living on the fence line. The comment er concludes that failing to assess risk at the fence would be unlawful, arbitrary , and capricious as such an approach fails to assess risk for the person “most exposed” to the source category ’s emissions. **Response :**  As we have noted in the development of previous residual risk regulations, such as the Hazardous Organic NESHAP ( HON ) , in a national

- scale assessment of lifetime inhalation exposures and health risks from facilities in a source category , it is appropriate to identify exposure locations where i t may be reasonably

expected that an individual will spend a majority of his or her lifetime. Further, in determining chronic risks, it is appropriate to use census block information on where people actually reside, rather than points on a fence line, to l ocate the estimation of exposures and risks to individuals living near such facilities. Census blocks are the finest resolution available as part of the nationwide population data (as developed by the U

. S

. Census Bureau); each is ty pically comprised of approximately 40 people or about 10 households. In EPA risk assessments, the geographic centroid of each census block containing at least one person is used to represent the location where all the people in t hat census block live. The census block centroid with the highest estimated exposure then becomes the location of maximum exposure, and the entire population of that census block is assumed to experience the maximum individual risk. In some cases, because actual residence locations may be closer to or farther from facility

emission points, this may result in an overestimate or underestimate of the actual annual concentrations (although there is no sy stematic bias for average levels). Given the relativel y sm all dimensions of census blocks in densely

- populated areas, there is little uncertainty introduced by using the census block centroids. There is more uncertainty when census blocks are larger, although there is still no sy stematic bias. Thus, the EPA concludes that the most appropriate locations at which to estimate chronic exposures and risks are the census block centroids because: ( 1) census blocks are the finest resolution available in the national census data, ( 2) facility

fence lines do not typically r epresent locations where chronic exposures are likel y ( i.e. , people do not ty picall y live at the fence line of facilities) , and ( 3) as just described above, there is no sy stematic bias with respect to using census block centroids as an exposure surrogate f

or all individuals residing in that block. This has been EPA’s approach for estimating chronic maximum individual exposures and risks throughout the RTR program. In its peer review of the methodologies used to estimate risks as part of the RTR rulemaking e fforts, the EPA’s Science Advisory Board (SAB) endorsed this approach. In addition, the commenter is correct that EPA did not model population risks based upon the 2010 c ensus d ata ; at the time of modeling , the 2010 c ensus d ata w ere not full y available and verified to ensure an accurate location of th e modeled population receptors. To reduce our uncertainities in estimating population risks for census blocks with centroids located on the facility boundaries, EPA relocated the centroid to an off

- site residential location

. Inthese cases and the case when the census block was extremely large, EPA moved and added receptors to improve our risk characterization. These additional receptors were identified using satellite11

imagery provided b y Google Earth. The EPA b elieves there are opportunities for both under

- and over - estimating risk, based upon our modeling assumptions. Notably , uncertainties are described in section 4.1 of the risk assessment document. In part, this section states: If an ything, the population exposure estimates are biased high b y not accounting for short

- or long

- term population mobility, and b y neglecting processes like deposition, plume depletion, and atmospheric degradation. Additionally , estimates of the maximum individual risk (MIR) contain uncertainty, because they are derived at census block centroid locations rather than actual residences. This uncertainty is known to create potential underestimates and overestimates of the actual MIR values for individual facilities, but, overall, it is n ot thought to have a significant impact on the estimated MIR for a source category

. Finally , we did not factor in the possibility of a source closure occurring during the 70

- ye ar chronic exposure period, leading to a potential upward bias in both the MIR and population risk estimates; nor did we factor in the possibility of population growth during the 70

- ye ar chronic exposure period, leading to a potential downward bias in both the MIR and population risk e stimates. **7 .**  **Comment:** Commenter 0 171 noted that , in assessing the cancer risks related to source categories in the past, EPA used long

- term concentrations affecting the most highly exposed cens us block for each facility . The commenter believes this anal ys is diluted the effect of sources’ emissions by

est imating the impact at the centroid of the census block instead of at the property line or wherever the maximum exposed individual is. Since census blocks can be large geographically , depending on the population density , the maximum point of impact can be f ar from the centroid, including at or near the property line where people may live or work. In this assessment, however, when identifying the maximum individual risk receptor, EPA reviewed each individual facility

and checked that the offsite concentration represent ed not just the closest census block centroid, but also the closest populated receptor. Commenter 0161 supported EPA conducting a review of each individual facility and visually checking that offsite concentration represents the closest populate d receptor for identifying maximum individual risk (MIR) receptors. **Response :**  We agree with the comments and have enhanced our receptor modeling to account for these problematic census blocks. For this source category we added additional receptors in an effort to improve our risk characterization, **8. Comment:**  Background E xposure . Commenter 0218 asserted that the EPA failed to satisfy section 112 (f)(2) by not following scientific recommendations and the best available science regarding the need to assess the full, cumulative impact of HAP exposure for affected local communities , and by failing to include past or background exposure as part of its health risk assessment. The commenter argued that the EPA fail ed to account for the impact of adding new air emissions to recent and past air emissions that the most

- exposed people have already experienced from this source category for inhalation and multipathway risk assessments. The commenter asked the EPA to consider that pulp and paper facilities have emitted persistent, bioaccumulative HAPs for years in affected communities , and to account for the health risk that has already accrued due to higher historic emissions, emissions from multiple sources, and a build

- up of contamination in the environment through deposition that then creates other routes of12

exposure. The commenter reminded the EPA that the SAB recommended that the EPA include an anal ys is of both background and incremental risk as part of a full cumulative impacts anal ys is. **Response :**  The EPA conducted an assessment of the cumulative cancer risks from emitted carcinogens and the cumulative noncancer hazard indices from all emitted non

carcinogens affecting the same target organ s ys tem for both the source c ategory emissions and the facility

- wide emissions. This assessment exclud ed background contributions from HAPs as well as persistent and bioaccumulative HAPs ( PB

- HAPs ) . While the incorporation of additional background concentrations from the environment in our risk assessments from the past or future (including those from mobile sources and other industrial and area sources) could be technically challenging, they

are neither mandated nor barred from our anal ys is. In developing the decision framework in the Benzene NESHAP 5 currently used for making residual risk decisions, EPA rejected approaches that would have mandated consideration of background levels of pollution in assessing the acceptabi lity of risk, concluding that “ comparison of acceptable risk shoul d not be associated with levels in polluted urban air” (54 FR 38044, 38061, September 14, 1989). Background levels of certain HAPs can be relatively high, perhaps even above a level th at might be considered “safe.” Background levels (including natural back ground) are not barred from EPA‘s ample margin of safety (AMOS) anal ys is, but EPA may consider them, as appropriate and as available, along with other factors, such as cost and technical feasibility , in the second step of its section 112(f) anal ys is. In th is analy sis , background levels were not considered because it is technicall y infeasible since technical limitations in the data set for th is source category make it insufficient t o create a reliable anal ys is. **9. Comment:**  Commenter 0162 expressed concern about EPA’s use of a version of its HEM3 model and corresponding receptor and meteorological data sets that are not in the public domain, which the commenter indicated prevented them from independently verifying and interpreting EPA’s risk findings. Specif ically , the commenter said that, in applying HEM3, EPA applied a more robust set of hourly meteorological data than the data available on the HEM3 w ebsite. In addition, the commenter said that EPA revised the population

- based receptor files in HEM3 to exclude receptors that appeared to be on

- site and to add receptors in nearb y residential areas. According to the commenter, while EPA had, upon their request, shared detailed HEM3 output, the unavailability of the updated program and data prevented a more in

- d epth and comprehensive review and examination of the effects of correcting model inputs in terms of modeled risks. Commenter 0 196 stated that EPA should place the HEM model and corresponding data sets in the docket for this rule to allow for public review and comment of these key materials. The commenter noted that EPA computed the inhalation risk estimates for this sector using the Agency ’s Human Exposure Model (HEM3

- AERMOD). According to the commenter, f or this assessment, EPA updated the public domain ve rsion of HEM3 so that the program implements the current version of AERMOD. While these ty pes of modeling enhancements are suitabl y incorporated into the RTR, the commenter stated that EPA’s use of a version of HEM3 and corresponding receptor and meteorolo gi cal data sets that we re not in the public domain

5 National Emission Standards for Hazardous Air Pollutants: Benzene Emissions from Maleic Anhydride Plants, Ethylbenzene/Styrene Plants, Benzene Storage Vessels, Benzene Equipment Leaks, and Coke By

-Produc t Recovery Plants (54 FR 38044, September 14, 1989) (Benzene NESHAP).13

prevent ed them from independentl y verifying and interpreting EPA’s risk findings. The commenter argued that this create d a “public notice” problem that easil y c ould be corrected b y placing the model and co rresponding data sets in the docket and providing an opportunity for public comment on these materials. **Response :**  We are working with our contractor to look at the feasibility to provide the multi

- facility

HEM modeling software on our website. The single

- facility HEM model will be updated to include census data for both 2000 and 2010 as well as the population receptors added for this source category

. A complete inventory of meteorological stations used for this source category will also be available. The newest version of HEM available on the EPA website, along with the receptor adjustment information available in the risk a ssessment report and the input files available in the docket, can be used to produce results similar to the ones we generated in our o utput files (also available for comparison in the docket) for each facility

. **4.2.1 Modeling of MACT Allowable Emissions**  **10. Commen**  **t:** Commenter 0218 supported the EPA ’s decision to consider “ allowable ” emissions as well as “ actual ” emissions, so that EPA can understand the amount of health risk its current standards allow to occur . **Response :**  We have discussed the use of both allowable and actual emissions in previous actions, including the final Coke Oven Batteries residual risk r ule (70 FR 19998

- 19999, April 15, 2005) and in the proposed and final HON residual risk rules (71 FR 34428, June 14, 2006, and 71 FR 76603, December 21, 2006, respectivel y). In those previous actions, we noted that modeling the allowable levels of emission s ( i.e. , the highest emission levels that could be emitted while still complying with the NESHAP requirements) is inherentl y reasonable since they reflect the maximum level sources could emit and still comply with national emission standards. But we also e xplained that it is reasonable to consider actual emissions, where such data are available, in both steps of the risk analy sis, in accordance with the Benzene NESHAP. We also note that our use of allowable emissions levels in the risk assessments in this r ulemaking did not result in revising the previousl y established standards due to risk concerns. **11. Comment**  : Commenter 0171 recommended that EPA consider potential or allowable emissions, rather than actual emissions, as much as possible in evaluating resi dual risk. Since facility emissions could increase over time for a variety of reasons, and with them the associated impacts, the use of potential or allowable emissions is more appropriate. The commenter argued that an anal ys is based on actual emissions from a single point in time could underestimate the residual risk from a source category . Further, the commenter noted that the major source HAP thresholds are based on maximum potential

- to
- emit, as opposed to actual emissions, and air agencies issue permits based on potential emissions. According to the commenter, l imiting the scope of a risk evalu ation to actual emissions would be inconsistent with the applicabil ity section of p art 63 rules. The commenter was pleased to see that EPA used allowable emissions in parts of the rulemaking but w as concerned about the fact that EPA continues to use actual emissions in other parts of its assessment. Commenter 0171 encouraged the A gency to use allowable em issions in the future, including in assessing acute health risks.14

**Response :**  We disagree with the comment suggesting the use of allowable emissions in the assessment of acute health effects. Our worst

- case acute health screen for the pulp and paper source category

already uses conservative assumptions for emission rates, meteorology , and exposure location, including ( 1) using peak 1

- hour emissions that are on average two times the annual average 1

- hour emission rates; ( 2) assuming all emission points experienc e peak emissions concurrentl y; ( 3) using worst
- case meteorology (from 1 ye ar of local meteorology); and ( 4 ) assuming that a person is located downwind at the point of maximum impact during this same 1
- hour period. Thus, we believe performing an acute analysis based on allowable emissions would result in an overestimation of potential acute impacts that it is not useful to decision makers. **12. Comment:**  According to commenter s 0162 and 0196 , EPA cannot lawfully use MACT allowable emissions in the proposed residual risk determinations because it has failed to provide any reasoned explanation for why risk assessments based on actual emissions estimates are inadequate. The commenter s pointed out that CAA section 112(f)(1)(A) requires EPA to report to Congress on “methods of calculating the risk to public health remaining, or likely to remain , from sources subject to regulation under this section after the application of standards under subsection (d) of this section” (emphasis added). In addition, the commenter s noted that CAA section 112(f)(1)(B) requires EPA also to report on “the actual health effects with respect to persons living in the vicinity of” affected sources” (emphasis added). The commenter s asserted that these requirements clearl y signal that Congress expected EPA to focus on actual risk and not hy pothetical risk in implementing the requirements of section 112(f). According to the commenter s , it is not reasonable in the first instance for EPA to construe section 112(f) as authorizing EPA ri sk assessments based on hy pothetical “MACT allowable” emissions. The commenter s further noted that EPA’s risk assessment methodology already reflects numerous conservative assumptions. To illustrate, the commenter s pointed out that health benchmarks ( e.g. , acute reference doses), typicall y incorporate two to three orders of magnitude of conservatism to account for uncertainties, such as the extrapolation of animal toxicity testing data to humans. In a similar example, the commenter s also pointed out that th e dispersion models used to predict off

- site ambient HAP concentrations attributable to emissions from affected sources incorporate numerous conservative assumptions to simplify the analy sis of highly complex factors, such as meteorology , terrain, and atmo spheric chemistry . In addition, the commenter s noted that risk assessments assume exposure to the most exposed individual on a continuous basis for an entire lifetime. Commenter s 01 62 and 0196 concluded that, in light of the conservatism that already is inherent in EPA’s risk assessment methodology , it makes no sense to appl y ye t another layer of conservatism to section 112(f) risk assessments

–this time based on the hy pothetical assumption that affected sources should be expected to emit more than the actual data indicate. The commenter s also argued that EPA had provided no data or analy ses indicating that its current methodology

would result in a negative bias. According to the commenter s , EPA has provided no data demonstrating that affected sources actuall y do emit at levels significantly higher than the actual data show for any significant period of time, or should reasonably be expected to do15

so. 6 To conclude, the commenter s argued that EPA’s proposal to use hy pothetical emissions levels in section 112(f) risk assessments was based on nothing more than the unsupported assertion that sources might emit at these higher levels. According to the commenter s , the failure to provide a reasoned explanation or evidence as to why this approach is justified and the f ailure to provide an y record evidence supporting the use of MACT allowable emissions renders the proposal insupportable under the law. **Response :**  We have discussed the use of both allowable and actual emissions in previous actions, including the final Coke Oven Batteries residual risk rule (70 FR 19998

- 19999, April 15, 2005) and in the proposed and final HON residual risk rules (71 FR 34428, June 14, 2006, and 71 FR 76603, December 21, 2006, respectivel y). In those previous actions, we noted that modeling the allowable levels of emissions ( i.e. , the highest emission levels that could be emitted while still complying with the NESHAP requirements) is inherentl y reasonable since they reflect the maximum level sources could emit and still comply with national emission standards. But we also explained that it is reasonable to consider actual emissions, where such data are available, in both steps of the risk analy sis, in accordance with the Benzene NESHAP. We also note that our use of allowable emissions levels in the risk assessments in this rulemaking did not result in a different outcome than the use of the actual emission levels. **4.2.2 Modeling of Facilitywide Emissions**  **13. Comment:**  Commenter 0218 stated that the EPA failed to recognize the significance of i ts facility

- wide risk assessment , and to satisfy section 112 (f)(2) , the EPA must perform a cumulative impacts anal ysis that combines this source category ’s individual impact with the impact from other sources . The commenter cited statements from the m ineral w ool p roduction and w ool f

iberglass manufacturing NESHAP and EPA’s 2007 resource document on cumulative health risk assessment of multiple chemicals, exposures and effects (attached to the comment letter) indicating the EPA’s acknowledgement of the importance of cumulative impacts

. The commenter supported the EPA ’s recognition of the need to consider facility- wide risk in this rulemaking , but questioned the EPA’s conclusions that the pulp and paper source category did not drive the facility

- wide cancer an d chronic non

- cancer risk. The commenter argued that the EPA should not focus on the 50 percent cut

- off , because numbers below that may merit greater emission reductions from this source category to reduce the facility- wide risk overall. Commenter 0218 recommended that the EPA perform a cumulative impacts analysis b y combining current baseline emissions, exposures, and health impacts in addition to those of the specific source category

EPA is reviewing. As part of this analy sis, the commenter added, the EPA should aggregate or add the emissions for the most

- exposed communities coming from: (1) the source category

(including all individual sources within it); (2) facility

- wide risk from collocated sources outside of this category ; and (3) all other source s of toxic air pollution in the area. The commenter suggested that the EPA aggregate the community ’s exposure and assess the full health threats faced by the affected community, including from the sources under review. To

6 According to the commenter, mills necessarily design and operate their emission control systems to operate at emission rates below the applicable standards, to provide a compliance margin that accommodates variability in process and control equipment.16

perform this step, EPA must also draw on California EPA’s Office of Environmental Health Hazard Assessment OEHHA community assessment approach. To the contrary , commenters 0162 and 0196 argued that, d espite EPA’s assertion that it examines the risks from the entire facility in order to put the source category risks in context (where “facility” includes all HAP

- emitting operations within a contiguou s area and under common control (76 FR 8133 8)), EPA is without authority to consider facility

- wide risks because the CAA requires residual risk d eterminations to be conducted on a c ategory
- by

category basis. C ommenter 0162 noted that section 112(f)(2)(A) unambiguously requires EPA, within 8 years after adopting a MACT standard for a given source category or subcategory , to “promulgate standards for such category or subcategory

if promulgation of such standards is required in order to provide an ample margin of safety to protect public health. ” According to the commenter, section 112(f)(2)(A) further dictates that, “Emissions standards promulgated un der this subsection shall provide an ample margin of safety to protect public health.” The commenter asserted that it is not reasonable to construe these provisions as authorizing EPA to consider emissions from entire facilities in conducting risk assessments and potentially revising the underlying rule, for the simple reason that the Congress clearl y envisioned that full implementation of the MACT program would take longer than 8 ye ars. C ommenter s 0162 and 0196 concluded that it would be impossible for EPA to fulfill its unambiguous obligation for section 112(f) standards to protect public health with an ample margin of safety in cases where facilities contain sources in a category where the 8

- ye ar deadline for conducting the section 112(f) risk review prec edes the adoption of MACT standards for other sources at the facilities. Commenter 0162 further pointed out the provision in section 112(f)(2)(A), which states that : [i]f standards promulgated pursuant to subsection (d) of this section and applicable to a category

or subcategory

of sources emitting a pollutant (or pollutants) classified as a known, probable or possible human carcinogen do not reduce lifetime excess cancer risks to the individual most exposed to emissions from a source in the category or s ubcategory to less than one in one million, the Administrator shall promulgate standards under this subsection for such source category . (emphasis added) According to commenter s 0162 and 0196 , this provision unambiguously requires the section 112(f) risk a ssessment to be focused exclusively on “emissions from a source in the category or subcategory .” The c ommenter s argued that, for this reason alone, EPA does not have authority to consider emissions from any sources other than those in the source category o r subcategory

under review at that time. As a result, the commenter concluded, the risk assessment EPA conducted for the proposed rule overstates the risks that EPA was supposed to be considering in the residual risk review for subpart S. **Response :**  Facil ity

- wide risk estimates were three times higher than the risk from the pulp and p aper subpart S source category

. When facility

- wide risk estimates are significant and significantl y larger than the source category risk estimates, we determine the key emissi on sources associated with that difference and describe them along with our plans to address them via regulation in the preamble. We may also perform additional quality assurance ( QA ) on the17

facility

- wide emissions in such cases. In the case of this rulemaking package, the results were not significant, and did not change any of the risk

- based decisions, so additional follow

- up was not needed or performed. An assessment of the cumulati ve cancer risks from emitted carcinogens and the cumulative noncancer hazard indices from all emitted non

- carcinogens affecting the same target organ s ys tem ( i.e. , a t arget o rgan - s pecific h azard i ndex [ TOSHI ] value) for the source category emissions was co nducted by EPA. This assessment exclud ed background contributions. The incorporation of additional background concentrations from the environment in our risk assessments from the past and future (including those from mobile sources and other industrial and area sources) are neither mandated nor barred from our anal ys is. In developing the decision framework in the Benzene NESHAP currently used for making residual risk decisions, EPA rejected approaches that would have mandated consideration of background lev els of pollution in assessing the acceptability of risk, concluding that comparison of acceptable risk should not be associated with levels in polluted urban air‘‘ (54 FR 38044, 38061, September 14, 1989). Background levels of certain HAPs can be relativel y high, perhaps even above a level that might be considered “safe.” Background levels (including natural background) are not barred from EPA‘s ample AMOS analy sis, but EPA may consider them, as appropriate and as available, along with other factors, such a s cost and technical feasibility , in the second step of its section 112(f) analy sis. **4.2.3 Modeling of Acute Exposure**  **14. Comment:**  Commenter 0161 supported EPA’s guidelines to assess acute exposures in a community

to never exceed short

- term occupational guidelines that are used to protect healthy adult workers. However, c ommenter 0161.1 expresse d concern for EPA’s use of a cute e xposure guideline l evel s (AEGLs ) or emergency removal p rogram guidelines ( ERPGs ) to address acute exposure. The commenter state d that the use of these values is for once

- in

- a - lifetime short

- term exposure to airborne concentrations of acutel y toxic chemicals. The AEGLs and ERPGs do not have safety and uncertainty factors associated with them. The commenter believes that the EPA’s use of the California reference e xposure l evels (REL s) to address the acute exposures in its residual risk assessments is a reliable and realistic approach to assess the potential for acute public health impacts for sensitive subpopulations. Commenter 0171 also stated that the use of AEGLs or ERPGs in residual risk assessments is not appropriate and does not ensure that public health is adequately protected from the acute impacts of HAP exposure. These limits were developed for accidental release emergency

p lanning and are not appropriate for assessing dail y human exposure scenarios. In the December 2002 EPA document, "A Review of the Reference Dose and Reference Concentration Processes," EPA stated that the primary purpose of the AEGL program is to develop guidelines for once

- in

- a - lifetime , short

- term exposures to airborne concentrations of acutely toxic chemicals. They

are not meant to evaluate the acute impacts from routine emissions that occur over the life of a facility . Unlike the reference concentration s (RfCs) for chronic exposures, the AEGLs and ERPGs do not include adequate safety and uncertainty

factors and cannot be relied upon to protect the public from the adverse effects of exposure to toxic air pollutants. The commenter expressed gratification t o see that EPA has increased its reliance on the California REL s to address acute exposures in the residual risk assessments , and the commenter continued18

to urge EPA to use REL s for these assessments. The commenter also appreciated EPA’s recognition that the guidelines for acute exposures in a community should never exceed short

term occupational guidelines used to protect healthy adult workers. **Response :**  When available, EPA uses AEGL and ERPG values in conjunction with REL values to fully

characterize po tential acute health risks. However , it is often the case that HAP s do not have all of these acute reference benchmark values. In these instances, EPA can onl y describe the potential acute health risk in relation to the acute health values that are availab le. Importantly

however, when interpreting the results, we are careful to note the definition of the benchmark being used and the health implications associated with any specific benchmark being exceeded. **15. Comment:**  Commenter 0161.1 stated the average h ourly emissions rate is defined as the total emissions for a year divided by the total number of operating hours in the year. The choice of a factor of 10 for acute screening is the default for the HEM3 model , and it is based on engineering judgment. Howev er, for the pulp and paper source category , EPA has maximum hourly emissions estimates for each process group that indicate that a factor of two is more appropriate for this source category

. The EPA determined that the worst

- case maximum estimated 1

- hour e xposure to formaldeh yd e outside the facility fence line had a hazard quotient (HQ) of five or a predicted ambient concentration of 250 micrograms per cubic meter (ug/m 3 ). This concentration exceeds the short

- term recommended exposure level (REL) for formaldehyde developed b y National Institute for Occupational Safety and Health (NIOSH) of 0.12 ug/m 3 for any 15

- minute period in a work day

. The EPA undertook a refined anal ys is of the worst

- case maximum 1

- hour exposure estimate for formaldehyde , and the predicted impact remained the same, indicating that the maximum concentration likely came from one particular source. The HEM3 model becomes overly conservative when calculatin g the maximum receptor from multiple sources (see Appendix 7 of draft risk assessment report). **Response :**  The formaldehyde NIOSH level is 0.12 milligram per cubic meter (mg/m 3 ) vs . the 12 mg/m 3 , resulting in a HQ NIOSH = 2. A review of the MIR facility f or acute non
- cancer impacts identified that 96 percent of the emissions of formaldeh yd e were emitted from a two sources ( i

. e . , wastewater kraft emissions)

. The MIR off

- site location for this facility was the St. Paul Waterway

in Commencement Bay

just North of Tacoma , WA. The HQ values where people reside for this facility

would result in a HQ NIOSH < 1. **16. Comment:**  Commenter 0218 stated that , by ignoring risk from malfunctions, other violations , and higher emissions during startup periods, EPA’s proposal fails to consider the full cancer and chronic non

- cancer health risk from this source category . The commenter observed that the CAA specifically requires EPA to base its risk anal ys is on the high est potential risk “to the individual most exposed to emissions from a source in the category or subcategory .” The commenter stated that it is necessary for the EPA to anal yz e risk based on what emissions may indeed occur during a malfunction and other typ es of violations, even with the MACT standard in place. The commenter noted that these events increase HAP emissions and thereb y pose increased health risks which EPA must consider. The commenter also argued that although the “allowable” emissions limit represents the maximum level of emissions to which an individual may legally be exposed from a given facili ty19

under the existing MACT, that anal ys is is incomplete because facilities may violate that standard and emit HAPs at a level beyond what is “allowable ” under the rule. The commenter asserted that the EPA knows that there is additional risk from malfunctions and violations and it cannot ignore that risk. The commenter asked that the EPA should account for the heightened risk from exceedances of the MACT in its risk calculation, using data regarding the use of the malfunction exemption and enforcement actions in the past and other information it has regarding the history or likelihood of malfunctions or other violations. The commenter pointed to the EPA’s use of a worst
- case scenario used to calculate acute health risk, and suggest ed that the EPA should create a factor that would account for the potential for malfunctions and violations of the standard and then assess health risk accordingl y for acute, canc er , and non

- cancer risk when emissions spike above the allowable level under the existing standard. The commenter asked that the EPA consider the percent control efficiency for control devices used in the pulp and paper source category . When control device s fail, the commenter noted, emissions spike from the small percentage not controlled by the control device to the entire 100 percent from the controlled process. The commenter stated that , although the EPA’s MIR is based on the assumption that exposure is constant f

or a lifetime, spikes in emissions over a person’s lifetime may underestimate the amount of chronic risk based on pollutants that persist in the environment, including chromium and arsenic . The commenter asserted that the failure to account for greater risk due to malfunctions violates section 112(f)(2) and is arbitrary and capricious. **Response :**  Based on Response f rom Secondary Lead RTC p

. 109

. We disagree with the commenter that emissions that exceed standards and are violations, whether or not caused b y malfunction events, should be considered as part of the risk anal ys is. The purpose of the risk review is to evaluate whether the emission limits should be made more stringent to reduce the risk posed after compliance with the underl yi ng MACT standard. To the extent that a source is violating the underl yi ng MACT standard, no tightening of the emission standard under the residual risk rule will avoid or mitigate against such violations. In other words, a source that is violating the MACT emissions standard promulgated under section 112(d) would not be any more likely

to be able to avoid such violations and comply with a different presumabl y more stringent standard promulgated under section 112 (f). Such events are violations and subject to enforcement b y the EPA, the s tates , or citizens , and an action for injunctive relief is the most effective means to address violations , whether or not they are caused by

malfunctions , if an emissions event poses a significant health or environmental risk. Although we disagree that emissions that result in a violation should be considered as part of the risk review, we note that we believe malfunction events do not contribute significantl y to cancer or chroni c non - cancer risks for the source category in this rulemaking because malfunction events are inherentl y short

- term and infrequent relative to annual operations and emissions. The commenter did not supply an y data to the contrary

. Furthermore, the conservative estimates built into the acute risk assessment are sufficient to gauge worst
- case potential acute health effects. The conservative estimates built in to the assessment include worst

- case meteorology , emissions in excess of the maximum peak emission rat e from all point sources simultaneously , and the summation of the maximum impact of each20

emission source, regardless of receptor location. 7 Thus, even if we were to consider emissions that are in violation of the standard, we do not believe that they would result in any

different level of control. **17. Comment:**  C ommenter 0218 stated that the existing standards allow uncontrolled emissions to occur 1 to 10 percent of the time, for various sources (§§63.443(e), 63.446(g)), but note d that the EPA’s risk assessm ent fails to consider the increased cancer, chronic non

- cancer, and other types of health risk due to these periods of no

- control. The commenter asserted that this violates section 112(f)(2) and is arbitrary and capricious. Further, the commenter asserted, the EPA cannot justify

refusing to assess this health risk based on its th eory that it can ignore exceedances of the standard, because under the existing standard these periods of “excess emissions” are allowed. Commenter 0218 stated that the EPA fail ed t o calculate the maximum acute health risk based on a true “ worst
- case ” scenario , because the EPA, by not anticipat ing higher risk from malfunctions , ha d not used a high enough emissions factor for usual operation. The commenter questioned the EPA’s multipl iers to assess peak 1

- hour emissions, arguing that higher ones would be more appropriate. The commenter observed that the existing standards include excess emissions allo wances, which EPA should remove, and that allow uncontrolled emissions 1 to 10 percent of the time. The commenter stated that the EPA has not demonstrated that the multipliers that it used are high enough for pulp and paper to assess the true acute risk to the most

- exposed individual and community under EPA’s existing standards, recommendi ng that the EPA use a multiplier of at least 10, noting that a factor of 10 is clearl y too low to calculate acute health risk if a source, in a worst
- case scenario, could emit as much as 12 to 50 times, or more, beyond its usual emissions

. **Response :**  W e acknowledge the commenter’s concern that the excess emissions allowances in subpart S currentl y could permit uncontrolled venting of emissions from low volume high concentration ( LVHC ) and high volume low concentration ( HVL C ) collection sy stems and b yp as sing steam stripper s ys tems for up to 1 percent, 4 percent, an d 10 percent of time , respectivel y, for reasons described in the preamble to the April 15, 1998 final rule at 63 FR 18529

- 18530 . These allowances are not considered violations of the standards, but were built into the standards as representative of the MACT level of control. In light of the Sierra Club decision (Sierra Club v. EPA , 551 F. 3d 1019 (D.C. Cir. 2008 ) ) , w e requested comment on these excess emissions allowances in the December 27, 2011 proposal (76 FR 81346) , and our re sponse to these comm ents is provided in s ection 8 of this document. We disagree with the commenter that the multipliers we used for assessing acute risk were too low. The risk assessment and acute multipliers for the pulp and paper subpart S source category were based on a detailed anal ys is of emissions inventory data collected in 2011 through a section 114 ICR. The ICR requested routine annual emissions (tpy) and the routine emissions maximum hourly

rate (pounds per hour [ lb/hr] ) for the year

. The routine emissions reported reflect actual emissions for the calendar ye ar ( i.e. , controlled emissions and emiss ions during an y

7 S ee memorandum from T. Holloway, K. Hanks, C. Gooden, and M. Hakos, RTI, to J. Bradfield and B. Schrock, EPA, titled Inputs to the Pulp and Paper Industry October 2011 Residual Risk Mode ling , Table 6B, November 11, 2011, in the docket for the subpart S rulemaking.21

times when the excess emissions allowances were employed during the ye ar). The annual (tp y) and peak (lb/hr) ICR data were compared to develop the peak

- to
- mean multipliers for the various em issions process groups in the subpart S source category

. The resulting multipliers ranged from 1 to 3.1 and are presented in Table 3 below

. 8 The results of our peak

- to
- mean anal ys is were similar to those from separate anal ys es provided by the pulp and paper industry for two ty

pes of emissions units (papermaking and waste water). Even though we performed a detailed analy sis of multipliers for the different emission process groups in order to understand the effect of any process - specific factors (such as the excess emissions allowances) that could potentially lead to different multipliers, we ultimately modeled with a single multiplier of 2 for each facility when estimating acute risks, consistent with our practice of conservatively estimating acute risks based on the maximum peak emission rate from all point sources simultaneously (with the exception being mechanical pulping , where the indicated multiplier of 3.1 shown in Table 3 below, was used) . For the facilities that had an HQ > 1, the specific acute multiplier for each emission process group was used to accuratel y characterize the ris k. The adjusted HQ values for each emission point was than summed and plotted to identify the polar or census block receptor with the maximum off

- site acute non

- cancer risk. In addition to being considered as part of the acute risk anal ys is, the excess emissions allowances were also t aken into account in our analy se s of chronic cancer and non

- cancer risks based on both actual and “allowable” emissions. Like the acute anal ys is, the chronic risk anal ys es were based on the actual emissions reported in the I CR responses , which included controlled emissions and emissions during any times when the excess emissions allowances were employed during the year . The risk analy sis for MACT allowable emissions was based on the actual emissions reported in the I CR responses (which included emissions during times covered under the excess emissions allowances) scaled up with an “allowable” factor to approximate the difference between actual emissions performance and the compliance margin MACT allows. The allowable factors were developed for the various em ission process groups considering the most commonly

used compliance options under subpart S. **Table 3**  **. Acute Multipliers by Emission Process Group**  **for Risk Modeling for Subpart S (MACT Code 1626**  **- 1)**  **9 Emission process group**  **Acute multiplier**  **Emission process group**  **Acute multiplier**  Bleaching: ClO 2 Generator 1.4 Kraft Stock Washing 1.2 Bleaching: Kraft 1.4 Manuf Misc 1.4 Bleaching: Mechanical 1.4 Mechanical Pulping 3.1 Bleaching: Sec Fiber 1.4 NSSC Misc 1 Bleaching: Sulfite 1.4 NSSC Pulping 1 Causticizing: Green Liquor 1.5 Paper Misc 1.6 Causticizing: Lime Mud 1.5 Paper Stock Prep 1.6 Causticizing: Misc 1.5 Papermaking 1.6 Causticizing: Slaker 1.5 Semichem Misc 1 Causticizing: White Liquor 1.5 Semichem Pulping 1 Condensate Stripper 1.2 Soda Misc 1.2

8 Id

. 9 Id

.22

**Emission process group Acute**  **multiplier Emission process**  **group Acute**  **multiplier** Kraft Misc 1.2 Storage Tanks

- Alcohol 1.6 Kraft Pulp Storage 1.2 Storage Tanks

- Methanol 1.6 Kraft Pulping: BL Tanks HVLC 1.2 Sulfite Pulping 1.6 Kraft Pulping: Decker 1.2 Sulfite Pulping (Ca) 1.6 Kraft Pulping: Digester LVHC 1.2 Sulfite Pulping (NH 3 ) 1.6 Kraft Pulping: Evaporator LVHC 1.2 Tall Oil 1.2 Kraft Pulping: HVLC 1.2 Wastewater (General) 2 Kraft Pulping: Incinerator 1.2 Wastewater (Kraft) 2 Kraft Pulping: Knotter 1.2 Wastewater (Mechanical) 2 Kraft Pulping: LVHC 1.2 Wastewater (NSSC) 2 Kraft Pulping: O 2 Delig HVLC 1.2 Wastewater (Semichem) 2 Kraft Pulping: Turpentine LVHC 1.2 Wastewater (Sulfite) 2 Kraft Pulping: Washing 1.2 To further alleviate concerns about acute risk, we note that events covered under the excess emissions allowances for LVHC and HVLC ty picall y last less than one hour (some onl y a few seconds at a time). For the kraft condensate standards, the 10 percent allowance covers times when less than the required amount of HAP in co ndensates are collected ( e.g. , due to process variability

when HAP concentrations are lower than normal), or when a steam stripper could be by passed. Condensates by

passing the stripper are ty picall y routed to a mill’s wastewater treatment s ys tem, where bio logical treatment occurs, and even wastewater treatment s ys tems that are not designed and monitored for compliance with the condensate standards would provide some ( e.g. , 80 to 90 percent) treatment of the kraft condensates (minimizing acute effects). Addi tionally , the excess emissions allowances could be triggered b y times when monitoring parameters are outside of the pre

- approved operating limits. While monitoring parameters serve as indicators of emissions, a slight deviation from pre

- approved parameter limits accounted for against the backstop time limit of the excess emissions allowances does not necessarily reflect an acute emissions episode harmful to the population surrounding the mill. Finally , we note that the final rule requires additional repeat emission testing for kraft pulping processes and steam strippers and removes the SSM exemption

–changes which should further reduce the potential for acute emissions episodes. **4.2.4 Multipathway Screening**  **18. Comment**  **:** Commenter 0161.1 recommended that EPA define the appropriate departure point for exceeding the mass screening value and requiring a multipathway risk anal ys is. The EPA used its Total Risk Integrated Methodology , Environmental Fate, Transport, and Ecological Exposure Module ( TRIM.FaTE ) to screen PB

- HAPs for significant non

- inhalation exposures. At all 38 fa cilities in the pulp and paper i ndustry source category , the emissions rate for each PB

HAP was below the screening thresholds, with the exception of one facility for which the emission rate of pol yc ycl ic organic matter (POM) exceeded the screening threshold by a factor of two. The screening level is designed to represent a potential for creating a cancer risk in23

excess of 1

- in

- a - million or a non

- cancer hazard index (HI) of 1 . The commenter believes this to be a proper use of screening values. The mass emission rate screening process will be successful if conservative input data are used within the TRIM.FaTE model and risk management decisions are incorporated into the decis ion making process. In this case, a risk management decision was made to allow two times the mass emission rate, equaling approximately a 2

- in

- a - million cancer risk. This approach contrasts favorabl y to EPA’s risk assessment for the p rimary aluminum NESHAP source category, in which the emissions from POM exceeded the mass emission screening rate b y 7,000 times for one facility and the EPA decided not to pursue a refined multipathway

risk assessment. To avoid similar discrepancies, EPA should create a define d hierarch y to require this type of risk assessment under the RTR program. **Response :**  As described above, since proposal, EPA has refined the emission screening threshold s in the multipathway screen based on TRIM.FaTE runs to screen risks from PB

- HAP emiss ions

. This revised Tier 1 screen uses improved toxicity rating/scaling methods for POMs and dioxin congeners as well as improved fate, transport, and uptake behavior through the aquatic food chain

. Based on the above changes , the facility- level emissions o f POMs from the pulp and paper source category are now below the screening threshold by a factor of 9. For more information on the changes made to the PB

- HAP Tier I screening thresholds refer to Appendix 4 of the Residua l Risk Assessment for the Pulp & Paper Source Category in the docket for the subpart S rulemaking. 10 **19. Comment**  **:** Commenter 0218 stated that the EPA fail ed to add add multipathway risk to the inhalation risk to come up with a total cancer risk and a cumulative burden metric that EPA and the public can anal yz e , making EPA ’s overall risk assessment incomplete. The commenter recommended that the EPA use the multipathway assessment appropriately by adding the risk found there to the inhalation risks found, and then proceeding with the required section 112(f)(2) anal ys is to determine whether or not that total level of risk is acceptable, to show the full cumulative burden of health risk for the most

- exposed person, and what standards are needed to reach an acceptable level and also to provide an ample margin of safety

. **Response :**  Itwould be inappropriate for EPA to a dd a screening threshold exceedance as an estimate for multipathway risks with the modeled inhalation risks. The screening threshold is not intended to be used to produce quantitative estimates of actual or potential risk. Rather, it provides a basis for determining if residual human health risks are of potential concern. The screening thresholds are based upon a worst

- case scenario , which likely overestimates exposures for the site ; actual exposures will depend upon geograph y , meteorology , land

- use, and other characteristics, as well as release parameters for those pollutants that are PB

- HAPs. **20. Comment:**  Commenter 0218 disagreed w ith the EPA’s conclusion that there is “no potential for . . . human health multipathway effects” from POM emissions. The commenter stated that the EPA’s POM multipathway analy sis is incomplete because EPA failed to conduct a full multipathway

risk assessm ent, which includes consideration of a child’s multipathway

10 See U.S. EPA’s Residual Risk Assessment for the Pulp & Paper Source Category , Appendix 4, “ Overview of Tiered Approach to Assessing Multipathway Exposures for RTR ,” in the docket for the subpart S rulemaking24

exposure, in urban and rural residential scenarios. The c ommenter recommend ed EPA conduct such a full multipathway

risk assessment. The commenter further stated that the failure of EPA to assess an exposed child scenario as part of the cumulative risk assessment ignores the exposures that may pose the most significant risk from this source category

. The c ommenter highlight ed the risk to children from contaminated soils, noting that past risk assess ments have relied on outdated estimates of incidental soil ingestion exposures and stating that the EPA must update these values. The commente r cited two EPA exposure factors handbooks and a journal article as resources to use for assessing risks. **Respon se**  **:** The EPA disagrees with the commenter’s statement that thi s risk assessment failed to consider children ’s exposure and earl y- life susceptibility

. The EPA agrees that biological differences across life stages may lead to differences in the susceptibility to HAP, as can differences among population groups , due to pre

- existing disease states or other factors. Accordingl y, the methods we use in risk assessments have taken this into account. For the dose

response component of HAP assessments for RTR, the EPA uses exposure reference concentrations and unit risk estimates that are expressly derived with the objective of protecting sensitive populations and life stages, including children. 11 For example, a review of the chronic reference value process concluded that the Ag ency ’s RfC derivation process adequatel y considered potential susceptibility of different subgroups with specific consideration of children, such that the resultant RfC values pertain to the full human population , including “sensitive subgroups, ” which is inclusive of childhood. C ancer risk assessments are performed in accordance with EPA’s Supplemental Guidance. 12 This Guidance recommends the application of age - dependent adjustment factors for assessing cancer risk from carcinogenic pollutants co ncluded to act via a mutagenic mode of action and for which information on earl y- life susceptibility

is lacking. The basis for this methodology is provided in the 2005 Supplemental Guidance. With regard to other carcinogenic pollutants for which earl y- life susceptibility data are lacking, it is the Agency ’s long

- standing science policy position that use of the linear low

dose extrapolation approach (without further adjustment) provides adequate public health conservatism in the absence of chemical

- specific data indicating differential earl y- life susceptibility

or when the mode of action is not mutagenicity

. 13 The E PA developed the scenario in the multipathway screen in order to estimate the upper end of the range of individual, long

- term, non
- inhalation expos ures for situations likely to be encountered in the United States. The approach is described in the “ Overview of Tiered Approach to Assessing Multipathway Exposures for RTR ,” available as Appendix 4 to the risk assessment document for subpart S. 14 This approach has been reviewed and approved b y the

11 See U.S. EPA (2002), A Review of the Reference Dose and Reference Concentration Processes . EPA/630/P

02/002F. Risk Assessment Forum, Washington DC. Available online at : http://www.epa.gov/raf/publications/pdfs/rfd

- final.pdf

. 12 See U.S. EPA (2005), Supplemental Guidance for Assessing Susceptibility from Early

-Life Exposure to Carcinogens . EPA/630/R

- 03/003F. Washington, DC. Available online at: http://www.epa.gov/cancerguidelines/guidelines

- carcinogen

- supplement.htm

. 13 Id

. 14 See U.S. EPA’s Residual Risk Assessment for the Pulp & Paper Source Category , Appendix 4, “ Overview of Tiered Approach to Assessing Multipathway Exposures for RTR ,” in the d ocket for the subpart S rulemaking

.25

SAB to characterize a worst

- case scenario in a rural environment; we believe the parameters used for this simulation are reasonable for purposes of conducting a multipathway assessment for both adults and children , especiall y considering the close proximity of the emission source(s) to farmland and/or fishable lakes, which are major considerations in conducting a multipathway risk assessment. The EPA purposel y designed the multipathway scenario to produce conservative ( i.e. , health protective) results. To this end, EPA applied the following critical exposure/activity assumptions: fresh water fish ingestion rates (99th percentile); food ingestion rates (90th percentile rates) 15 ; adults/children greater than 6 ye ars o f age (90th percentile) 16 ; and soil ingestion children less than 6 years of age (95th percentile)

. 17 These ingestion rates are based upon EPA’s 2011 Exposure Factors Handbook and have been revised to reflect high

- end consumption rates for the general public and high

- end rates for at

- risk populations, such as children ingesting contaminated soil. **21. Comment:**  Commenter 0218 stated that the EPA did not perform a full multipathway risk assessment for lead, and this is unlawful, irrational, and unjustified. The commenter observed that EPA compared the ambient air concentrations caused by the facilities ’ emissions with the 2008 national ambient air quality standard (NAAQS ) for lead (0.15 μg/m 3 ) to assess whether there wo uld be exceedances of the NAAQS, but wh at is “ adequate ” under section 109 is not necessaril y “ acceptable ” under section 112 . The EPA must ensure that it sets standards that provide an “ ample margin of safety to protect public health. ” The commenter concluded that the EPA should have performed a full multipathway risk assessment for lead that look ed at the full exposure from ingestion and dermal pathway s, such as through soil and breast

- milk exposure. **Response :**  The lead NAAQS was a public health policy judgment considering the available health evidence and risk anal ys es , as well as the uncertainties associated with the health evidence and risk analy ses. We disagree with the commenter that the lead NAAQS cannot be used in a quantitative manner. The review of the lead NAAQS clearly resulted in a quantitative standard: 3

- month maximum lead concentration not to exceed a level of 0.15 μg/m 3

. The NAAQS for lead was set to protect, with an adequate margin of safety , the health of children and other at

- risk populations against an array of adverse health effects, most notably neurological effects, particularly neurobehavioral and neurocognitive effects, in children. 73 FR 67007. B ecause of the multipathway , multimedia impacts of lead, the risk assessment supporting the NAAQS for lead considered direct inhalation exposures and indirect air

- related multipathway exposures from industrial sources like primary and secondary

lead smelting operations. It also considered background lead exposures from other sources , like contaminated drinking water and exposure t o lead

- based paints. During the NAAQS review process, these risk estimates were judged to be roughly

consistent with , and generally supportive of , the evidence

- based framework applied in the NAAQS determination (73 FR 67004). Taken together, the EPA believ es that the

15 See U.S EPA, Exposure Factors Handbook: 2011 Edition ; EPA/600R

- 090/052F. Available online at: http://www.epa.gov/ncea/efh/pdfs/efh

- complete.pdf 16 Id. 17 Stanek, E., EJ Calabrese, R Barnes, & P Pekow . (1997) “ Soil ingestion in adults

– results of a second pilot study. ” Toxicol. Environ Safety , 36(249

- 257)

.26

lead NAAQS is a reasonable benchmark to evaluate the potential for multipathway health effects from lead. Also, as noted in the risk assessment document 18 , there is no reference dose ( RfD ) or other comparable chronic health benchmark value for l ead compounds. That is, in 1988, the EPA’s Integrated Risk Information Sy stem ( IR IS ) program reviewed the health effects data regarding lead and its inorganic compounds and determined that it would be inappropriate to develop an RfD for these compounds, sayi ng : A great deal of information on the health effects of lead has been obtained through decades of medical observation and scientific research. This information has been assessed in the development of air and water quality criteria b y the agency's Office of Health and Environmental Assessment (OHEA) in support of regulatory decision

- making by the Office of Air Quality Planning and Standards (OAQPS) and b y the Office of Drinking Water (ODW). By comparison to most other environmental toxicants, the degree o f uncertainty about the health effects of lead is quite low. It appears that some of these effects, particularl y changes in the levels of certain blood enz ym es and in aspects of children's neurobehavioral development, may occur at blood lead levels so low as to be essentially

without a threshold. The agency's RfD Work Group discussed inorganic lead (and lead compounds) at two meetings (07/08/1985 and 07/22/1985) and considered it inappropriate to develop an RfD for inorganic lead. 19 The lead NAAQS applies in all areas of the United States regardless of the age of the individuals living in a particular area. Thus, we find it appropriate to evaluate potential multipathway

risks, in a quantitative manner, using the NAAQS for lead. **22. Comment**  **:** Commenter 0218 exp ressed concern that the EPA restricted its multipathway risk screening assessment for this source category to only those contaminants that were identified in the 2003 Risk Assessment Guidance as being both persistent and bioaccumulative in the environment ( i.e. , PB

- HAPs). T he commenter observed that this list of 14 PB

- HAPs is incomplete, as it ignores other HAPs that present multipathway risks. The commenter stated that the EPA ’s restrictive choice is not supported by the 2003 Guidance and underestimates ri sks from HAPs emitted by

this source category . The commenter specifically name d all metals emitted by

this source category , including chromium, arsenic, nickel, and manganese , as pollutants that require a ful l multipathway risk assessment. The commenter ci ted the California OEHHA recommendation of multipathway assessment for these metals. The commenter conclude d that the EPA may not assume that the ingestion risks are zero for these pollutants, and doing so when science shows otherwise is arbitrary and capricious. The commenter state d that not assess ing multipathway risk from exposure to these HAPs via incidental ingestion, both individually

and cumulatively , results in an underestimat ion of the risks of HAP emissions from this source category

. The commenter also recommended that naphthalene, as a polycyclic aromatic h ydrocarbon ( PAH ) , must be considered in the POM category

.

18 See U.S EPA, Residual Risk Assessment for the Pulp & Pape r Source Category , in the docket for the subpart S rulemaking 19 See the EPA’s IRIS assessment for Lead and compounds (inorganic) (CASRN 7439

- 92

- 1) . Available online at: http://www.epa.gov/iris/subst/0277.htm

.27

**Response :**  In the Air Toxics Assessment L ibrary20 , we developed the current PB

- HAP list , considering all of the available information on persistence and bioaccumulation. This list was peer - reviewed b y the SAB, and it is reasonable to use it in the RTR program. Based on the limited available information on the persistence and bioaccumulation o f the metals mentioned in the comment above , we do not believe that the potential for multipathway risk rises to the level of the PB

- HAP s currently on the list

. **23. Commen**  **t:** Commenter 0218 objected to the EPA’s use of reported emissions rather than allowab le emissions in its multipathway assessment, stating that the EPA has not assessed the full potential for non

- inhalation health risk due to persistent and bioaccumulative emissions . The commenter observed that i ntermittent or short spikes of PB

- HAPs can represent a significant health risk because the contaminants stay in the environment and small amounts can accumulate into larger amounts over time. The commenter stated that f ailing to account for the full multipathway

risk that EPA ’s existing standard allo ws, or for risk due to violations from that standard, violates the section 112(f)(2) requirement to ensure protection for the individuals “ most exposed ” to the source category

. **Response :**  As noted in the risk assessment document, allowable emissions were about 1.5 times greater than actual emissions for this source category . Because there is a linear relationship between emissions and the results of this worst case screen, considering allowable emissions, the current screening level for POMs is approximate ly 6 times greater than the estimated allowable emissions. These allowable emissions do not exceed our POM screening thresholds and are estimated to be below an excess cancer risk of 1 in a million. 21 **4.2.5 Dose**  **- response**  **Benchmarks 24.**  **Comment:** Commenter 0218 stated that the EPA must assess health risk from all pollutants, even where it has no current reference value, and must use an uncertainty factor to make up for the lack of a reference value. The commenter observed that the EPA ’s risk assessment ackno wledges the emission of other HAPs for which it has no reference values , but that the EPA failed to assess risk at all for these pollutants . The commenter also stated that the EPA did not carry out a qualitative assessment of these HAPs, in effect assuming that risk from the HAPs is zero, which is not justified, and which underestimates health risk. The commenter asserted that at minimum, EPA must use an uncertainty factor to make up f

or the lack of reference values, and EPA may not treat risk as zero for a HAP simply because it has no reference value for the health risk from that HAP. Section 112 requires EPA to address all emitted HAPs in its regulation. The commenter concluded that EPA must address this uncertainty b y selecting a health

- protective value b ased on the information it does have, so that it may consider the potential risk and find an appropriate way to assess that risk in this rulemaking. In the absence of an available reference dose, EPA must, at minimum, add an uncertainty factor to account f

or the additional risk that a HAP likely causes, until such time as EPA does have a reference value to use. Using a protective uncertainty factor would allow EPA to satisfy its legal

20 S ee http://www.epa.gov/ttn/fera/risk_atra_main.html

. 21 For more information on the changes made to the PB

- HAP screening thresholds , refer to U.S. EPA’s Residual Risk Assessment for the Pulp & Paper Source Category , Appendix 4, “ Overvie w of Tiered Approach to Assessing Multipathway Exposures for RTR ,” in the docket for the subpart S rulemaking.28

duty under section 112(f)(2) to prevent unaccept able health risk and ensure an “ ample margin of safety to protect public health. ” The commenter pointed to section 112 (f)(2) of the CAA as creating a critical duty and opportunity

for EPA to conduct a comprehensive and protective anal ys is of residual risk to public health and the environment

. H owever, over the 20 ye ars after the CAA was amended, the IR IS review process has been bogged down for many pollutants, and sufficient studies for some HAPs have not been conducted to allow calculation of reference doses, reference concentrati ons, or potency

values. The commenter asserted that the EPA should prevent the delay in this process from undermining its residual risk anal ys is for this and other source categories. The commenter recommended that for formaldehyde, methanol, and all other pollutants currentl y under IRIS reassessment, EPA must use the best available scientific information from the IRI S review during the current rulemaking. The commenter stated that i f EPA determines that it must wait until these reassessments are complete to use the newl y available scientific information, then EPA must take a more protective approach due to the outdated health risk reference information that it is using. For formaldehyde, the commenter support ed the EPA using the 1991 IRI S value , as well as i nformation from the new IRIS review , rather than the industry

created value from the Chemical Industry Institute of Toxicology

(CIIT), which is less protective. The commenter suggested that to account for the delay and lack of reference values for some pol lutants, and the fact that it is still updating the toxicity information for other pollutants, EPA must set a regulatory deadline no later than 8 ye ars from the finalization of these rules, to review the current residual risk anal ys is and again perform a residual risk rulemaking once additional data on reference values become available. **Response :**  Based on Response f rom Secondary Lead RTC p

. 63 This issue was addressed by the SAB Panel in their May 10, 2010 response to the EPA Administrator

. 22 In that response , the SAB Panel recommended that, for HAPs that do not have dose

- response values from the EPA’s hierarch y list, the EPA should consider and use , as appropriate, additional sources for such values that have undergone adequate and rigorous scientific peer review. They further recommended that the inclusion of additional sources of dose

- response values into the EPA’s hierarch y should be adequately documented in a transparent manner in any residual risk assessment case study

. We agree with this approach and have considered other sources of dose

response data when conducting our risk determinations under RTR. However, in some instances , no sources of information in addition to the EPA’s hierarch y are available. The EPA agrees that we should ultimately deve lop toxicity

values for all HAPs using all credible and relevant toxicity information. The need to update assessments with newly available data , as well as the need to complete toxicological assessments for all HAPs lacking dose

response assessments , furth er increases the importance of Agency activities to streamline and fully use the EPA’s already overloaded IR IS program. To that end, the EPA has alway s prioritized for future IRIS assessments those HAP without dose

- response values but with the

22 S ee SAB's Response to EPA's RTR Risk Assessment Methodologies ( EPA

- SAB

- 10

- 007), available online at: http://yosemite.epa.gov/sab/sabproduct.nsf/4AB3966E263D943A8525771F00668381/$File/EPA

- SAB

- 10

- 007

- unsigned.pdf29

greatest pot ential for public exposure. As a result of this prioritization, while not all HAPs may have scientifically

accepted dose

- response values that can be used in residual risk assessments, it is clear that the vast majority of HAPs which might carry the potenti al to significantly impact the results of residual risk assessments do, in fact, have credible dose

- response values. Thus, while we are not yet at the point where all HAPs have dose

- response values, we are generally capable of deriving reasonable risk estimates for those HAP which dominate the risks from any one source category . In the course of each residual risk assessment, should we encounter HAP without dose

- response values which carry th e potential to create significant risks, we shall clearl y point those out as uncertainties and target them for future IRIS assessments. Moreover, as additional dose

- response values become available, the EPA will incorporate these dose

- response values into future risk assessments. The dose

- response values that were used in this risk assessment are based on the current peer reviewed IRIS values. At the time this analy sis was performed , these values were deemed to represent the best science. Revised IRI S were not available at the time the anal ys is was performed. We cannot pick and choose newl y available values that have not gone through the IR IS (or other similarl y accepted) review process. We cannot delay rules for new IRIS values that may be developed in the future ; however , we can re - examine rules as new health information becomes available. Also, the commenter falsel y assumes that all new IRI S dose

response values will be more stringent than the existing values. The new IRI S doses

- response values could be l ess or more stringent, or equal to the existing values , depending on what the scientific data support. The EPA disagrees that with the commenter that we did not state which HAPs currentl y have no reference value. Table 3.1

- 1 in the risk assessment document23 lists all the HAP emitted by the source category , as well as whether there is an available cancer, chronic noncancer, and/or acute dose

- response value. Over 99.8 percent of the HAP emitted in this category has one or more of these reference values

. Regarding the commenter’s suggestion that EPA must conduct another residual risk anal ys is no later than 8 years from the finalization of the subpart S amendments, CAA section 112(f)(2)(A) requires EPA to assess the remaining risk no later than 8 ye ars after pro mulgation of the standards for each source category ; additional assessments are neither stipulated or prohibited. **25. Comment:**  Arsenic

. Commenter 0174 noted that the current unit risk e stimate (URE) for chronic cancer risk for arsenic in the IRI S database is 0.0043 μg/m 3 . The commenter stated that this risk factor was derived in the 1984 EPA Health Assessment Document (HAD) and is the basis of risk estimates in the HEM3 risk assessment m odel. During its reassessment of the North Carolina a cceptable ambient l evel (AAL) for arsenic during 2011, the North Carolina Science Advisory Board for Toxic Air Pollutants (NCSAB) included updated epidemiological data 24 with

23 See Table 3.1

- 1 of U.S. EPA’s Risk Assessmen t for the Pulp & Paper Source Category , in the docket for the subpart S rulemaking. 24 Lubin et al ., Respiratory cancer in a cohort of copper smelter workers: results from more than 50 years of follow

up Am J Epidemiol 151:554

– 565 (2000); Lubin et al., Resp iratory Cancer and Inhaled Inorganic Arsenic in Copper Smelters Workers: A Linear Relationship with Cumulative Exposure that Increases with Concentration. Environmental Health Perspectives 116(12) (2008); Järup et al. , Cumulative arsenic exposure and lung cancer in30

additional person

- ye ars and N C

- specific lung cancer mortality rates that alter the 1984 EPA risk estimate as a function of cumulative arsenic exposure. Additionally , there is better scientific understanding in 2012 compared to 1984 of the forms of arsenic involved in environmental exp osures and differences between risk based on industrial health and environmental exposure studies. The NCSAB concluded that , based on current science, the 1984 URE for arsenic used b y EPA is out

–of

- date and overestimates cancer risk by almost one order of magnitude. The NCSAB also concluded that the thresholds for non

- cancer risks associated arsenic are higher than cancer risk threshold and that arsenic standards based on cancer risk are protective of all health risk. **Response :**  The EPA has a hierarch y of appropriate health benchmark values , and , in general , this hierarchy

places greater weight on the EPA

- derived health benchmarks than those from other agencies , including benchmarks developed by the NCSAB 25 , 26 We have a prioritization process aimed at incorp orating into our assessments the best available science with respect to dose

- response information. This information is obtained from various sources and prioritized according to ( 1) conceptual consistency with EPA risk assessment guidelines and ( 2) level o f peer review received. Where we are lacking dose

- response information with higher priority (e.g., IRIS), we use other information sources, such as the California Environmental Protection Agency

( CalEPA ) . Notably , this hierarchy favoring EPA benchmarks (wh en they exist) over all others has been endorsed b y the SAB : 27 “The Panel found EPA ‟ s approach to selecting dose

- response chronic toxicity values to be generally

sound... The Panel supports the use of the Integrated Risk Information Sy stem (IRIS) as the preferred database for chronic dose

- response data. The Panel also strongl y recommends that EPA develop toxicity values for all HAP insofar as the data permit, and that it updates IRI S in a timelier manner.” “The preferred database for chronic dose

- response data is and should be the IRIS database. (p. 17)

. ” The URE value that w as used in this risk assessment for arsenic is based on the current peer - reviewed IRIS assessment (published in 1998, not in 1984 as the commenter stated) . At the time this analy sis w as performed , this value w as deemed to represent the best available science. A revised IRIS value for arsenic w as not available at the time the anal ys is was performed , and w e cannot pick and choose newl y available values that have not gone through the IR IS (or other similarly accepted) review process. **26. Comment:**  Acrole i n . Commenter 0162 stated that the health effects caused by exposure to acrolein are overestimated in EPA’s IRI S database. The commenter noted that, in 2007, the Hamner Institute completed a study of acrolein’s health effects, which included 90

- day

smelter workers: A dose

- response study. Am. J. Ind. Med. 15: 31

- 41 (1989); Viren & Silvers, Unit risk estimates for airborne arsenic exposure: an updated view based on recent data from two copper smelter cohorts." Regul Toxicol Pharmacol 20(2): 1 25

- 138 (1994)

. 25 S ee Health Effects Information Used In Cancer and Noncancer Risk Characterization For the 1999 National

Scale Assessment

. Available online at: http://www.epa.gov/ttn/atw/nata1999/99pdfs/healtheffectsinfo.pdf

. 26 See http://daq.state.nc.us/toxics/risk/sab/ra/. 27 S ee SAB's Response to EPA's RTR Risk Assessment Methodologies ( EPA

- SAB

- 10

- 007), available online at: http://yosemite.epa.gov/sab/sabproduct.nsf/4AB3966E263D943A8525771F00668381/$File/EPA

- SAB

- 10

- 007

- unsigne d.pdf

.31

animal/rat studies , as well as work on a computational fluid dy namic (CFD) model on uptake of acrolein to understand biological dose. According to the commenter, this research was then published in a peer - reviewed journal. 28 The commenter pointed out that on October 17, 2008, they sent a letter advising EPA of the new studies and in December 2010 asked EPA to update i t s acrolein IRIS assessment and amend the risk value for acrolein using the Hamner studies. Before EPA estimates any

risk from acrolein emissions, the commenter urged that the IRI S assessment on acrolein be revised to reflect the best available science. Commenter 0162 acknowledged that the SAB Panel , in February 2010, supported the use o f IRI S as the “preferred” database, but the commenter noted that the Panel also advised EPA to consider alternatives where the IRIS values are based on limited data. The commenter specificall y cited the Panel’s statement that it “found EPA’s approach to se lecting dose

- response chronic toxicity

values to be generally

sound, but recommends the Agency more closel y scrutinize values that emerge as drivers of risk assessment results.” 29 The commenter included T able 4 below comparing the acrolein RfC s used by gove rnment organizations for risk anal ys is, which, according to the commenter, shows that EPA’s current value for acrolein is not based on the best available scientific data and is more than 15 times more stringent than the RfCs established more recentl y by CalEPA and Ontario Ministry of the Environment (MOE)

. **Table 4. Comparison of Acrolein RfC Used by Various Government Organizations (Submitted by Commenter 0162)**  **Government Agency**  **Previous RfC (μg/m 3**  **) Recent**  **RfC (μg/m 3**  **) Year**  **of Recent RfC** EPA 0.02 0.02 2003 Hamner Institute

-- 0.6 2008 CalEPA 0.06 0.35 2008 Ontario MOE 0.08 0.4 2009 Commenter 0162 noted that EPA’s current RfC is based on a study b y Feron (1978) that examined few animals, did not involve exposure concentrations low enough to develop a no observed adverse effect level (NOAEL )

-- (just a lowest observed adverse effect level ( LOAEL)

-- and did not study

nasal uptake/activity . According to the co mmenter, EPA has acknowledged the study was of poor quality and that large uncertainty factors were used (1000x). The commenter cited the following statement from EPA in a technical document regarding the use of health effects information in evaluating sch ool air toxic monitoring results: The comparison level shown for acrolein is the EPA RfC which is set below a level associated with health effects. The RfC is set as a factor of 1000 below an exposure concentration associated with sensitive nasal effects i n laboratory animals. Since the EPA RfC was derived, the California EPA (CalEPA) has derived a chronic REL 30 based on

28 Do rman, et al

. , Respiratory Tract Response s in Male Rats Following Subchronic Acrolein Inhalation, Inhalation Toxicology 20:205

- 216 (2008). Schroeter et al ., Application of Physiological Computational Fluid Dynamics Models to Predict Interspecies Nasal Dosimetry of Inhaled Acrolein, Inhalation Toxicology 20:227

- 243 (2008). Struve, et al ., Nasal Uptake of Inhaled Acrolein in Rats, Inhalation Toxicology 20:217

- 225 (2008). 29 See 5/7/10 letter from SAB Panel to EPA

. 30 REL refers to a Reference Exposure Level. “CalEPA defines the REL as a concentration level at (or below) which no health effects are anticipated, a concept that is substantially similar to EPA's noncancer32

more recentl y available information on acrolein and its effects. The CalEPA REL , which is 0.35 μg/m 3 , is somewhat more than a factor of 100 below the level associated with effects in the more recently available study

. 31 According to the commenter, the recommended value, based on the Hamner Institute study , is 30 times less stringent than what EPA is using (0.6 μg/m 3 (270 parts per trillion [ ppt] ) vs. 0.02 μg/m 3 (9 ppt)). The commenter no ted that CalEPA (0.35 μg/m 3 ) and Ontario, Canada (0.4 μg/m 3 ) have set their RfCs at much less stringent levels. The commenter also noted that, in the technical document for interpretation of health effects surrounding schools, EPA referenced the values used b y CalEPA and Ontario as more appropriate. The commenter concluded that the alternative RfCs presented in the Hamner study are more scientificall y valid than the EPA IRI S value and asserted that, when both the Hamner study RfC and industry

emissions data for acrolein are applied, the anal ys is would not support a conclusion that there are any significant residual risks associated with acrolein emissions from the pulp and pap er source category
. Commenters 0162 and 0196 agreed with the decision to remove acrolein emissions from the subpart S modeling files “due to the uncertainty in the emissions estimates” (76 FR 81334). 32 Commenter 0162 noted that acrolein is a very reactive g as and hard to measure at the parts per billion level of emissions. The commenter stated that the primary generators of acrolein emissions are fires and mobile sources, but that EPA has not regulated acrolein from mobile sources to date. The commenter said that the forest products industry is a very small contributor to ambient levels/loadings of acrolein because paper mill acrolein emissions would only be a fraction of the 1 percent emitted from boilers and process heaters , according to data from the 2005 National

- Scale Air Toxics Assessment (NATA )

. **Response :**  We acknowledge the commenters’ support for the conclusion regarding the uncertainty with acrolein emissions. Due to the removal of acrolein emissions from the subject source category , the applicabili ty of the dose

- response value used is not relevant for this rulemaking. Acrolein emissions were removed from the subpart S modeling file due to

dose

- Response assessment perspective.” http://www.epa.gov/ttn/atw/toxsource/chronicsources.html 31 Schools Air Toxic Monitoring Activity (2009) Uses of Health Effects Information in Evaluating Sample Results, 09/10/2009, EPA, http://www.epa.gov/schoolair/pdfs/UsesOfHealthEffectsInfoinEvalSampleResults.pdf 32 Commenter 0162 noted that EPA elaborated on the causes of this uncertainty in its memorandum included as Appendix H t o the RTI me mo randum entitled, “Inputs to the Pulp and Paper Industry October 2011 Residual Risk Modeling,” located in the docket at EPA

- H Q

- OAR

- 2007

- 0544

- 0122. In the memo appendix , EPA explained that “in the case of acrolein from Subpart S non

- com bustion sources, this [EPA emission factor development] protocol results in emission factors based primarily on assumed 1⁄2

- MDL values from a majori ty of test runs where acrolein wa s not detected which introduced a large number of unknowns into the dataset, thereby multiplying the uncertainties [in the source of acrolein emissions from non

- com bustion sources] outlined above to an unknown degree. The uncertainty in the initial data set is further magnified when the emission factors are applied across the industry, yielding a resultant acrolein emission inventory predicated primarily on assumed values and not actual emissions measurements. This magnified uncertainty is compounded with the additional uncertainty of acrolein emissions from different paper machine operating parameters and different wood species used in pulping, resulting in further exacerbation of the uncertainty.” Inputs Memo p. H

- 2.33

uncertainty in the emissions estimates. 33 The EPA is working with the industry to help improve the test methods f

or acrolein from non

- combustion sources. Acrolein emissions were modeled for combustion sources in the facility wide modeling performed for the s ubpart S RTR and will be included in future residual risk modeling efforts (e.g., for subpart MM). Emissions estimates will be updated prior to future residual risk modeling efforts based on additional information available at that time and the refinements to facilitywide emissions inventories received in response to EPA’s December 2011 request for comments on th e data set. (76 FR 81346

- 81351) **27. Commen**  **t:** Formaldeh yd e . Three c ommenter s ( 0162 , 0196 , and 0208 ) objected to EPA ’s use of the 1991 IR IS dose

- response value in evaluating formaldehyde risk

. Commenter 0208 urged EPA to revise the proposed r ule to accuratel y convey

the best available science and a weight

- of

- evidence approach in compliance with the In formation Quality Act ( IQA ) Guidelines and Executive Order (EO) 13563. In particular, the commenter asserted that EPA should reject the 1991 IRI S dose

- response v alue and incorporate the 1999 CIIT cancer dose

- response value for formaldeh yde. 34 Commenter 0208 stated that the p roposed r ule is subject to EPA and Office of Management and Budget ( OMB ) IQA Guidelines. Congress enacted the IQA , Pub. L . No. 106

- 554, 114 Stat. 2763A

- 153 to 2763A

- 154, to “ensur[e,] and maximiz[e,] the quality , objectivity , utility and integrity

of information ... disseminated by Federal agencies” such as the EPA. In 2002, OMB issued its guidelines , and EPA issued its agency

- specific guideline s (EPA IQA Guidelines) later that ye ar. 35 The information that serves as the basis for EPA’s p roposed r ule must meet OMB’s guidelines as well as the Agency’s own guidelines and must adhere to a rigorous standard of quality . The p roposed r ule is based on “in fluential” scientific risk assessment information as set forth in EPA IQA Guidelines 36 because it contains “information disseminated in support of top Agency actions ( i.e. , rules...)” and is a “[m]ajor work product[]” that “will have ... a clear and substantial impact ( i.e. , potential change or effect) on important public policies or private sector decisions. ” 37 The substance of the information must be “accurate, reliable, and unbiased.” EPA must use the best available science and supporting studies, as well as “ a weight

- of

- evidence approach that considers all relevant information and its quality .” 38

33 For mo re information, see memorandum from T. Holloway, K. Hanks, C. Gooden, and M. Hakos, RTI, to J. Bradfield and B. Schrock, EPA, titled Inputs to the Pulp and Paper Industry October 2011 Residual Risk Modeling , November 11, 2011, in the docket for the subpart S rulemaking. 34 Chemical Industry Institute of Toxicology (CIIT). 1999. Formaldehyde: Hazard characterization and dose

response assessment for carcinogenicity by the route of inhalation (revised ed.). 35 OMB, Guidelines for Ensuring and Maximizing the Q uality, Objectivity, Utility, and Integrity of Information Disseminated by Federal Agencies, 67 FR 8452 (Feb. 22, 2002) (OMB IQA Guidelines); see EPA, Guidelines for Ensuring and Maximizing the Quality, Objectivity, Utility, and Integrity of Information Di sseminated by the Environmental Protection Agency, available at http://www.epa.gov/quality/ informationguidelines/documents/EPA_InfoQualityGuidelines.pdf

. 36 Pub. L. No. 106

- 554. The Information Quality Act was developed as a supplement to the Paperwork Re duction Act, 44 U.S.C. §3501 et seq. , which requires OMB, among other things, to “develop and oversee the implementation of policies, principles, standards, and guidelines to ... apply to Federal agency dissemination of public information.” 37 EPA IQA Guidel ines at 19

- 20 (internal citations omitted); OMB IQA Guidelines at 8455. 38 EPA IQA Guidelines at 21.34

Despite the numerous safeguards designed by OMB and EPA to ensure data quality , commenter 0208 argued that EPA has failed to rely on the best available science in dev eloping the p roposed r

ule. The EPA failed to comport with the IQA Guidelines in crafting th e proposed rule. In particular, The EPA incorporate d the 1991 IRI S dose

- response model

– an overl y conservative and outdated model

– for determining the level of ris k presented by formaldehyde exposure and ignored, without any rationale, nearly

25 years of research. The commenter stated that the use of the IRIS model is all the more egregious considering the availability of the CIIT biologicall y- based dose

- response ( B BDR) model, which better reflects the available science. Commenter 0208 further stated that , contrary to IQA guidelines, EPA inappropriatel y applie d the outdated IRIS dose

- response values in determining formaldehyde inhalation exposure risk in support of the p roposed r ule. In 2004, EPA determined that “the [formaldehyde] dose

response value in IRI S is based on a 1987 study , and no longer represents the best available science in the peer reviewed literature.” 69 FR 18327, 18333 (Apr. 7, 2004). In this same determination, EPA went on to state the CIIT dose

- response value was the most appropriate substitute. This determination led to the incorporation of the CIIT dose

- response value for formaldeh yde exposure in risk a ssessments supporting regulatory action. The commenter then highlighted EPA’s decision to use the IRI S value instead of CIIT dose

- response in the proposed r ule, following the recommendations of the NAS review (76 FR 81335). Commenter 0208 stated the NAS p anel was highl y critical of EPA’s 2010 Draft IRIS Toxicological Review of Formaldeh yd e Inhalation Assessment, 39 and specifically supported the use of the CIIT BBDR model. ( See NAS Report at 34

- 44. ) In fact, the panel concluded that “the BBDR model for formaldehyde is one of the best

- developed BBDR models to date” and specificall y recommended that “EPA use the BBDR model for formaldehyd e in its cancer assessment, compare the results with those described in the draft assessment, and discuss the strengths and w eaknesses of each approach.” (See NAS Report at 5. ) Commenter 0208 noted that in 2010, EPA rejected the BBDR model because it asserted that the variability

of the model is “not supportive of interpreting the CIIT model results as providing a conservative (health

- protective) estimate of human risk.” (See 75 FR 80220, 80228 (Dec. 21, 2010) (citing Crump et al. , 2008). ) 40 However, the sensitivity of the model had been questioned based on inappropriate manipulation. As explained by Conolly et al. (2009), while i t is important to ensure that the BBDR model is “health protective” in its estimation of cancer risk by performing a sensitivity

analy sis, such an anal ysis is only valuable if it is constrained by respect for the biological realism of the model

- predicted b ehavior. The NAS panel agreed ( see NAS Report at 5, see also id. at 42). Commenter 0208 stated the 1991 IRI S value does not constitute the best available science and therefore should not be used in determining formaldehyde inhalation exposure risk in suppo rt of the Proposed Rule. The BBDR model, which incorporates over 20 years of research to help characterize the roles of regenerative cellular proliferation (RCP) and DNA

- protein cross

-

39 National Research Council of the National Academies, Review of the Environmental Protection Agency’s Draft IRIS Assessment of Formaldehyde (2011) (NAS Re port). 40 Crump, K.S.; Chen, C.; Fox, J.F.; Van Landingham, C.; Subramaniam, R. 2008. Sensitivity Analysis of Biologically Motivated Model for Formaldehyde

- Induced Respiratory Cancer in Humans

. Ann. Occup. Hyg. 52:481

- 495.35

link (DPX) formation in formaldeh yde carcinogenicity ( see CIIT, 1999; NA S Report at 35), is a superior model for determining the cancer risk associated with formaldehyde exposure. The NAS panel concluded that “...The scope of the research makes this one of the best

- developed BBDR models to date for an y chemical, even with acknow ledged uncertainties.” ( See NAS Report at 42.) Furthermore, starting with biological data and a bottom

- up linear extrapolation model using EPA’s assumptions, Swenberg et al. (2010) report, at S136

- S137 : Our estimates of HL [Hodgkin l ymphoma] and LEU [leuk emia] risk diverge even more dramaticall y from the corresponding U.S. EPA estimates.... The marked disparities between the adduct

- based and epidemiology

- based cancer risk estimates for distant sites suggest strongl y that the excess risks of HL and NPC [nas ophary ngeal cancer] that have been reported in association with occupational formaldehyde exposures cannot be due to formaldeh yde.... Comparison of our risk estimates with corresponding estimates from the U.S. EPA draft document shows the latter to be markedly higher. This discrepancy between results obtained with molecular dosimetry and those that rel y on highl y uncertain retrospective exposure reconstructions calls into serious question the credibility of attributing increased human mortality from these can cers, particularl y at distant sites, to occupational formaldehyde exposures. 41 Commenter 0208 recommended that the NAS report should be used in determining what constitutes the best available science. The commenter stated that the deference given to the 1991 IR IS Assessment is directly at odds with EPA’s mandate to “consider all credible and relevant information” in a rulemaking proceeding. The commenter noted that EPA has repeatedl y emphasized that the Agency is required to consider other information, in addition to the IRI S database, when evaluating health effects in a regulatory context. 42 Inguidance on the use of IRI S for purposes of developing values under the earl y reduction program of the CAA , EPA noted: 43 It is also important to remember that IRIS is not a comprehensive toxicological database. There may

be more recent information available than is contained in IRIS. Moreover, the act of including a value in IRI S is not subject to notice and comment rulemaking, and may not necessarily

have been subje cted to external peer review.... Accordingl y, IRIS values are not entitled to conclusive weight and shall not be made legall y binding in the context of any

other rulemaking action. In addition, EPA or any State agency

that uses IR IS should not rel y exclusive ly on IRIS values but should consider all credible and relevant information that is submitted in any particular rulemaking. If an outside party questions IRI S values during the course of an EPA proceeding..., EPA will consider all credible and relevant infor mation before it in that proceeding.

41 Swenberg , J.A.; Lu, K.; Moeller, B.; Gao, L.; Upton, P.; Nakamura, J.; Starr, T. 2010. Endogenous versus Exogenous DNA Adducts: Their Role in Carcinogenesis, Epidemiology, and Risk Assessment. Toxicol. Sci. 120(S1):S130

- S145. 42 See Community Nutrition Instit. v. Y oung, 818 F.2d 943, 946 (D.C. Cir. 1987), McLoud Steel Prods. Corp. v. EPA , 838 F.2d 1317 (D.C. Cir. 1988); see also EPA, Residual Risk Report to Congress , EPA

- 453/R

- 99

- 001 (Mar. 1999), at 61 (“As the IRIS assessments for some HAPs are less current than others, the Agency will evaluate the appropriateness of some assessments in light of more recent credible and relevant information.”). 43 U.S. EPA, Guidance on Use of Integrated Risk Information System (IRIS) Values , Office of Air Quality Planning and Standar ds (1994).36

Commenter 0208 recognized the importance of considering all recent and relevant information instead of simply using IR IS assessment values as default values in Agency actions , which is echoed in an EPA Offi ce of Solid W aste and Emergency Response (OSWER) directive. 44 The need for careful examination of this information is also quite evident in the case of the formaldeh yd e dose

- response value where the IRI S dose

- response value is based on a study that is over 20 ye ars old. This fact was emphasized in the 2004 proposed rule for the NESHAP for s tationary c ombustion turbines, 40 CFR p art 63, where, in its discussion of the formaldehyd e dose

- response value, EPA state d that “the dose

- response value in IRIS is based on a 1987 stu dy , and no longer represents the best available science in the peer reviewed literature. Since that time significant new data and anal ys is has become available.” (See 69 FR 18333. ) The commenter stated that the NAS panel’s unequivocal support of the CIIT B BDR model should be considered when determining the best available science. Commenter 0208 stated EPA’s proposed rule should be based on the best available science at the time of the rulemaking. The EPA’s reversion to the 1991 IRIS assessment value for use in the proposed rule not only violates its own guidance on the use of IRI S for purposes of developing toxicological values, but also fails to meet the rigorous data quality standards for “influential information” outlined in the I QA Guidelines. To determine what constitutes the “best available science,” the EPA is required to conduct a comprehensive review of the available science, and make a determination based on the weight

- of

- evidence. The EPA ove rly simplified this process by

determining that the onl y two viable dose

- response values were the CIIT value and the 1991 IRIS value. The EPA defaulted to the 1991 IRI S value without conducting a comprehensive review of the considerable body of research th at has been conducted in the past 20 ye ars that may

suggest an alternative value that is supported by the best available science. Commenter 0208 noted that the U.S. Court of Appeals for the D.C. Circuit, in Chlorine Chemistry Council v. EPA , 206 F.3d 1286 (D.C. Cir. 2000), further underscored the importance of rulemaking “on the basis of the best available science at the time of the rulemaking.” (See id. at 1291 (emphasis in original). ) In holding that the best available science is the science available at the time of rulemaking, the D.C. Circuit C ourt unanimously rejected EPA’s contention that it would defer the application of the best available scien ce until after input from the S AB on the carcinogenic mode of action of chloroform. “The word ‘available’ w ould be senseless if construed to mean ‘expected to be available at some future date.’” (See id.) Similarl y, the research and data considered in the NAS Report of the Draft IRI S Assessment must be incorporated into this rulemaking; the EPA cannot legall y d efer application of the best available science

. C ommenter 0162 attached comments from commenter 0208 (Formaldeh yd e Panel for the American Chemistry

Council) to their public comment s and cited commenter 0208 ’s statement that “the EPA has failed to support key conclusions . . . with the best available science” 45 in evaluating the potential impacts fro m formaldehyde emissions. C ommenter 0162 also cited commenter 0208’s statements regarding EPA’s “ egregious ” use of the 1991 IRI S dose

- response model instead of the CIIT BBDR model, which commenter 0162 said better reflects the available

44 U.S. EPA, Use of IRIS Values in Superfund Risk Assessment , OSWER Directive No. 9285.7

- 16 (1993). 45 Comments from the Formaldehyde Panel f or the American Chemistry Council in Response to EPA’s Proposed NESHAP from Pulp and Paper Industry (Docket No. EPA

- HQ

- OAR

- 2007

- 0544

- 0208 .); 2/27/1237

science 46 and i s supported in the April 2011 NAS R eport of its review of formaldehyde risk. 47 C ommenter 0162 concluded that EPA is relying on an inferior model to support its impact anal ys is of formaldehyde emissions from pulp and paper mills. According to commenter 0162 , EPA inappropriatel y applied the outdated IRIS dose

- response values in determining formaldeh yde inhalation exposure risk in support of the proposed rule, contrary to IQA Guidelines. C ommenter 0162 argued that the 1991 IRI S model does not constitute the best available science and, therefore, should not be used in determining formaldehyde inhalation exposure risk in support of the proposed rule. The commenter stated that CIIT’s BBDR model is a superior model for determining the cancer risk associated with formaldehyde exposure and argued that EPA overstated the variability associated with CIIT’s model and based its view on inappropriate manipulations of the model’s underlyingassumptions. The commenter asserted that the deference given to the 1991 IRI S Assessment was directly at odds with EPA’s mandate to “consider all credible and relevant information” in a rulemaking proceeding and pointed out that EPA’s proposed rule s hould be based on the best available science at the time of the rulemaking.” 48 Commenter 0196 attached comments from the Formaldehyde Panel that were provided in response to EPA’ s p roposed NESHAP for wood f urniture m anufacturing o perations (Docket No. EPA

- H Q

- OAR

- 2010

- 0786) 49 , which were identical to the comments presented above , and concluded th at EPA has repeated the same fundamental mistakes in the pulp and paper proposal. C ommenter 0196 stated that EPA should follow NAS’s recommendation to use the “best available science” b y applying the CIIT dose

- response value rather than the outdated IRIS value. **Response :**  In 2004, the EPA determined that the CIIT cancer dose

- response value for formaldeh yde (5.5 E

- 9 μg/m 3 ) was based on better science than the IRIS cancer dose

- response value (1.3 E

- 5 μg/m 3 ), and we switched from using the IRIS value to the CIIT value in risk assessments supporting regulatory actions. Subsequent research published by EPA suggested that the CIIT model was not appropriate , and in 2010 EPA re turned to using the 1991 IRI S value. The EPA has been working on revising the formaldehyde IRIS assessment , and the NAS completed its review of the EPA’s draft assessment in April of 2011. 50 The EPA will follow the NAS Report recommendations and will present results obtained by implementing the BBDR model for formaldeh yde. The EPA will compare these estimates with those currentl y presented in the External Review draft of the assessment and will discuss their strengths and weaknesses. As recommended b y the NA S committee, appropriate sensitivity and uncertainty

analy ses will be an integral component of implementing the BBDR model. Inthe interim, we will present findings using the 1991 IRI S value as a primary estimate , and EPA may

also consider other informatio n as the science evolves. We should note that adequately judg ing all of the data is the

46 Id. 47 National Research Council of the National Academies, Review of the Environmental Protection Agency’s Draft IRIS Assessment of Formaldehyde (2011 ) (NAS Report), available at http://www.nap.edu/catalog.php?record id=13142

. 48 Comments from the Formaldehyde Panel of the American Chemistry Council in Response to EPA’s Proposed NESHAP from Pulp and Paper Industry, Attachment 2. 49 Comments from the Formaldehyde Panel for th e American Chemistry Council in response to EPA’s Proposed NESHAP for Wood Furniture Manufacturing Operations (Do cket No. EPA

- HQ

- OAR

- 2010

- 0786). 50 National Research Council of the National Academies, Review of the Environmental Pro tection Agency’s Draft IRIS Assessment of Formaldehyde (2011) (NAS Report), available at http://www.nap.edu/catalog.php?record id=13142

.38

goal of this process , and mere substitution of another model with its own set of critical uncertainties should not be adopted without a full vetting, which is the proce ss currentl y under way in the process of revising the IRIS value for formaldehyde. Contrary to what commenter 0208 states, the NAS did not make any recommendations on which values should be used in regulatory decisions, but did recommend that EPA consider all credible and relevant information in developing its hazard assessment in the IRI S process. Inclusion of all credible and relevant information is best done within the revised IRI S process, which is informed b y the NAS report. To circumvent that process for any specific context is likely to result in a less robust estimate of potential risk. **28. Comment:**  Lead

. Commenter 0218 stated that there is no reference concentration for , or any safe level of exposure to , lead. The EPA assessed risk for lead by reference to the 2008 NAAQS for l ead, which the commenter did not believe wa s protective enough . The commenter , stat ed the EPA may

not assume that what is “ adequate ” under section 109 is the same as what is
“ acceptable, ” and E PA must independently determine under section 112 what is needed to provide an “ ample margin of safety to protect health. ” The commenter noted differences between section 109 and section 112 assessments:

 The NAAQS was created to protect the average expose d member of the population from an IQ point loss abov e 2 points, not to protect the “ most exposed ” and most vulnerable member of that population who may experience greater harm at each level of exposure ;
 The l ead NAAQS was also designed to address only a s ingle pollutant (elemental lead), while section 112(f)(2) requires EPA to assess and address health risk from lead compounds and from the combined effect of a source category ’s HAP emiss ions on the most exposed person;
 T here is significant new information since the scientific review closed on the NAAQS, suggesting that a stronger standard is needed (the commenter cite d five documents from OEHHA, New York City (NYC ) Dep artment of Public Hygiene, Centers for Disease Control and Prevention ( CDC ) , and CalEPA as references, and attached four of the documents); and
 L ead can interact with other pollutants, such as arsenic, to cause greater harm than lead exposure alone. The commenter stated that section 112 (f)(2) requires EPA to create an “ ample margin of safety to protect public health, ” while the NAAQS must only satisfy the test to provide an
“ adequate margin of safety

. ” The commenter asserted that rather than rel yi ng onl y on the NAAQS to assess health risk from lead, EPA should use all of the best available, m ost current information, including California ’s lead health benchmark

– which recognizes that action is needed to protect children from a blood

- lead level increase of 1.0 micrograms per deciliter ( μg/dL )

– as part of its analy sis of health risk for lead. **Response :**  We recognize, as the commenter noted, that there is no RfC for lead. Nonetheless, it should also be noted that lead compounds are a minor HAP in this source39

category
. Emission inventories indicate lead compounds are 0.0001 percent of HAP emission s. 51 Lead emissions are generally below testing detection levels at category emission sources. Reported inventory

estimates, when present, are generall y derived from extrapolations based on the small quantity

of naturally

- occurring lead found in the wood raw material. We believe it is appropriate here to use the lead NAAQS as a basis for determining risk under an ample margin of safety anal ys is. In this circumstance, the small quantity of lead emissions in the category results in exposure levels well below the NAAQS. As a result of our ample margin of safety anal ys is, EPA found the risk from lead and other HAP emissions in this category to be acceptable. So, i n order to assess multipathway risks associated with emissions of lead, the EPA compared lead e missio ns from this category to the NAAQS for lead. As noted in the primary and secondary lead RTR rules (76 FR 70834 and 77 FR 556) , we believe that this is a reasonable approach , given that the NAAQS is a health

- based standard set to protect the public health, including the health of sensitive sub

- populations with an adequate margin of safety. Moreover, the NAAQS for lead specificall y is targeted to provide requisite protection with an adequate margin of safety

to prevent neurologic effects to children with low blood lead levels living near a lead source and exposed at the level of the NAAQS. Also , the risk assessment supporting the NAAQS considered direct inhalation exposures and indirect air

- related multipathway exposures from industrial sources like pulp and papermaking operations. While we conclude that the NAAQS presents an acceptable level of risk from lead in ambient air, as part of our “ample margin of safety” analy sis, we examined whether there were additional cost

- effective controls available to further protect public health. For the reasons explained in the proposal and other supporting d ocuments available in the docket, we have determined that there are no additional cost
- effective, technically feasible controls that would provide further risk reductions. With respect to the benchmarks from OEHHA, NYC Dep artment of Public Hygi ene, CDC, an d Cal EPA for protecting children, the EPA has a hierarchy of appropriate health benchmark values. In general, this hierarch y places greater weight on EPA

- derived health benchmarks than those from other agencies. 52 For further information on EPA responses re garding lead, please refer to the Response to Comment Document for the Secondary L ead Smelting Source C ategory ; this document will be included in the docket for the pulp and paper rule. 

### 4. **3 Uncertainties in Risk Assessment**  **29. Comment**  **:** Commenter 0161.1 be lieves that the methodology used to determine the inhalation exposure risk from HAPs is not a conservative assessment. The commenter question ed us ing the centroid , instead of the maximum exposed individual or property line, to estimate MIR. The commenter argued that the HEM3 mo del should include building downwash parameters
. B ecause these were not included, the commenter contended that ambient concentrations we re underestimated. The commenter state d that all RTR assessments should include 2010 c ensus data

51 See memorandum from T. Holloway, K. Hanks, C. Gooden, and M. Hakos, RTI, to J. Bradfield and B. Schrock, EPA, titled Inputs to the Pulp and Paper Industry October 2011 Residual Risk Modeling , Table 6B, November 11, 2011, in the docket for the subpart S rulemaking. 52 See Health Effects Information Used In Cancer and Noncancer Risk Characterization For the 1999 National

Sc ale Assessment

. Available online at: http://www.epa.gov/ttn/atw/nata1999/99pdfs/healtheffectsinfo.pdf

.40

instead of 2000 c ensus data and provide d an example to display the differences in the data for one location. **Response :**  T he 2010 census data were not available at the time the risk analy sis was performed for this source category

. However, future risk anal ys es will incorporate 2010 census data. **30. Comment:**  Commenter 0218 support ed EPA ’s decision to collect and review actual emission test data from this source category for this rulemaking using its CAA section 114 authority . The commenter believes that it i s unclear whether EPA ’s data set is actually representative of emissions, because although it appears to include some test data, it also uses estimates. The EPA must provide the HAP emissions inventory with the emission totals of each HAP for each facility , and state whether this came from test data or estimates. Failing to include this makes it difficult for the public to review EPA ’s data, which is the primary basis for EPA ’s proposed rule. **Response :**  The data set used to model emissions was representative of pulp and paper industry emissions. We described the NEI data set used for risk modeling in section III.A.1 of the preamble to the proposed rule ( s ee 76 FR 81333

- 81334). The actual annual emissions data in the NEI database were based on data from actual emissions tests and estimates of actual emissions (based on emission factors) provided b y subpart S sources surveyed in Part II of the 2011 pulp and paper IC R. Two substantial QA efforts were conducte d on the Part II data in order to create the modeling files needed for the residual risk assessment. Most emissions factors were based on actual tests or actual tests conducted at similar sources. Additionally , the largest HAP emission compound in the cate gory , methanol, at approximately 86 percent of the HAP in the category , is required to be quantified in each compliance test referenced in the standard. Consequently , the greatest proportion of HAP emissions at each facility are based on emission factors d erived from actual source

- specific tests. **31. Comment:**  Commenter 0218 claimed that the EPA underestimated the total risk that maximum exposed people face due to emissions from the pulp and paper source category ; the increased risk caused b y a person ’s expo sure to multiple ty pes of HAP ; or the baseline level of exposure . The commenter argued that uncertainty is not a rational explanation for failing to address this important element of health risk. Where public health is concerned, the commenter asserted, uncertainties require more conservative assessment and more protective action, rather than inaction ; the EPA must, at minimum, use an uncertainty factor to acco unt for the greater health risk, and the EPA must also follow the SAB recommendations to perform a sensitivity anal ys is to identify

the major uncertainties in both the human health and ecological risk assessments , explain the uncertainties , and take steps to reduce them. **Respons e**  **:** With respect to developing an upperbound uncertainity factor to account for background contribution or sy nerg i stic effects , we believe this would bias the uncertainity in the41

risk assessment even higher. Please refer to Section 4 of the risk assessment report 53 for more detailed discussions regarding the uncertainities for this risk assessment. 

### 4. **4 Risk** 

**Assessment Results 32.**  **Comment :**  Multiple c ommenter s ( 0162 , 0163, 0165, 0167, 0173, 0196, and 0212 ) supported EPA’s conclusion in the preamble to the proposed rule that “the current standard, before the amendme nts proposed here are put in place, protects public health with an ample margin of safety” (76 FR 81344). Commenter 0165 agreed with the EPA’s conclusion that the in

- force MACT has worked and there is no risk, Commenters 0163 and 0167 agreed with EPA’s con clusion that there is no need for revised or additional MACT to address residual risk under this NESHAP. C ommenter 0196 asserted that no further emissions reductions are needed to ensure protection of public health with an ample margin of safety

. Commenter s 0163 and 0167 noted that the EPA made its conclusion whether considering their estimate of MACT allowable ( i.e. , worst
- case) emissions or their estimate of actual emissions. The two c ommenters (0163 and 0167 ) contended that the EPA’s low

- risk conclusion i s understated because the risks probabl y are even less than EPA described ; commenter 0163 noted that MACT allowable emissions are typically substantiall y greater than actual emissions for a compl yi ng facility . Commenter 0172 argued that the estimated acceptable risks are overstated due to the use of conservative health benchmarks, inappropriate modeling assumptions, and overestimates of emissions and stated that , as a result , EPA’s conclusion that no further controls are need ed is well founded. C ommenter 0162 noted that the modeled risk results were based on data supplied by 171 mills during the I CR in 2011. C ommenter 0162 stated that the data collected comprised a comprehensive data set, reflecting the most up

- to
- date inform ation and estimated that the industry spent over $5 million to respond to the I CR, not including the cost for the original collection of the data that were included in the survey . According to commenter 0162 , the results of the anal ys is conducted by EPA sh ow that the NESHAP subpart S rule was successful ( i.e. , that MACT worked). The commenter said that this success was due to many factors, including the approximately

$1.0 billion dollars 54 spent by the industry

to achieve the emission reductions realized by the rule. **Response :**  We acknowledge the commenters’ support for our risk assessment conclusion that the current subpart S NESHAP protects public health with an ample margin of safety. **33. Comment:**  Commenter 0174 noted that the meteorological data used in the HEM3 model is not representative of the Blue Ridge Paper Products Inc. site

- specific meteorological data. The data input to the model was from a local regional airport. Due to the complex terrain in the region, the commenter asserted that their site

- spe cific meteorological data should be used. The compan y provided site

- specific data that is used by the North Carolina Division of Air Quality and EPA Region IV for modeling. The commenter provided specific data in their comment

53 See U.S. EPA’s Risk Assessment for the Pulp &Paper Source Category , in the docket for the subpart S rulemaking. 54 NCASI estimate for implementation of subpart S and subpart MM. Majority of the capital cost was for subpart S.42

attachment and stated that th e updated data showed a 60 percent decrease in HEM3 modeled risk. **Response :**  Th e meteorological data set that was used in the pre - proposal modeling for this facility

was the onl y data available to EPA at the time the modeling was conducted. We appreciate the commenter providing the meteorological data for remodeling risk for their facility post
- proposal . However , as discussed in the paragraph below (and in section 4.1.2) , the EPA has decided not to remodel risk for th e pulp and paper source category
. At p roposal, the EPA found the risk at each of the facilities in the source category to be acceptable under an ample margin of safety , and the post
- proposal NEI data revisions provided by the industry

(including this facility) will most li k ely adjust the risk results for the source category downward ( i.e. , reduce risk) , based on our review of the data revisions

. Because of this, the EPA has elected not to remodel risk for purposes of promulgating of the s ubpart S residual risk review , but instead to rely on the conclusions from the risk modeling conducted for the proposed rule. However, the meteorological data and comments provided by the commenter will be made a part of the public record in the docket for the subpart S rulemaking, alo ng with documentation suppo rting the EPA’s decision not to remodel risk

. 55 **34. Comment:**  According to commenter 0162, their consultant (hereafter referred to with commenter 0162 as “the commenter”) found the following errors in model input parameters among the mills with higher modeled risk. 56 The commenter expect ed that these ty pes of errors are common among all of the mills and thereb y likely contribute to a general overestimation of modeled risk from this industrial sector. The commenter found that, in EPA’s refined assessment of the acute risk of subpart S sources, 11 HAPs and 9 mills had modeled maximum acute HQ s of 1.5 and greater. Among these mills, the commenter determined that more than one

- third (4 of 9) have impacts that are dominated by

modeled wastewater treatment area sources that are incorrectly located. According to the commenter, EPA’s assessment of the potential health effects due to long

- term inhalation exposure from subpart S sources showed 42 mills had a modeled maximum individual lifetime cancer risk of 2 in a million or greater. The commenter found that predicted hazard indices for all mills were less than 1 for subpart S sources. For the 42 mills, the commenter made the following observations:

 The commenter found that risks at more than 64 percent of these mil ls (27 of 42) are primarily associated with emissions from mill sources characterized as area sources, simplistically

representing a large number of discrete emission sources. According to the commenter, in dispersion modeling, it is commonly found that a more detailed source characterization materially reduces modeled concentrations and associated modeled maximum off

- site risk. The commenter indicated that this is largel y because modeling as

55 See memorandum from T. Holloway, RTI, to J. Bradfield, B. Schrock, K. Spence, and N. Swanson, EPA. Recommendations Concerning Residual Risk Remodeling for the Pulp and Paper Industry, May 8, 2012 , in the docket for the subpart S rulemaking

. 56 See Attachment 1, “Revie w of HEM Modeling Conducted by EPA for the Pulp and Paper Industry RTR,” AE COM, February 2012.43

area sources inherentl y assumes that all emissions in the area ar e released at a single height and no credit is given for plume rise associated with individual point sources.

 The commenter found that about 17 percent of the mills (7 of 42) were characterized as single point emission sources or with consolidated release s emitted from only a few points. According to the commenter, this simplistic method insufficientl y characterized the spatial distribution of source emissions at the mill, and would be expected to result in overestimates of off

- site concentrations and asso ciated risk.

 The commenter found that about 26 percent of the mills (11 of 42) had incorrectl y located one or more of the sources that contributed substantially to the modeled risk. The commenter expected that more accurately locating these sources would r esult in lower modeled risk.

 The commenter found that 3 of the 42 mills had maximum modeled risk at a population

based receptor that was erroneousl y placed in an uninhabited and inaccessible location close to a major emissions source.

 The commenter found that about 26 percent of the mills (11 of 42) had erroneously calculated emissions, input the total facility emissions for a category into multiple sources rather than the contribution of each source, or used an emission factor based on questionable data. T he commenter expected that more accuratel y locating these sources would result in lower modeled risk.

 The commenter found that about 19 percent of the mills (8 of 42) had characterized sources with very

low or default fugitive release heights. According to the commenter, this simplistic method insufficiently characterized the dispersion of these source emissions at the mill, and would be expected to result in overestimates of off

- site concentrations and associated risk. The commenter also noted that, for se veral mills, the input data used in EPA’s risk assessment were incorrect and indicated that those mills intend to submit corrected or updated data to EPA. The commenter included the following examples of data corrections:
 The commenter found that HEM input data were off several orders of magnitude, due to either mistakes in the NEI submittals or transcription errors from the NEI to the HEM model.
 The commenter found that some facilities did not submit an updated NEI to EPA based on revised bleached paper ma chine emission factor data issued by NCASI in late June 2011.
 The commenter found that unrepresentative meteorological data were used in the HEM assessment. Based on the findings highlighted above and discussions with facility personnel, the commenter expe cted that the HEM risk results reported by EPA are in general higher than the actual risk for the industry that would be modeled if appropriate modeling refinements and corrections were made. The commenter pointed out that, even with these errors, EPA determined that the remaining residual risk levels were acceptable. As a result, the commenter realized that44

EPA may decide it is not necessary to rerun the HEM model and update the risk assessment at this time. The commenter wanted to note, however, that the correction of the identified errors would result in lower estimated risks for pulp and paper mills at current emission rates. **Response :**  Most of the comments provided pertain to mischaracterizations of emissions and release parameters by industry

. The EPA believes the data provided for the modeling run w ere of sufficient accuracy to characterize the risk for the source category

. We received a number of post

- proposal NEI data revisions from the pulp and paper industry that address the commenter’s concerns a

bout errors in model input parameters, as summarized in the paragraphs below. Of the mills with maximum acute HQ s of 1.5 and greater, there were 3 mills that commented about the incorrect location of receptors, a fourth that requested a change to the fugitive angle for their wastewater treatment source , and a fifth that submitted latitude/longitude corrections for their wastewater treatment source

. Of the 42 mills with a maximum individual lifetime cancer risk of 2 in a million or greater that provided post

- proposal NEI data revisions, there were 8 mills that revised the emissions release point type from “fugitive” to “stack” for various sources at the mills ( e.g. , papermaking, pulping, causticizing) and 4 additional mills that replaced their paper machine records with new records to account for stack emissions, wet/dry end emissions, all vents on the machine, etc. There were 12 mills that corrected the latitude/longitude values for their paper machines, wastewater treatment sources, pulping sources, and causticizing sources and 10 mills that requested changes to receptor locations. There were 26 mills that either reduced emissions ( e.g. , based on updated/corrected emission factors) or deleted pollutants ( e.g. , deleting HCE from bleaching/washing in accordance with NCASIguidance, deleting organic pollutants not expected from causticizing s ys tems using fresh water). There were also 7 mills that increase d the stack height for some of their sources when they changed the release point ty pe for those sources from “fugitive” to “stack.” Following the review of the NEI data revisions, a determin ation was made on a mill

- by

mill basis whether risk remodeling was needed for a particular mill ( i.e. , whether the NE I revisions would influence the outcome of the proposed risk assessment results)

. This determination was premised on the finding in the December 27, 2011 subpart S proposal that the risks from the pulp and paper source category are acceptable , and the current standard protects public health with an ample margin of safety . Therefore, as long as the risk for an individual mill would not be expected to increase substantially as a result of the mill’s NEI data revisions, remodeling was not recommended for that mill. Based on our review, we have concluded that the results of remodeling risk would most likely a djust the risk results for the s ubpart S source category downward ( i.e. , reduce risk). Nearl y all of the mills that submitted NEIdata revisions appear to have reduced their risk by reducing emissions, changing emission release point ty pe from fugitive to stack, and/or changing stack/fugitive parameters , among other changes

. For the few mills that increased e missions with their NEI data revisions, the mills already had chronic cancer risks at or below 1 in a million and acute non
- cancer risks below 1, and an y increase in ris k was expected to be minimal

. For the several mills that made parameter changes that could potentially increase risk, any increase in45

risk was countered b y other changes that could reduce risk ( e.g. , making other parameter changes, changing release point ty pe from fugitive to stack, and/or reducing emissions), a nd the mills already

had chronic cancer risks below 1 in a million , acute cancer risks below 1 , and no increase in emissions of risk driver pollutants for their subpart S processes

. Based on these findings , EPA has elected not to remodel risk for purposes of promulgating of the s ubpart S residual risk review , but instead to rely on the conclusions from the risk modeling conducted for the proposed rule. A memo for the docket has been prepared summarizing the NEI revisions, noting their likely effect on risk, and documenting the recommendation not to remodel risk. 57 **35. Comment**  **:** Commenter 0218 declared that the EPA failed to assess or account for the increased exposure and vulnerability of children and pregnant women. The commenter observe d that biological diff

erences in the developing child and fetus can result in increased cancer and non - cancer risk due to both increased exposure and increased vulnerability, and emphasize d that the EPA must account for the increased susceptibility of children to HAP emissions from this source category

in the risk assessment. The commenter state d that the most recent review of EPA risk assessment practices by the NAS explicitly

advise d EPA to include in utero exposures as a period of increased sensitivity to carcinogens, and the commenter cite d evidence from the most recent California draft risk assessment guidelines recommending assessment of health risk due to breast milk exposure as well as dermal and other ingestion exposures. The commenter note d that studies indicate increased risk from earl y life exposures for carcinogens not actin g b y a mutagenic mode of action and i ncreased susceptibility during earl y life exposures for non

- cancer effects, where ph ys iol ogical differences in the developing organism result in increased risks

. C ommenter 0218 list ed seven HAP s (formaldeh yd e, benzene, meth yl ene chloride, POM, hexavalent chromium, arsenic, and cadmium) of particular concern that should be evaluated for increa sed early

- life susceptibility . The commenter discusse d each HAP’s dangers, list ed multiple journal articles, and cited attachments to the comment letter to support the commenter’s statements. The commenter suggest ed that the EPA should adopt the CalEPA OE HHA child

protective scientific approach on cancer and other pollutants, and use at least an additional 10

- fold uncertainty factor to protect children. The commenter state d that the EPA must follow the lead of OEHHA b y using age

- dependent adjustment factor s for all carcinogens emitted by this source, including hexavalent chromium, acetaldehyde, formaldehyde, HCE , benzene, naphthalene, vin ylchloride, and others . The commenter asked that the EPA update its list of carcinogenic HAPs that act by a mutagenic mo de of action to include more recent evaluations of carcinogenic modes of action and to account for increased cancer risk resulting from prenatal exposures. The commenter suggest ed that the EPA use the OEHHA age - dependant adjustment factors and assess expos ure during fetal development; use an additional factor, similar to OEHHA’s 10X adjustment factor for cancer risk due to prenatal to 2 ye ar exposures, to address

57 See memorandum from T. Holloway, RTI, to J. Bradfield, B. Schrock, K. Spence, and N. Swanson , EPA. Recommendations Concerning Residual Risk Remodeling for the Pulp and Paper Industry , May 8, 2012, in the docket for the subpart S rulemaking.46

earl y life exposure in its risk assessment ; and to use adjustment factors for all carcinogens i n assessing health risk for children and pre

- natal exposure. The commenter ask ed that the EPA use OEHHA child

- specific reference doses to assess chronic noncancer and acute health risk, where they are available , including for cadmium, manganese, and nickel, as well as the lead benchmark

. The commenter observe d that the EPA has the scientific ability to translate these reference doses for oral, inhalation, and other pathway assessments
. The commenter propose d that the EPA apply at least a 10

- fold margi n of safety factor to protect children in these rulemakings, in addition to the uncertainty factors it already uses, when a child

- specific reference value or vulnerability information is not available. The safety factor should be applied as well for chroni c (non

- cancer) and acute health risk , according to the commenter. The commenter recommended that the EPA consult with multiple scientific bodies on the scientific basis of the proposed rulemaking , and noted that a dopting the OEHHA guidelines on age - depend ent adjustment factors and child

- specific reference doses and accounting for the greater exposure and vulnerability of children would be consistent with the SAB ’s recommendations

. The commenter observe d that Congress recognized this science in toxics legis lation in 1996, the Food Quality Protection Act (FQPA) for pesticide chemical residue, where Congress used a 10

- fold margin of safety for infants and children. T he commenter provide d a table of comparisons between OEHHA child

- health reference values and th ose of EPA. The commenter provide d references for the statements in this comment as attachments to the comment letter, and as citations in footnotes. **Response :**  The EPA disagrees with the commenter’s statement that this risk assessment underestimates risk to children and lacks consideration of earl y- life susceptibility

. The EPA agrees that biological differences across life stages may lead to differences in the susceptibility to HAP, as can differences among population groups due to pre

- existing disease states or other factors. Accordingl y, the methods we use in risk assessments have taken this into account. For the dose

- response component of HAP assessments for RTR, the EPA uses exposure reference concentrations and unit risk estimates that are expressly de rived with the objective of protecting sensitive populations and lifestages, including children. 58 For example, a review of the chronic reference value process concluded that the Agency ’s RfC derivation process adequatel y considered potential susceptibility of different subgroups with specific consideration of children, such that the resultant RfC valu es pertain to the full human population , including “sensitive subgroups,” which are inclusive of childhood. C ancer risk assessments are performed in accordance with EPA’s Supplemental Guidance. 59 This Guidance recommends the application of age - dependent adj ustment factors for assessing cancer risk from carcinogenic pollutants

58 S ee U

. S

. EPA. (2002) , A Review of the Reference Dose and Reference Concentration Processes . EPA/630/P

02/002F. Risk Assessment Forum, Washington DC. Available online at http://www.epa.gov/raf/publications/pdfs/rfd

- final.pdf

. 59 See U.S. EPA. (2005), Supplemental Guidance for Assessing Susceptibility from Early

-L ife Exposure to Carcinogens . EPA/630/R

- 03/003F. Washington, DC. Available online at: http://www.epa.gov/cancerguidelines/guidelines

- carcinogen

- supplement.htm

.47

concluded to act via a mutagenic mode of action and for which information on earl y- life susceptibility

is lacking. The basis for this methodology is provided in the 2005 Supplemental Gu idance. With regard to other carcinogenic pollutants for which earl y- life susceptibility data are lacking, it is the Agency ’s long

- standing science policy position that use of the linear low

dose extrapolation approach (without further adjustment) provides adequate public health conservatism in the absence of chemical

- specific data indicating differential earl y- life susceptibility

or when the mode of action is not mutagenicity

. 60 The EPA disagrees with the commenter statement that that EPA should use Calif ornia EPA’s child specific

- reference doses for school site risk assessments 61 in order to address the potential for early

- life susceptibility

. The EPA methods for assessing hazard and dose

- response relationships for HAPs and developing RfCs and cancer risk estimates, as noted above, specificall y address the potential for early

- life susceptibility . Whenever data indicate increased susceptibilty

of a developmental lifestage or of a population group, those data are factored into the anal ys is. When data are inad equate to understand the effects of a specific pollutant on sensitive subpopulations, which for some pollutants may include children, the Agency ’s risk assessment methods take that into account to ensure that resulting assessments address the possibility

that such subpopulations might be more or less sensitive. Further, in the RTR risk assessments performed using the agency ’s preferred dose

- response values, exposure is characterized as occurring all day , every day over a lifetime, rather than only during sp ecific periods of time during childhood. Inaddition, the EPA has a hierarchy of appropriate health benchmark values and in general, this hierarch y places greater weight on the EPA derived health benchmarks than those from other agencies (see http://www.epa.gov/ttn/atw/nata1999/99pdfs/healtheffectsinfo.pdf )

. Notably, this hierarch y favoring EPA benchmarks (when they exist) over all others has been endorsed by the SAB. **36. Comment**  : Commenter 0218 stated that EPA has failed to provide a reasoned explanation for its proposed determination that the current level of health risk for the pulp and p aper source category is acceptable, and that the EPA should find health risk from this source category to be unacceptable under section 112(f)(2). The commenter argued that the EPA has not adequately justified its proposed determination that health risk is acceptable, given the EPA’s findings of cancer risk that is 10 times the target of se ction 112(f)(2), i.e. , 10

- in

- 1 million (based on allowable emissions), an acute health risk of 20, which is 10 times EPA ’s own safety threshold , a TOSHIof 0.6 (based on allowable emissions), and that this source category emits PB

- HAPs, including one (POM) which poses a multipathway

risk that is 2 times EPA ’s threshold. T he commenter stated that in the NESHAP for f

erroalloy s p roduction ( 76 FR 72508 ), the EPA found the combination of cancer

60 Id

. 61 We note that California EPA’s use of the se numerical values, which do not exist for inhal ation exposures, is limited to the context of risk assessment at proposed or existing California school sites and does not extend to their Air Hot Spots Risk Assessment program . Further the guidance for the California EPA school site assessment program spe cifies the use of California OEHHA or U.S. EPA IRIS values in the absence of the school site risk assessment child

- specific values (Cal OEHHA, Guidance for School Site Risk Assessment Pursuant to Health and Safety Code Section 901(f): Guidance for Assessing Exposures and Health Risks at Existing and Proposed School Sites, Final Report , February 2004, available online at: http://www.oehha.ca.gov/public_info/public/kids/pdf/SchoolscreenFinal.pdf ).48

risk of 80

- in

- 1 million actual/100

- in

- 1 million allowable and chroni c non - cancer TOSHI of 90 actual/200 allowable to be “unacceptable

. ” The commenter recommended that the EPA should do the same here, because there is both a high cancer and acute health risk for this source category
. The commenter also asserted that the EPA ’s risk assessment does not provide a full picture of the true risk, citing omissions in the EPA’s risk assessment and uncertainties , such as a lack of accounting for the additional health risk to children and pregnant women, a lack of reference values for some pollutants, and failure to assess risk from malfunctions or violations. The commenter argued that all of these gaps mean that it is uncertain how much the EPA underestimated risk, and the EPA should find the health risk from this source category to b e “unacceptable.” The commenter concluded that b ecause EPA ’s risk assessment and acceptability determination fail to address or consider important elements of the emiss ions, exposure, and health risk , EPA ’s anal ys is is incomplete, unlawful, and arbitrary and capricious. **Response :**  Pollutant

- specific RfCs are not absolute thresholds, but estimates of chronic inhalation exposures , at or below which health effects would not be expected to occur, including in sensitive subgroups. We further note that these RfCs are developed using a health

- protective approach 62 and that TOSHI values of 1 or less are (like RfC levels) generall y considered to carry no appreciable risk of adverse health effects. We further note that we generally draw no bright lines of acceptabi lity

regarding cancer or noncancer risks from source category HAP emissions, and that it is alway s important to consider the specific uncertainties of the emissions and health effects information regarding the source category in question when deciding exac tly what level of cancer and noncancer risk should be considered acceptable. In addition, the source category

specific decision of what constitutes an acceptable level of risk should be a holistic one; that is, it should simultaneously

consider all potenti al health impacts

-- chronic and acute, cancer and noncancer, and multipathway

-- along with their uncertainties, when determining the acceptable level of source category

risk. Experience with source category rulemakings in the past tells us that this means th at drawing bright lines for such decision

- making is impossible. The Benzene NESHAP decision framework of 1989 acknowledged this; in today ’s world, such flexibility is even more imperative, because new information relevant to the question of risk acceptabil ity is being developed all the time, and the accuracy and uncertainty of each piece of information must be considered in a weight

- of

- evidence approach for each decision. This relevant body of information is growing fast (and it will continue to grow faster and faster), necessitating a flexible weight

- of

- evidence approach that acknowledges both complexity and uncertainty in the simplest and most transparent way possible. While this challenge is formidable, it is nonetheless the goal of the EPA’s RTR decision

- making, and it is the goal of the risk assessment to provide the information to support the decision

- making process. In this case, considering all the available risk information and the uncertainties associated with that risk information, risk was found to be acceptable. However, as is the case for all RTR reviews, as part of the second step ample margin of safety anal ys is, we did look for additional controls and process improvements that might further reduce risks in a cost

- effective, technicall y feasibl e manner. In this case however, we didn't find any such controls.

62 S ee section 4.2 (uncertainty discussion) in U.S. EPA’s Risk Assessment for the Pulp &Paper Source Category , in the docket for the subpart S rulemaking.49

With respect to the potential for multipathway risk, we note that the results referenced by the commenter were from a worst

- case screening scenario and do not indicate that adverse multipathw ay

effects are going to occur. The EPA has since develop ed a refined emission screening thresholds using TRIM.FaTE. This refined approach uses ; ( 1) improved toxicity rating/scaling methods for POMs and dioxin congeners; ( 2) improved fate, transport, and uptake behavior thru the aquatic food chain; and ( 3) updated fish and soil ingestion rates. The above changes resulted in a higher screening threshold for emissions of POMs , resulting in the PB

HAP emissions being below the screening threshold by a factor of 9 and below a risk screening scenario with an excess cancer risk of 1 in a million. 63 It would be inappropriate for EPA to a dd a screening threshold exceedance as an estimate for multipathway

risks with the modeled inhalation risks. The screening thresho ld is not intended to be used to produce quantitative estimates of actual or potential risk. Rather, it provides a basis for determining if residual human health risks are of potential concern. The screening thresholds are based upon a worst

- case scenario , which may not even be applicable to the site , depending upon geograph y and release parameters for those pollutants that are PB

- HAPs. Addressed elsewhere in this document are the commenter’s concerns about the additional health risk to children and pregnant women (see the previous response) , the lack of reference values for some pollutants (see the first response in section 4.2.5) , and assess ing risk from malfunctions or violations (see the third response in section 4.2.3). **37. Comment:**  Commenter 0218 recommended that EPA find the cancer risk from this source category

to be “unacceptable, ” reduce cancer risk to a lower level, and aim to achieve a cancer risk below 1

- in

- 1 million, as that is the statutory target of section 112(f)(2). The commenter disagreed with the EPA ’s basing of its acceptability determination on the outdated presumptive limit (100

- in

- 1 million) of what lev el of cancer risk is acceptable, which is based on the “presumptive limit ” of acceptability that EPA created in the 1989 Benzene R ule. The commenter stated that the EPA has not adequately explained why

it is not requiring additional emission reductions that would further reduce cancer risk to ensure an acceptable level of risk in today ’s world. The commenter noted that s ignificant re asons exist for EPA to set a lower presumptive level of risk acceptability , including the need to better protect children, as well as knowledge of the grave health risks at stake for local communities and the need for environmental justice (EJ)

. The commenter observed that s cience, pollution controls, and societal values and standards of fairness

–including a new commitment to EJ

– have all advanced dramaticall y in recent ye ars and since the 1980s. To bolster the commenter’s argument, the commenter listed multiple milestones that have occurred since the 1988 presumptive benchmarks , including the 1990 CAA amendments, EO 12898 on Environmental Justice , EO 13045 on Children’s Environmental Health, and other findings and determinations regarding children’s health. The commenter stated that applyingthe acceptability presumption developed from the 1988 document is arbitrary and capricious for the following reasons:

63 For more information on the changes made to the PB

- HAP screening thresholds , refer to U.S. EPA’s Residual Risk Assessment for the Pulp & Paper Source Category , Appendix 4, “ Overvie w of Tiered Approach to Assessing Multipathway Exposures for RTR ,” in the d ocket for the subpart S rulemaking

.50

 The CAA requires an up

- to
- date contemporary assessment ; section 112(f)(2) directs the EPA to assess and address risk remaining to public health and the environment 8 years after the MACT standard is in place, a inherent direction to take account of new circumstances;

 There is significant new information on the factors the EPA discussed in its old rulemaking that should influence its analy sis of what level of risk is currently “acceptable” ;
 Scientific research has evolved dramaticall y since the EPA set that presumption. The commenter cited risk assessment studies and guidance, studies on children’s exposure t o toxics, and CDC reports as providing evidence of the EPA and other federal ly funded research and developments in health effects of chemicals (examples we re provided as attachments to the commenter’s letter);

 The EPA’s commitment to EJ must inform its con sideration of what level of risk is “acceptable , ” as required by the 1994 Environmental Justice EO and 2010 guidance to direct all federal agencies to take EJ into consideration ; and

 American values and policies have evolved to tolerate less health risk from industrial pollution since the 1988 Survey , and Congress amended the CAA after the 1988 study to reduce deaths and human health risks from air pollution, presumably because it did not consider the risk of death from air pollution at that time to be acceptable

. **Response :**  Based on Response from Primary Lead p

. 12 As an initial matter, we note that in 1990 , Congress codified in section 112(f) of the CAA the decision approach we use for interpreting our residual risk anal ys es ( i.e. , the Benzene NESHAP, 54 FR 38044). Under that approach, the 100

- in

–a - million cancer risk is not a bright line indicating that risk is “acceptable,” but rather we consider this health metric in conjunction with a variety of health factors to determine whether the risk is acceptabl e. Where we conclude that the risk is not acceptable, we cannot consider costs in requiring controls to bring risks down to an acceptable level. However, the anal ys is of whether risk is acceptable is not the endpoint. Once we determine that controls are su fficient to ensure risk is acceptable, we again review the health metrics in conjunction with considering the costs of controls to determine whether additional controls should be required to provide an ample margin of safety. Moreover, the commenter does n ot support their contention that people are now unwilling to accept a level of risk that was acceptable at the time the CAA was amended in 1990. Nor does the commenter support how science has evolved in a way that would undermine the codified framework for determining acceptability . We note that , for purposes of the proposed rule, relative to EJ issues, we performed a demographic anal ys is for the purpose of informing the public, and that anal ys is is in the docket. 64 **38. Comment:**  Commenter 0218 stated that EP A should reduce the threshold of what cancer risk is presumed to be acceptable, and find the cancer risk in the proposed rule to be unacceptable. The commenter observed that although the HON decision found that EPA was not required to achieve a lifetime cancer risk of 1

- in

- 1 million, that decision recognize d that EPA has

64 See U.S. EPA’s OAQPS Environmental Justice Analytical Team Report , in the docket for the subpart S rulemaking.51

full authority

to protect public health by reducing risk to a lower level, and the decision did not authorize EPA to continue presuming forever that any lifetime cancer risk between 1

- in

- 1 million and 100

- in

- 1 million is acceptable. The commenter observed that references to the Benzene Rule in section 112(f) also do not give EPA blanket authorization to avoid updating the Benzene Rule approach forever ( See 42 U.S.C. 7412(f)(2)(B) [ statin g th at 112 provision shall not “be construed as affecting, or applying to ” EPA ’s interpretation of the statute as set forth in the Benzene Rule, 54 FR 38044 ] , and 7412(f)(2)(A) [ referring to the Benzene Rule ] )

. **Response :**  We do not consider the 1

- in

- 1 million MIR level as a ‘bright line’ mandated level of protection for establishing residual risk standards. In determining the ample margin of safety ( i.e. , the level of the standard), health risk is one factor that we must consider, along with oth er factors such as cost and technological feasibility . Balancing these and other factors with the ability to achieve meaningful risk reduction is a critical component of the residual risk rulemaking process. The major contributors to this risk are HCE and naphthalene from kraft processes such as pulp stora ge, wastewater, and bleaching. In general, the contribution of the source category

to elevated facilitywide cancer or noncancer risks is low throughout the faci lities in this source category

. The maximum f acility

- wide MIR is 30 in a million, with the pulp and paper source category (MACT code 1626

- 1) contributing 27 percent of the risk. The remaining 63 percent is driven b y emissions of arsenic and chromium (VI) from hazardous waste incineration. The maximum facility

- wide TOSHI is 2, driven by emissions of antimony compounds from kraft SDT process units. The pulp and paper source category (MACT code 1626

- 1) contributes approximately 11 percent to the facility- wide TOSHI. **39. Comment:**  Commenter 0225 stated th at in their community , the largest polluter is Port Townsend Paper Corporation (PTPC). Extensive health impacts are suffered from the pollutants emitted at the mill site, including , but not limited to , respiratory distress, seizures, and chronic asthma. Th e commenter stated there were strong smells emanating from the mill. The commenter expressed concern about the increased health impacts from those individuals at the nearb y s chool and hospital. Commenter 0225 rejected the acceptable risk levels , as determi ned in the Benzene NESHAP , a s acceptable in the commenter’s area of residence. The commenter attached two documents citing Washington Cancer Registry Figures (see commenter attachments 0225.2 and 0225.3), stating that Port Townsend/Jefferson County WA is in the top 3 of 39 W ashington counties for 11 out of 24 ty pes of cancer. The commenter contended that if the mill is operating within legal limits, those established limits are too high. **Response :**  The final residual risk assessment for the s ubpart S NESHAP RTR is available in the docket and at http://www.epa.gov/ttn/atw/pulp/pulppg.html

. It is unclear whether the commenter is referring to emissions from sources that were subject to this review or other regulated emissions from the facility

. Appendix 5 in th e assessment provides all of the risk impact information for each individual site in the pulp and paper category , including Port Townsend Paper Corporation, NEI ID NEI42357. The conclusion of our assessment was that the risk associated with HAP emissions f rom all facilities in this category is acceptable. As part of the information collection activity associated with the rule development , we collected and reviewed operating permits issued to facilities in the industry

. Like other industry facilities, the Po rt Townsend mill is subject to regulations other than section 112 NESHAP ( e.g. , New Source52

Performance Standards (NSPS) for Kraft Pulp Mills, 40 CFR part 60 s ubpart BB) , and the mill has agreed to permit conditions for regulated pollutants ( e.g. , total reduced sulfur [TRS]) that were not subject to this regulatory review but will b e reviewed in the future. **40. Comment:**  Commenter 0218 asserted that EPA should find the acute health risk from the pulp and p aper source category to be unacceptable und er section 112 (f)(2). The commenter observed that in the EPA’s 2004 risk assessment documentation, the EPA stated that an HQ of 1 or less indicates a safety threshold for EPA for both chronic non

- cancer and acute health effects , and when an HQ value is mor e than 1 , additional information is used to determine if there is a potential for significant acute risk. The commenter disagreed with the EPA’s determination that with an acute HQ of 20, risk is acceptable. Additionally , the commenter observed, the EPA ’s acute health risk number did not include the combined acute health risk that can occur due to multiple pollutant emissions simultaneously in an acute health incident and did not assess facility

- wide acute health risk, and the EPA did not assess the acute h ealth risk based on allowable emissions. **Response :**  As noted in a previous response , w e generall y draw no bright lines of acceptability

regarding cancer or noncancer risks from source category HAP emissions, and it is alway s important to consider the spe cific uncertainties of the emissions and health effects information regarding the source category in question when deciding exactly what level of cancer and noncancer risk should be considered acceptable. In addition, the source category

specific decision of what constitutes an acceptable level of risk should be a holistic one; that is, it should simultaneously

consider all potential health impacts

-- chronic and acute, cancer and noncancer, and multipathway

-- along with their uncertainties, when determining the acceptable level of source category

risk. Experience with source category rulemakings in the past tells us that this means that drawing bright lines for such decision

- making is impossible. Inthis case, considering all the available risk information and the uncertainties associated with that risk information, risk was found to be acceptable. However, as is the case for all RTR reviews, as part of the second step ample margin of safety analy sis, we did look for additional controls and process improvements that might further reduce risks in a cost

- effective, technicall y feasible manner. In this case however, we didn't find any s uch controls. In addition , it should be noted that the max off

- site HQ was actuall y 15, which was rounded to 20, and the HQ (AEGL

- 1 ) was 0.4

. For a location in which people reside, the HQ (REL) was actuall y only 2. We disagree with the commenter that EPA should create a combined acute risk number that would represent the total acute risk for all pollutants that act in a similar way on the same organ s ys tem or s ys tems (similar to the chronic TOSHI). As noted in previous responses, the worst
- case acute screen is already a conservative scenario. That is, the acute screening scenario assumes worst
- case meteorology , peak emissions for all e mission points occurring currentl y and an individual being located at the site of maximum concentration for an hour. Thus, as noted in section 2.72 of the risk assessment document 65 : “because of the conservative nature of the acute inhalation screening and the variable nature of emissions and potential exposures, acute impacts were screened on an individual pollutant basis, not using the TOSHI approach. ”

65 See U.S. E PA’s Residual Risk Assessment for the Pulp & Paper Source Category , in the d ocket for the subpart S rulemaking

.53

**41. Comment:**  Commenter 0218 disagreed with the EPA’s acceptability determination for chronic non

- cancer h ealth risk. The commenter urged the EPA to not assume that 1 is an acceptable level of chronic non

- cancer risk from a single major air toxics source category

. The commenter observed that the EPA failed to account for the greater risk to children and due to earl y exposure and did not assess cumulative toxic air health risk

. The commenter stated that by finding that a non

- cancer TOSHI of 1 or below is not a human health concern, EPA has arbitraril y i gnored its staff ’s past scientific assessment of this issue, in the 2002 internal memo Residual Risk Program: Selection of Hazard Index L imits, where EPA stated that the default HI limit for chronic non

- cancer risks should be well under 1.0 for individual sources

— specifical ly , staff then recommended that it should be no higher than 0.2. The commenter recommended that the EPA reduce the TOSHI presumptive acceptability threshold to 0.2 or below to ensure that EPA is fully protecting the most

- exposed people in local communities exposed to multiple sources and ty pes of toxic air pollution. The commenter expressed concern that the EPA concede d that the TOSHI itself “may have been underestimated,” in a statement , confusing to the commenter, that only say s that “impacts on organs or sy stems that occur above the critical dose have not been included in the TOSHIcalculations.” The commenter observed that this is a dramatic way of underestimating risk, in that if EPA takes out impacts that are occurring above the critical dose, EPA is i gnoring health risk that has already reached an unacceptable level. The commenter stated that this has no rational basis and demonstrates that EPA must reduce the TOSHI. According to the commenter, the EPA’s facility

- wide risk that shows a TOSHIof 2 and c ontribution of 11 percent of the risk from this source category is a significant contribution. The commenter asserted that the EPA must reduce the TOSHIfor the pulp and paper source category because it is contributing over 10 percent of the facility

- wide risk, which is 2 times EPA ’s own threshold. The commenter further argued that the EPA has not combined its risk analyses , but has listed them all together and treated them as separate ty pes of risk , which is unlawful, arbitrary , and capricious, and it undermines EPA ’s acceptability determination. The commenter stated that EPA has failed to justify

how the chronic non

- cancer risk number could be acceptable when combined with all of the other kinds of health risks that EPA has found, including high cancer risk (that is, above 1

- in

- 1 million), multipathway risk, and high acute risk. **Response :**  Based on Bin 1 Response. The EPA has not used a TOSHI value of 0.2 as a default upper li mit for acceptable chronic noncancer risk in RTR rule making. In determining whether to require additional standards, non

- cancer risks are considered in addition to cancer risks and other health measures and factors. A TOSHIof 1.0 is not considered a rigi d line for acceptability , and we weigh this value with other health measures and factors in both the decision regarding risk acceptability and in the ample margin of safety determination. In regards to facility

- wide risk, if a source category contributes s ignificantly

to elevated facility

- wide non

cancer risks, we may

consider whether additional standards should be required to reduce those risks.54

**42. Comment:**  Commenter 0218 stated that the EPA has failed to explain its conclu sion that multipathway

risk is “ acceptable. ” The commenter asserted that the EPA failed to fully assess multipathway

health risk (for multiple reasons listed in other comments) and to combine health risks to assess the cumulative risk burden . The commenter suggests that as a result of this high multipathway

risk, the most exposed person will face a total cancer risk that is above the cancer risk the EPA described in the preamble, though it is unclear b y how much more because the EPA has not provided the risk data needed to i nform this. According to the commenter, the EPA must require further reductions in multipathway risk to achieve an acceptable level. **Response :**  EPA develop ed the scenario in the multipathway screen in order to estimate the upper end of the range of indivi dual, long

- term, non
- inhalation exposures for situations likely to be encountered in the United States. The approach is described in the “ Overview of Tiered Approach to Assessing Multipathway Exposures for RTR ,” available as Appendix 4 to the risk assessme nt document in the docket for the subpart S rulemaking. 66 Since proposal, EPA has refined the emission screening thresholds, which use TRIM.FaTE. These refinements include: (1) improved toxicity rating/scaling methods for chemical specific POMs and dioxin c ongeners to account for their individual fate and transport properties versus using the fate and transport properties of benzo(a)p yrene and 2,3,7,8

- TCDD; (2) improved fate, transport, and uptake behavior through the aquatic food chain; and (3) updated fish and soil ingestion rates from EPA’s 2011 Exposure Factors Handbook

. 67 These changes resulted in a revised screening threshold for emissions of POM, which results in the POM emissions for all pulp and paper facilities being below the screening threshold. Wh en considered along with the results from the inhalation assessment (where the highest risk was 10 in a million), we determined that the risks from POM emissions for the source category were low. 68 **43. Comment:**  Commenter 0218 recommended that the EPA aggregate health risk for the source category

and decide whether the total health risk from each pollutant or from all pollutants combined is unacceptable, and to not do so is arbitrary and capricious . The commenter stated that th e EPA is required to assess a community ’s total exposure to toxic air pollution, in context, to decide how much additional pollution protection is needed from this source category , i.e ., the source category ’s necessary amount of reduction. The commenter as ked that the EPA aggregate risk from multiple sources of pollution, multiple pollutants, and recognize background levels of past exposure that increases current health risk to create a combined health risk metric that accounts for s yn ergistic effects. The commenter believes that b y not performing a full, cumulative risk assessment, EPA failed to demonstrate that the risk remaining under its proposed rule would be “acceptable.” The commenter stated that the EPA must combine the health risks and address them together as a whole cumulative health burden to satisfy its legal duty under section 112(f)(2), and to consider all health risks to the most

- exposed person, combined, from this source category

.

66 See U.S. EPA’s Residual Risk Assessment for the Pulp & Paper Source Category , Appendix 4, “ Overview of Tiered Approach to Assessing Multipathway Exposures for RTR ,” in the docket for the subpart S rulemaking

. 67 See U.S EPA, Exposure Factors Handbook: 2011 Edition ; EPA/600R

- 090/052F; available online at: http://www.epa.gov/ncea/efh/pdfs/efh

- complete.pdf 68 For more information on the changes made to the PB

- HAP screening thresholds, refer to U.S. EPA’s Residual Risk Assessment for the Pulp & Paper Source Category , Appendix 4, “ Overvie w of Tiered Approach to Assessing Multipathway Exposures for RTR ,” in the d ocket for the subpart S rulemaking.55

**Response :**  The EPA addressed the aggregate health risk for th e source category by conducting an assessment of the cumulative cancer risks from emitted carcinogens and the cumulative noncancer HI s from all emitted non

- carcinogens affecting the same target organ sy stem for both the source category emissions and the fa cility

- wide emissions. This assessment exclud ed background contributions from HAPs as well as PB

- HAPs. While the incorporation of additional background concentrations from the environment in our risk assessments including those from the past and future (mo bile sources and other industrial and area sources) could be technicall y challenging, they are neither mandated nor barred from our analysis. In developing the decision framework in the Benzene NESHAP 69 currentl y used for making residual risk decisions, EPA rejected approaches that would have mandated consideration of background levels of pollution in assessing the acceptabi lity of risk, concluding that “ comparison of acceptable risk should not be associated with levels in polluted urban air” (54 FR 38044, 3 8061, September 14, 1989). Background levels of certain HAPs can be relativel y high, perhaps even above a level th at might be considered “safe.” Background levels (including natural background) are not barred from EPA‘s AMOS analy sis, but EPA may consider them, as appropriate and as available, along with other factors, such as cost and technical feasibility , in the second step of its 112(f) analy sis. In this analy sis , background levels were not considered because it is technicall y infeasible. This is becaus e for th is source category, technical limitations in the data set for this source category

make it insufficient to create a reliable anal ys is

. **44. Comment:**  Commenter 0218 stated that EPA failed to combine risks from multiple HAP and pathway s and thus failed to assess cumulative impacts and health risk. In order to satisfy section 112 (f)(2), the commenter contended that the EPA should:

 Create a combined acute risk number th at would represent the total acute risk for all pollutants that act in a similar way on the same organ s ys tem or sy stems, similarly to the chronic TOSHI;
 Perform a cumulative risk assessment that combines inhalation and multipathway risk for each pollutant , including pollutants such as cadmium, arsenic, mercury , and lead that cause both types of risk;
 Create an y m etric to assess the total, combined health risk that could be used to assess the cumulative impact of all of the ty pes of risks and to view risks as a single cumulative burden. **Response :**  We disagree with the commenter that EPA should create a combined acute risk number that would represent the total acute risk for all pollutants that act in a similar way on the same organ s ys tem or sy stems (simil ar to the chronic TOSHI ). As noted in previous responses, the worst

- case acute screen is al ready a conservative scenario. That is, the acute screening scenario assumes worst
- case meteorology , peak emissions for all emission points occurring currently and an individual being located at the site of maximum concentration for an hour

. Thus, as noted in section 2.72 of the risk assessment document: “b ecause of the conservative nature of the acute inhalation screening and the variable nature of emissions and pote ntial exposures, acute impacts were screened on an individual pollutant basis, not using the

69 National Emission Standards for Hazardous Air Pollutants: Benzene Emissions from Maleic Anhydride Plants, Ethylbenzene/Styrene Plants, Benzene Storage Vessels, Benzene Equipment Leaks, and Coke By

-Product Recovery Plan ts (54 FR 38044, September 14, 1989) (Benzene NESHAP).56

TOSHIapproach

. ” 70 In the future, we will, continue to refine various aspects of our acute assessments as methods improve and more data become available. Attendent to such improvement will be a reconsideration of whether to use TOSHI in our acute assessments. It would also be inappropriate for EPA to a dd a screening threshold exceedance as an estimate for multipathway risks with the modeled inhalation risks. The screening threshold is not intended to be used to produce quantitative estimates of actual or potential risk. Rather, it provides a basis for determining if residual human health risks are of potential concern. The screening thresholds are based upon a worst

- case scenario , which may not even be applicable to the site , depending upon geograph y and release parameters for those pollutants that are PB

HAPs. Failure of a screen could result in a decision for facility

- specific multipathway assessments being undertak en. **45. C**  **omment:** Commenter 0218 maintain ed that the EPA must incorporate a m argin of s afety (or uncertainty) f

actor to account for a history of exposure or exposure to additional emissions beyond each source category under review. The commenter stated that the EPA should account for the history

of exposure to toxic air pollution and for ongoing exposure to the source category ’s toxic air emissions combined with other HAP emissions from multiple sources, by applying additional safety factors in its acceptability determination

. The commenter suggested that the EPA apply an uncertainty factor based on the number of other facilitie s contributing HAP exposure risks ; thus, the total risk that is acceptable for the most
- exposed person must be less for each of the source categories to which the person is exposed. According to the commenter, the EPA has full authority under section 112 (f )(2) to address the full public health risk faced b y the affected individuals and community before deciding what limit to set for this source category

. The commenter explained that the EPA is required to decide whether to set a standard for a given source category if the cancer risk from that specific source cat egory is 1

- in

- 1 million or more, and if that source category ’s emissions are between 1

- in

- 1 million and the presumptive limit on acceptabili ty (currently 100

- in

- 1 million); and if that source category is contributing risk along with numerous other source categories, then EPA has the authority under section 112 (f)(2) to decide both that the total, cumulative risk is unacceptable, and that the specific risk contributed b y the source category is unaccept able. The commenter cited the EPA’s explanation in the Coke Ovens Rule , where the EPA addressed and set a limit to account for increased community exposure at the final stage of its “ ample margin of safety” determination. **Response :**  Based on Response from Wood Furniture. The EPA’s anal ys is did not ignore feasible assessments of cumulative risk. The EPA conducted an assessment of the cumulative cancer risks from emitted carcinogens and the cumulative noncancer hazard indices from all emitted non

- carcinogens affecting the same target organ s ys tem for both the source category emissions and the facility

- w ide emissions . This assessment exclud ed background contributions. While the incorporation of additional background concentrations from the environment in our

70 See U.S. EPA’s Residual Risk Assessment for the Pulp & Paper Source Category , in the d ocket for the subpart S rulemaking

.57

risk assessments (including those from mobile sources and other industrial and area sources) could be technically

challenging, they

are neither mandated nor barred from our anal ys is. In developing the decision framework in the Benzene NESHAP currently used for making residual risk decisions, EPA rejected approaches that would have mandated consideration of background levels of pollution in assessing the acceptability of risk, concluding that “ comparison of acceptable risk should not be associated with levels in polluted urban air‘‘ (54 FR 38044, 38061, September 14, 1989). Background levels of certain HAPs can be relativel y high, perhaps even above a level that might be considered “safe.” Background levels (including natural background) are not barred from EPA‘s AMOS analy sis, but EPA may consider them, as appropriate and as available, along with other factors, such as cost and technical feasibility , in the second step of its section 112(f) anal ys is. In this analy sis , background levels were not considered because it is technicall y infeasible. This is because , for this source category , technical limitations in the data set for this source category make it insufficient to create a reliable analy sis

. **46. Comment:**  Commenter 0218 state d that , by focusing on cost, the EPA fail ed to set a residual risk standard that provide d the requisite “ample margin of safety t o protect public health,” pursuant to CAA section 112 (f)(2). The commenter argue d that the “ ample margin ” determination assumes that EPA has already reduced risk to an “ acceptable ” level , and requires EPA to consider additional reductions to provide an “ ample margin , ” not just the bare minimum amount of protection for public health , including can cer and non

- cancer risks

. However, according to the commenter, the EPA ’s “ ample margin ” analy sis did not center on health protection but on cost. The commenter noted that the EPA failed to consider or determine whether its proposed rule provide d the maximum feasible protection against health risks for the greatest number of people , and that the EPA included no discussion or anal ys is regarding what the maximum feasible protection would be, or how many people could be protected from a greater level of risk. T he commenter asserted that , by setting the standard without finding or explaining how its proposal provide d more than bare minimum protection for public health , the EPA rendered the phrase “ ample margin of safety to protect public health ” superfluous and violate d section 112(f)(2). The commenter observed that the EPA ’s proposal still expose d people to a cancer risk significantl y higher than the 1

- in

- 1 million target of section 112 (f)(2), to acute health risk that is 20 times the threshold (HQ of 30), and to both chronic and multipathway risks. The commenter asserted that the EPA ha d failed to justify this or explain why

there is an “ ample margin of safety” under its proposed rule. The commenter stated that the uncertainty that has likely le d the EPA to underestimate health risk in the first place requires a greater margin of protection at this final rulemaking stage

. The commenter pointed to recent research providing new information on why risks from air pollution are likely

to be undercontrolled and underestimated

. The commenter asked that the EPA conside r what is needed, particularl y cumulative impacts, to provide an “ ample margin of safety” to protect the most exposed person from each ty pe of health risk , as well as the cumulative burden, or combination of health risks

–cancer, chronic non

- cancer, acute, and multipathway

. The commenter listed factors that should be58

considered in order to provide an “ ample margin of safety”: cumulative impacts, facility

- wide risk numbers, children’s health, multiple source exposure, and EJ factors

. The commenter state d that the EPA may not lawfully

consider cost in deciding what is the “ample margin of safety to protect public health,” rather there is onl y an authorization to consider cost in determining wheth er additional standards are needed to prevent environmental harm. The commenter state d that , although the D.C. Circuit Court previously allowed the A gency to consider cost in the HON decision, that case was wrongl y decided , and EPA should not rely on it as justification to evade the statute. The commenter note d that in section 112 (f)(2), the clause “taking into consideration costs, energy , safety, and other relevant factors” onl y modifies the environmental effect prong of EPA ’s duty , and does not apply to the health prong of the EPA’s statutory

duty . The commenter further note d that the statement in section 112(f)(2)(B) is not a clear statement authorizing the consideration of cost and it does not enshrine EPA ’s prior Benzene rule analy sis forever in all in stances, rather the purpose of citing the Benzene Rule was not to enshrine that rule or its statutory interpretations for all time, but to prevent back

- sliding b y the agency

after the 1990 Amendments. The commenter conclude d that the statute prohibits the agency from considering cost in its “ample margin” anal ys is. **Response :**  Based on Response from Wood Furniture As stated in the Benzene NESHAP, in determining the need for residual risk standards in the risk acceptability determination, we strive to limit to no higher than approximately 1

- in

- 10 thousand (100

- in

- 1 million) the estimated risk that a person living near a plant would have if he or she were exposed to the maximum pollutant concentrations for 70 years and, in the ample margin of safety determinat ion, to protect the greatest number of persons possible to an individual lifetime risk level of no higher than approximately

1

- in

- 1 million. However, in determining whether to require additional standards, these levels are not considered rigid lines, and w e weigh the cancer risk values with a series of other health measures and factors, including estimates of uncertainty, in both the risk acceptability

and the ample margin of safety determinations. Relative to the commenter ’ s concerns about providing protec tion to the “ greatest number of people, ” we look closely at the populations impacted at greater than 1

- in

- 1 million risk ( s ee Chapter 3 and Table 3.2.1 of the f inal risk a ssessment document). If we determine that the risk is unacceptable, we must impose ad ditional requirements to reduce emissions without consideration of cost. However, as part of our determination of whether standards protect public health with an ample margin of safety , we do not look solely

at whether technology

is feasible, (as urged by the commenter) but also consider cost, as statutorily required. Our consideration of cost under section 112(f) is consistent with the D.C. Circuit Court ’s decision in the HON case. NRDC v. EPA , 529 F.3d 1077, 1083 (D.C. Cir. 2008) (“As explained above, su bsection 112(f)(2)(B) expressl y incorporates EPA's interpretation of the Clean Air Act from the Benzene standard, complete with a citation to the Federal Register. In that rulemaking, EPA set its standard for benzene ‘ at a level that provides ‘an ample mar gin of safety ’ in consideration of all health information ... as well as other relevant factors including costs and economic impacts, technological feasibility , and other factors relevant to each particular decision. ’ 54 Fed.Reg. at 38,045 (emphasis added) . EPA considered cost in Benzene, and subsection 112(f)(2)(B) makes clear that nothing in the amended version of the Clean Air Act shall ‘ affect[ ] ’ the agency's interpretation of the statute from that rulemaking.”) We are also required to consider cost as part of technology review under section 112(d)(6), which we are required to perform periodically

.59

Regarding the consideration of cumulative impacts and facility- wide impacts, the development of facility

- wide risk estimates provides additional information about the potential cumulative risks in the vicinity of the RTR sources, as one means of informing potential risk

based decisions about the RTR source category or categories in question. We agree with the commenter on the need for the need for their consid eration in the assessment when it is possible. Lo gically , the facility- wide assessment will provide the best estimate of cumulative HAP impacts , since it will include HAP impacts from other sources on the site when emission s data are available. In this cir cumstance , the data w ere available from our ICR and used in the assessment. B ecause these risk estimates were derived from facility

- wide emissions estimates which have not generall y been subjected to the same level of engineering review as the source categ ory emission estimates, they may be less certain than our risk e stimates for the source category in question

. While we recognize that fact , the se risk estimates remain important for providing context, as long as their uncertainty is taken into consideratio n in the process. Notably , for the RTR we are finalizing, our evaluation of facility

- wide risk did not change our decisions about acceptability and ample margin of safety for this category

. **47. Comment:**  Commenter 0218 state d that the EPA failed to provide a determination of the environmental effects from this source category and may not rationally

or lawfully

assume there is no potential for environmental effects based on the health assessment. The commenter expresse d concern that the EPA stated that there is “ no potential for adverse environmental effect” from this source category and that the EPA based its environmental determination on its human health assessment. The commenter disagreed with the EPA’s level of assessment for environmental effects and, referencing court findings, stated that the residual risk review is the proper time for EPA to consider these effects, including the need to engage in Endangered Species Act ( E S A ) consultation under 16 U.S.C. 1536

. However, the commenter noted that E PA has not even assessed whether there are any federally listed species with habitat near the facilities in this source category

. The commenter objected to the EPA’s use of health risk numbers, stating that these numbers are above the threshold and the EPA ’s reference doses appl y to rodents, but are not necessarily

sufficient for protecting more sensitive wildlife or other environmental receptors. The commenter noted that the SAB has stated: “The assumption that ecological receptors will be protected if hum an health is protected is incorrect.” The commenter observed that risks include inhalation risk for wildlife and persistent or bioaccumulative chemicals in the environment. The commenter asked that the EPA perform an appropriate ecological assessment. **Re sponse**  **:** We disagree with the commenter that we do not provide a rationale for this judgment. Section 2.5 of the risk assessment report 71 states that : Human health dose

- response reference values are generall y derived from studies conducted on laboratory

ani mals (such as rodents) and developed with the inclusions of uncertainty factors that could be as high as 3000. As a result, these human reference values are often significantly lower than the level expected to cause an adverse effect in an exposed rodent. It should be noted that there is a scarcity of data on the direct

71 See U.S. EPA’s Residual Risk Assessment for the Pulp & Paper Source Categor y , in the docket for the subpart S rulemaking.60

atmospheric impact of these HAP on other receptors, such as plants, birds, and wildlife. Thus, if the maximum inhalation hazard in an ecosy stem is below the level of concern for humans ( i.e. , is below the human health reference value , which is itself a lower reference value than would be expected for an ecologic effect), we have generall y concluded that mammalian receptors should be at no risk of adverse effects due to inhalation exposures from non PB

- HAP, and have assurance that other ecological receptors are also not at any significant risk f

rom direct atmospheric impact

. With respect to the potential for ecological risk associated with PB

- HAP, we note that our multipathway

anal ys is indicat ed that all chronic non

- cancer HQ values were less than 1 , using human health reference values. Thus, we believe that it is unlikely that adverse environmental effects would occur considerin g actual emissions of the HAPs in question

. With respect to the i ssue of ecological risk separate from risk that can be ascribed or compared to human impact risk and to endangered species findings... **48. Comment**  : C ommenter 0171 applauded EPA’s recognition of the need for additional requirements d

ue to advancements in control technologies. The commenter urged the A gency to consider others that may

be identified during the rulemaking process as well. However, because of the adverse health effects associated with exposure to the substances emitted by pulp and paper facilities, the commenter was concerned about some of the risks that EPA has identified as remaining after the implementation of MACT and its decision to not reduce them. For example, EPA is not proposing to require additional measures to a ddress an acute noncancer HQ of 20 (where 1 is the threshold EPA considers acceptable). The commenter recommended that EPA reexamine these findings and take any necessary steps to ensure that the public is protected in accordance with the intent of the CAA

. **Response :**  As noted above, the acute risk screen is a worst

- case scenario. It assumes worst
- case meteorology , peak emissions for all emission points occurring concurrentl y, and an individual being located at the site of maxi mum concentration for an hour . Considering these factors , the EPA does not believe that in all RTR reviews, HQ values must be less than or equal to 1 in order for source category risk to be considered acceptable. Rather, the EPA finds that acute risks must be judged on a case b y case basis in the context of all the available health evidence and risk analy ses, including the results of the chronic , non - cancer and cancer risk anal ys es. Onl y 9 facilities of the 174 modeled had an HQ > 1, with onl y 1 facility having an HQ > 10. An anal ys is of th is site indicates that the HQ was actuall y 15, which was rounded to 20, and that there was no exceedance of an AEGL (HQ (AEGL

- 1) = 0.4). Also, the maximum exposure locations are located by the river along unpopulated forested areas. The location where people actually reside has a maximum HQ = 2. Based upon the conservative nature of the acute screen in conjunction with the chronic risks, EPA finds the risk to be acceptable for this source category
. Additional information regarding the finding of a cceptable risk can be found in section IV .B.1 of the preamble to the proposed rule (76 FR 81344)

. 

### 4. **5 Demographics**  **49. Comment:**  Two commenters (0161 and 0171) supported EPA conducting demographic anal ys is used in this pulp and paper RTR for each individual facility , rather than using its prior61

approach of combined generic demographic anal yses for EJ concerns. Commenter 0161.1 supported EPA’s approach to review the impact of the proposed regulation on minority and low

income populations. The commenter suggested the following changes to further improve the assessment: providing justification for the selection of the 1.25 threshold and ensuring that EPA’s Office of Environmental Justice participate s in future evaluations of proposed rules. Commenter 0 171 specifically recommended that the rule writers work with EPA’s Office of Environmental Justice to develop criteria and specific guidance on how to interpret and appl y the outcome of EJ analy ses in the rulemaking process. **Response :**  To the extent that data are available, the A genc y uses facility

- specific information to supplement the national

- scale analy sis. This additional information provides a more complete picture of the community surrounding the largest

- emitting sources and helps identify whether the low

- income and minority populations that live near the sources in this source category

are clustered around several facilities or are more equally distributed. We agree with the commenter , and we do work closely with the EPA ’s Office of Environmental Justice , as well as other offices across the A gency , to develop criteria and specific guidance on how to interpret and appl y the outcome of these types of analyses in the rulemaking process. To ensure that our actions comport with our statutory authorities and requirements, we work with our Office of General Counsel (OGC) and Office of Enforcement and Compliance Assurance (OECA). **50. C**  **omment:** Commenter 0218 stated that the s ocioeconomic disparity in health risk from the p ulp and p ap er source category makes the risk the EPA has found unacceptable, and the EPA must finalize a rule that is consistent with the principle of EJ

. The commenter asserts that the EPA’s anal ys is has not fully assessed EJ impacts. Commenter 0218 proposed that th e EPA take action to provide EJ because it has found disproportionate impacts based on race, because the African

- American community is over

represented in the category of people exposed to higher risk from this source category , compared to its national pop ulation. Since the risk from the p ulp and p aper source category has disproportionate effects in these communities, the commenter suggested additional monitoring and stronger enforcement provisions to prevent emission spikes, malfunctions

. and other violati ons would help provide EJ

. The commenter stated that the EPA did not complete a full EJ analy sis for this source category and should do so now to ensure that it appropriatel y assesses the risk to public health under section 112 (f)(2) and satisfies the obligations under EO 12898, as well as EPA ’s own policy commitment to consider EJ in rulemaking. After providing suggestions for improvements to the EPA’s EJ assessment, the commenter recommended that the EPA also fully incorporate the improved EJ assessment into the policy decision it chooses in the final rule, by recognizing that it is not fair or acceptable for particular individuals or communities to have this ty pe of disproportionate impact. **Response :**  Under EO 12898 , EPA is direct ed to the greatest extent practicable and permitted by

law, to make EJ part of their mission by identifying and addressing, as appropriate,62

disproportionately

high and adverse human health or environmental effe cts of their programs, policies and activ ities on minority populations and low

- income populations in the United States. Consistent with EO 12898 and the Presidential Memorandum that accompanies it, the EPA’s EJ policies promote EJ by

focusing attention and A gency efforts on addressing the types o f environmental harms and risks that are prevalent among minority, low

- income and indigenous populations. EO 12898 and the A gency ’s EJ policies do not mandate particular outcomes from an action, but they

demand that decisions involving the action be inform ed by a consideration of EJ issues. With respect to this rule, the EPA found the overall level of risk from the pulp and paper source category to be acceptable and to provide an ample margin of safety for all populations in close proximity

to these source s , including minority and low

- income populations

. Consequently , EPA did no further tightening of the standard. However, EPA is requiring 5

- ye ar repeat testing and eliminating the SSM exemption to ensure continuous compliance with the standards. Furthermore , repeat testing will provide incentive for facilities to maintain their control sy stems and make periodic adjustments to ensure peak performance, thereb y reducing emissions and the potential for periodic episodes of acute risk. Eliminating the SSM exempti on will provide an incentive for facilities to minimize emissions during periods of SSM. By eliminating SSM exemptions and limiting the affirmative defense provisions to only malfunctions that result in a violation to a standard and cannot be connected to poor maintenance or mismanagement, poor work practices that may

have previousl y remained undetected should be apparent to those responsible for oversight and implementation. Additionally , both the monitoring and reporting sections of the rule have been strengthened through the use of the Electronic Reporting Tool (ERT) and the Compliance Emission Data Reporting Interface (CEDRI). Both ERT and CEDRI will provide the public with contemporary , easily searchabl e electronic information about performance testing in a public database. **51. Comment:**  Two commenters (0218 and 0171) appreciate d that the EPA recognized the need to look at population data, including on the socioeconomic impact, in order to consider the actual people affected b y pollution from the pulp and paper source category , to assess the community

impacts in context, and to consider EJ as part of this rulemaking . One commenter (0218) stated that , i n addition to looking at the demographic census data , the EPA must assess the starting point or baseline “ overall health ” status of the affected individuals and communities , using the best available data at a local and national level, including the baseline cancer levels. The commenter suggested that the EPA should follow the recommendations of its own interim guidance and include in its analy sis an assessment of the percent of the population with limited English proficiency , infant mortality , and low birth

- weight births. Two commenters (0218 and 0171) supported the EPA ’s decision to assess the demographics wi thin 5 kilometers (or 3 miles) of affected sources. One commenter (0218) suggested that the EPA should also evaluate impact within a broader area , where it has information that there is potential for dispersion beyond the 3

- mile radius. Three commenters (0 161.1, 0218, and 0171) asked that the poverty statistics be updated to include 2010 c ensus63

d ata, rather than relying on older information. The number of people in poverty in 2010 is the largest number in the 52 years for which poverty estimates have been p ublished. 72 **Response :**  As noted in the response to comments above, per the EPA’s interim guidance on EJ and the Action Development Process, the A gency is encouraging rule writers and policy makers to look at the whole range of factors that impact communiti es and population groups when crafting rules. In regards to how the A gency conducts its anal ys is , the EPA is continuing to discuss and pilot approaches that are consistent with the A gency ’s responsibilities regarding EJ as outlined in EO 12898. In determin ing the need for residual risk, the EPA strives to limit to no higher than 1 in 10 thousand (100 in 1 million) the estimated cancer risk for persons living near a plant if exposure to the maximum pollutant concentration for 70 ye ars and to protect the greatest number of persons to a individual lifetime risk of no higher than 1 in 1 million. Considerations are made for all people regardless of racial or socioeconomic status. In response to the comment on the need to assess impacts beyond a 3

- mile radius, the EPA agrees that it is helpful sometimes to analyze a larger potential impact area. The EPA ty picall y uses a radius of 50 kilometers (31 miles) for the purpose of residual risk anal ys es. **52. Comment:**  Commenter 0218 ask ed that , as part of providing suf ficient information to affected local communities, the EPA should publish a plain

- language statement of the health risks and benefits from EPA ’s final action, and in future rule proposals. The commenter state d that , although it provides the MIR and chronic and risk numbers, these are not easily understandable b y the general public. The commenter ask ed for expanded discussion of health disorders or other adverse effects, stating that , without a full discussion of health impacts and risks, it is difficult for the public to provide meaningful comment on the impact this proposal will have on their lives, which is an EJ issue. The commenter also asked that the EPA provide a statement and anal ys is in this residual risk rulemaking (and all others) on the real world impacts of EPA ’s rulemaking, so that the public has a clear understanding of what the risk is, and precisely what types of harm to public health EPA is determining are “acceptable” and “unacceptable.” The commenter believes that this is needed to inform E PA ’s and the public ’s consideration of what level of risk is acceptable or unacceptable, and what standard is required to provide an ample margin of safety. **Response :**  The EPA agrees that providing sufficient information is important , so affected communit ies have a meaningful opportunity to participate in EPA rulemakings. It is the EPA ’ s goal to use plain language in all rule preambles and risk assessments so that they are understandable to the general public. As future preambles, fact sheets, and assessments are written, we welcome input on how the health discussion should be expanded and how the risk numbers and critical concepts like “ample margin of safety” can be set in a context that is easier to understand. For this rule, there is additional health information contained in the docket , 73 and EPA has provided the contact information (in the rule preamble) for the technical expert s who can be contacted for assistance in understanding this rule and the risk modeling that was conducted

.
72 U

. S

. Census 2011. Income, Poverty, and Health Insurance Coverage in the United States: 2010 . Available online at : http://www.census.gov/prod/2011pubs/p60

- 239.pdf

.64

**53. Comment:**  Two c ommenter s ( 0162 and 0196) objected to EPA’s accounting for EJ in developing the proposed rule, i.e. , whether “there is an overrepresentation of minority , low income, or indigenous populations near the sources such that they may face disproportionate exposure from pollutants that could be mitigated by this rulemaking” (76 FR 81353). The commenter s noted EPA’s conclusion that the rule will not have such effects because “it increases the level of environmental protection for all affected populations without having an y disproportionately

high and adverse human health or environmental effects on any population, including an y minority, low income, or indigenous populations.” However, the commenter s argued that EPA is without authority to factor such EJ considerati ons into this rule, because the term “public health” cannot reasonabl y be interpreted to include consideration of EJ in the context of section 112(f). According to the commenter s , section 112(f)(2)(A) expressly instructs EPA to impose additional emissions controls if needed to provide an ample margin of safety “to protect public health.” The commenter s noted that the term “public health” is not defined in section 112 or in EPA’s Part 63 regulations. The c ommenter s ( 0162 and 0196) noted that, for EPA’s NAAQS program, the Supreme Court has observed that the “primary definition of the term” should be applied, i.e. , that public health means “the health of the public.” Whitman v. American Trucking Associations, Inc. , 531 U.S. 457, 465 (2001). According to the commenter s , this conclusion emphasize d that the scope of the term “public health” should be dictated b y the meaning of the word “public.” To illustrate, the commenter s cited Webster’s Dictionary , which defines the adjective “public” to mean “of, relating to, or affecting all of the people or the whole area of a nation or state” and “of or relating to people in general.” The commenter s pointed out that these definitions emphasize that the word “public” should be construed expansively as describing the people as a whole, and not particular demographic segments. The commenter s asserted that EPA’s established approach to assessing potential impacts on public health under the NAAQS program is consistent with this meaning. According to the commenter s , EPA reasonably interprets the term “public health” to include consideration not only of potential impacts to the population as a whole, but also to sensitive subpopulations

– recognizing that the objective is to protect the group rather than any particular individual in the group ( e.g. , 71 FR 61144, 61145 fn. 2 (Oct. 17, 2006)). The commenter s noted that sensitive subpopulations are identified according to their particular health

- based sensitivities ( e.g. , asthmatics) rather than demographic classifications unrelated to p articular health

- based sensitivities ( e.g. , population without a high school diploma). The commenter s further argued that, with this backdrop, it would not be reasonable to construe the term “public health” as used in section 112(f) as allowing considerati on of demographic classifications that bear no relationship to the potential health effects presented b y the HAPs at issue for the given source category or subcategory . According to the commenter s , EPA’s proposal would unreasonabl y inject racial, ethnic, economic, and other policy considerations into a program designed to provide protection for the public at large. To illustrate, the commenter s stated that, if EPA were to suggest that the population without a high school diploma should receive extra scruti ny , it raises the question why EPA should not afford the same

73 See U.S. EPA’s Residual Risk Assessment for the Pulp & Paper Source Category among other RTR

- related documents, in the docket for the subpart S rulemaking.65

scrutiny to other reasonably

definable educational groups, such as those with a high school diploma, those with college degrees, and those with advanced degrees. According to the commenter s , the re is simply no principled way

to identify

and define those groups that should receive extra scrutin y from those that do not. To conclude, the commenter s argued that injecting EJ considerations into section 112(f) standard setting would inappropriately cau se arbitrary policy and political considerations to trump objective scientific anal ys is, which would be patently unreasonable and, as such, would not be a supportable interpretation of section 112(f). **Response:** As described above, the A gency is directed by

EO 12898 to make EJ part of our mission. The EPA disagrees that the term “public health” cannot include consideration of EJ

. The EPA defines EJ to mean fair treatment and meaningful involvement of all people, and this definition represents a commitment to ensuring that EPA works to improve conditions affecting the public health of all Americans so that everyone has access to clean water, clean air and healthy communities. As stated in the Benzene NESHAP, in determining the need for residual risk standards, we strive to limit to no higher than approximately 1

- in

- 10 thousand (100 in a million) the estimated cancer risk that a person living near a plant would have if he or she were exposed to the maximum pollutant concentrations for 70 ye ars and, in the amp le margin of safety decision, to protect the greatest number of persons possible to an individual lifetime risk level of no higher than approximately

1

- in

- 1 million. These considerations are made for all people , regardless of racial or socioeconomic status . However, in determining whether to require additional standards under section 112(f), these levels are not considered rigid lines, and we weigh the cancer risk values with a series of other health measures and factors in both the decision regarding risk acceptability

and in the ample margin of safety determination. We also consider cost of controls in the ample margin of safety determination. While we anal yz ed the demographic makeup of the at
- risk populations surrounding the facilities within the source c ategory addressed b y this rulemaking, we ultimately concluded that the risks were acceptable for all population groups and protected public health with an ample margin of safety . Thus, while the results of our demographic anal ys es served to provide information about the demographic makeup of the populations exposed to the source category, the EPA did not base its decision solely on these anal ys es.66 

## 5. **Te chnology Review**  **54. Comment:**  Commenter 0218 stated that the EPA did not consider the full range of control options available and arbitrarily relied on unsupported assumptions for the options it did consider. The commenter stated that the EPA ’s analy sis of available controls failed to include practices, processes and technologies that have achieved great er emission reductions and dismissed options with little or no anal ys is or support. The commenter recommended that the EPA should have researched vendor literature and discussed options with vendors regarding newer technologies and improvements to old technologies that make them mo re cost
- effective and efficient, and could have consulted with the pollution control technology industry , including the Institute of Clean Air Companies (I CAC), and other national, state and local jurisdictions‘ air pollution control agencies. The commenter stated that EPA ’s standards do not reflect the actual emission levels achieved b y the relevant best performers. The commenter recommended that the EPA set revised standards that meet the test under section 112 (d)(2) and (d)(3), by setting a MACT floor that does reflect the emission levels achieved b y the relevant best performers (those with the lowest emissions) and beyond

- the

- floor standards reflecting the maximum achievable degree of reduction in each of the hazardous air pollutants that the category emits. **Response :**  As promulgated, the p ulp and p aper MACT (subpart S) standards include emissions standards for pulping s ys tem vents, kraft pulping process condensate s, and bleaching sy stem vents. The commenter is incorrect in thei r statement that the fu ll range of control s was not considered in the technology review of s ubpart S

. C ontrary to the consultations which the commentator suggests we avoided, EPA performed a thorough evaluation of new pollution control technology

by analyz ing nearl y 100 entries in the Reasonable Available Control Technology

/Best Available Control Technology /L owest Achievable Emission Rate ( RACT/BACT/ LAER) Clearinghouse (RBL C) database 74 for pulp and paper sources and reviewed the European Commission’s December 2010 reference document 75 on the best available control techniques in the pulp and paper industry

. We also conducted a thorough review of control techn ology information from the 2011 Part Isurvey responses , which would be expected to include information on the same practices, processes, and technologies that pollution control vendors and state and local air pollution control agencies would have provided. Consequently , w e contend that we have met the CAA section 112 (d)(6) requirement to review the latest practices, processes and control technologies being used and available for use in subpart S sources. Notwithstanding the fact that we did not identify any new technologies in our review, the commenter indicates that had we identified new technologie s , we would have been obligated to conduct another section 112 (d)(2) and (d)(3 ) MACT floor setting exercise. As we have noted previously , we do not believe that we are obligated to do a section 112 (d)(2) and (d)(3) anal ys is

74 See memorandum from T. Holloway and C. Gooden, RTI, to J. Bradfield and B. Schrock, EPA, titled Summary of RBLC and Other Findings to Support Section 112(d)(6) Technology Review for Pulp and Paper NESHAP , September 30, 2011, in the docket for the subpart S rulemaking. 75 See European Commission document, titled Integrated Pollution Prevention and Control (IPPC): Reference Document on Best Available Techniques in the Pulp and Paper Industry , Draft April 2010.67

under a section 112 (d)(6) techno logy review requiring a reanal ys is or recalculation of MACT floors. See proposed National Emission Standards for Coke Oven Batteries (69 FR 48388, 48351 (August 9, 2004)). Instead, we interpret section 112(d)(6) as essentiall y requiring us to consider deve lopments in pollution control in the industry (‘‘taking into account developments in practices, processes, and control technologies’’), and assessing the costs of potentially stricter standards reflecting those developments. We read this provision as provi ding the EPA with substantial latitude in weighing these factors and arriving at an appropriate balance in considering revisions to our standards. This discretion also provides us with substantial flexibility in choosing how to apply modified standards, if necessary , to the affected industry

. **55. Comment:**  Commenter 0218 asserted that n ear - zero air

- discharge pulp and paper facilities exist and are common in Europe

. (T he commenter cited two European Commission reference documents on best available techniques in the pulp and paper industry

. ) The commenter mentioned a process that uses modified cooking plus ox ygen delignification, and uses only ozone and peroxide to bleach, which results in zero discharge of chlorine dioxide (ClO 2 ) and chlorinated organic substances measured as adsorbable organic halides (AOX )

. The commenter argued that , while EPA notes that some facilities in the U.S. use totally chlorine free ( TCF ) processes , it fails to rationally explain why

TCF processes were not considered the MACT floor fo r pulp and paper facilities. Further, the commenter stated, the technology is now mature, with 25 percent of the European paper suppl y made of TCF paper, and represents the least toxic alternative, and the European Union ( EU ) requires near

- zero discharge p rocesses

–ECF bleaching with low AOX , or TCF bleaching

– as Best Available Technology

. The commenter stated that the EPA ’s failure to require modified cooking, oxygen delignification, and ozone and peroxide bleaching is arbitrary

and capricious under sectio n 112(d)(6). **Response :**  The European Commission reports that ozone and peroxide bleaching can be used when modified cooking and ox ygen delignification are used as bleaching pretreatments, and th ese processing steps resul t in zero discharge of Cl 2 and AOX compounds. The Commission does not, however, report the wood species and type used in this process or either the source or the end use of the pulp made with this process. When virgin fiber is pulped, l ignin content (chemical structure and amount) varies significantly based on wood type and species , and th e aforementioned process is not applicable to all species of wood. The ozone and peroxide bleaching processes are lignin

- chemical

- structure
- specific and do not react with all structures and result in a final product with lower brightness . T he process w ould be appropriate if the final product was toilet paper, but would not be appropriate for printing and writing grades. These grades require complete lignin removal

. When recycled bleached fiber is pu lped, lignin has ty picall y already been removed, and ozone/peroxide bleaching should be sufficient to brighten a recycled pulp

—a pulp that was initially bleached with chlorinated compounds. Extended cooking and ox ygen delignification would be required for virgin fibers that undergo an ozone - and peroxide

- only

bleaching process, which would result in lower pulp yields and, thus, higher raw material costs. It would also generate higher amounts of black liquor solids that require processing in the recovery fur nace . In older facilities such as those in the U.S. (as compared to the newer ones in Europe) , recovery furnaces are commonly running at capacity and could not support the burning of additional solids. Where capacity is available, burning higher amounts of black liquor solids would result in additional negative secondary emission impacts (higher carbon monoxide [CO], nitrogen oxides [NO X ], sulfur dioxide [SO 2 ], and particulate matter [PM]) subsequent to such a change in bleaching technology

.68

The EPA investi gated the use of TCF and ECF processing during the technology review. In the same document to which the commenter refers, the European C ommission reports that effluent from the TCF process is not significantl y different from the ECF process , and it notes that the use of a TCF process requires the removal of metals in pulps using chelation, which results in the use of non

- biodegradable, potentially hazardous metal compounds that must be landfilled. The TCF processes currentl y used in the U

. S

. are used with secondary or mechanical pulps, not virgin kraft pulps. The tree species used to produce virgin kraft pulp in the U

. S

. do not efficientl y respond to ozone and peroxide bleaching without the use of ClO 2 to reach consumer

required f inal product brightnesses. Ox ygen Delignification (O2Delig) is encouraged by the current s ubpart S standards because bleaching requirements are reduced through the use of O2Delig and, therefore, the pollution control requirements (99+ percent control) and costs are red uced. The costs for O2Delig were given extensive “beyond the floor ” attention in the evaluations for the original cluster rule , which combined the s ubpart S MACT rules with new pulp and paper effluent guidelines un der the Clean Water Act (CWA). Specificall y, O2Delig was evaluated because of its positive impact on wast ewater treatment requirements. However, the beyond

- the

- floor evaluation did not justify requiring O2Delig as part of the C luster R ule. We are onl y conducting a review of the s ubpart S MACT (air) rule promulgated under C luster Rule, so a new O2Delig anal ys is was not deemed appropriate. Similarl y, TCF was evaluated under the C luster R ule for its positive impact on wastewater treatment and as a beyond the floor technology , but was not found to be j ustified. As with O2Delig, we set up the standards in the original rule to encourage TCF bleaching through the use of targeted exemptions, which remain in place following this technology

review. AOX was only

addressed in the water rules promulgated under the C luster Rule and was reduced through the use of limitations on chlorinated bleaching, which also remain in place following our review of the bleaching s ys tem MACT requirements

. 76 , 77 As the commenter stated, only about 25 percent of the European paper supply is made of TCF paper, showing that the processing is not applicable to all papermaking processes. The statement that the EU requires near zero

- discharge processes is no t relevant to this action, as s ubpart S is an air rule, no t a water rule. The U

. S

. required that the industry convert from Cl 2 bleaching to ECF or T CF bleaching with the original C luster R ule, and the explanation as to why EPA did not require modified cooking, O2Delig , and ozone and peroxide was discussed in the original subpart S rule (63 FR 18504) and is not applicable to many processes in the U

. S

. T herefore , the purported “failure to require modified cooking, oxygen delignification, and ozone and peroxide bleaching ” (according to the commenter) is not supported by the record and should not be considered arbitrary and capricious under section 112(d)(6). 

### 5.1 **EPA’s Authority under CAA Section 112(d)(6) 56.**  **Comment:** Commenter 0218 state d that section 112 (d)(6) serves as an on - going ratchet to continually

require the EPA to update standards to keep pace with new technology in order to

76 See memorandum from K. Spence and J. Bradfield, EPA, to Docket EPA

- HQ

- OAR

- 2007

- 0544 , titled Summary of Pulp Bleaching Technology Review , November 22, 2011, in the docket for the subpart S rulemaking. 77 See Pulp, Paper and Paperboard Industry

– Background Information for Promulgated Air Emission Standards Final EIS; EPA

- 453/R

- 93

- 050b.69

decrease emissions. The commenter observed that section 112 (d)(6) requires EPA to revise its MACT “ floor” in accordance with section 112 (d)(2)

- (3) and (6), to ensure that the standard s continue to satisfy

the requirements of section 112(d)(2)

- (3) , particularl y where there are
“ developments ” in technology , practices, and processes demonstrating that greater emissions reductions are “ achievable ” and sources have achieved significantl y lo wer level of emissions “ in practice ” than the curre nt MACT standards. The commenter found the EPA’s narrow reading of the term “developments” as unlawful and arbitrary. The commenter asserted that EPA failed to conduct a comprehensive evaluation of advance s in control technologies, practices, and processes that may

have achieved greater emission reductions than at the time of the original standards. The commenter recommended that the EPA look to jurisdictions with the most stringent standards for HAP emissi ons to gather data from facilities and information about control sy stems that are attaining the highest control efficiencies , because these s tronger standards and permit limits for a similar source category are evidence that lower emission levels are being achieved and can be achieved, and are thus “ developments ” that EPA must consider under section 112(d)(6). The commenter stated that c ontrol technology is only one factor in determining emissions levels of the best performing similar sources, according to the commenter, and other factors, such as fuel inputs and raw materials, must also be part of the best performing similar source determinatio n. The commenter assert ed that , f or the p ulp and paper source category , significant evidence demonstrates that, due to improvements in technology , many sources have “ achieved ” a level of “ actual ” HAP emissions that is not only below the existing MACT standard, but also below the standards proposed by EPA in the new rule. According to the commenter, EPA itself notes that― [f]acilities ’ actual emissions may also be significantly

lower than MACT

- allowable emissions for other reasons such as state requirements, better performance of control devices or reduced production

. 78 The EPA’ s anal ys is of its emissions inventory for pulp and paper facilities indicates that th e amount of emissions that are “ allowable ” under the existing MACT standard ex ceed estimated (what EPA calls “ actual ” ) emissions and may

be almost three times the “ actual ” emissions. 79 Inparticular, the reported average actual performance level for percent reduction in kraft pulping process condensates is 95 percent

– fully 1 percentage point higher than EPA ‘s proposed revised standard of 94 percent. The EPA itself concluded that “ there were mills performing better than the 92 percent minimum and that the great majorities [sic] were performing significantl y better. ” 80 The commenter concluded that , under section 112(d)(6), EPA must revise the existing MACT based on these developments and meet the requirements of section 112(d)(2)

- (3), b y setting standards more stringent than what EPA has proposed in this rulemaking ; otherwise, the commenter asserted that EPA ’s CAA section 112(d)(6) review of the existing section 112(d) standards wa s unlawful and incomplete.

78 See 76 FR 81,328, 81,334 (emphasis added). 79 See memorandum from T. Holloway, K. Hanks, C. Gooden, and M. Hakos, RTI, to J. Bradfield and B. Schrock, EPA, titled Inputs to the Pulp and Paper Industry October 2011 Residua l Risk Modeling , Table 6B, November 11, 2011, in the docket for the subpart S rulemaking. 80 See memorandum from J. Bradfield and K. Spence, EPA, to Docket EPA

- HQ

- OAR

- 2007

- 0544 , titled Summary of Clean Condensate Alternative Technology Review , October 23, 2011, in the docket for the subpart S rulemaking

.70

**Response :**  The commenter is mistaken on several groun ds. First, the commenter asserted that “ the EPA recognizes that certain sources have ‘ achieved ’ a level of ‘ actual ’ emissions that is below the level allowed under the existing MACT standards ” and cite d the propose d rule preamble at 7 6 FR 81 334

. This was a qualitative, introductory statement about how NEI and other sources of data typi cally contain estimates of actual emissions that are “ often ” lower than allowable emissions. The statement was not specific to p ulp and p aper facilities or data and , in any event , did not contain any quantitative determination about actual emissions levels. Second, the commenter assert ed that the EPA must use information suggesting that sources are operating at less than allowable emis sions under CAA section 112(d)(6) to revise MACT standards, including recalculating MACT floors under section 112(d)(2)

- (3). The comment er apparentl y is refer ring to the MACT allowable

- to
- actual emissions ratio developed for this rulemaking. The commenter is incorrect in characterizing this ratio as a determination of the level of actual emissions achieved in practice for the source category . The actual

- to
allowable ratio represents the lowest amount of HAP compared to the maximum allowed under the MACT. Th e allowable ratio is used for providing a worst

- case scenario for estimating allowable emissions from the source , considering the compliance margin used by sources to account for variability in emission

. Third, the commenter is incorrect in asserting that the EPA must recalculate MACT floors under CAA section 112(d)(2)

- (3). As explained in prior RTR rulemakings, the EPA does not read section 112(d)(6) as requiring a reanal ys is or recalculation of MACT floors. See proposed National Emission Standards for Coke Oven Batteries (69 FR 48388, 48351 (August 9, 2004)). Instead, we interpret section 112(d)(6) as essentially requiring us to consider developments in pollution control in the industry ( “ taking into account developments in practices, processes, and contro l technologies ” ), and assessing the costs of potentially stricter standards reflecting those developments. We read this provision as providing the EPA with substantial latitude in weighing these factors and arriving at an appropriate balance in considering revisions to our standards. This discretion also provides us with substantial flexibility in choosing how to apply modified standards, if necessary , to the affected industry

. For this rulemaking , an ICR was used to obtain much of the information used in EPA’s technology

review. (We also reviewed nearly 100 entries in the RBLC database 81 for pulp and paper sources and reviewed the European Commission’s December 2010 reference document 82 on the best available control techniques in the pulp and paper indust ry .) Our review was not limited to applicable control technologies. The EPA reviewed other potential developments in practices, processes, and control technologies for the p ulp and paper s ource category and evaluated costs of potentially more stringent standards reflecting any such developments. The EPA believes this review and the revisions finalized in this rulemaking satisfy the EPA’s obligations under CAA section 112(d)(6) for the p ulp and paper source category
.

81 See memorandum from T. Holloway and C. Gooden, RTI, to J. Bradfield and B. Schrock, EPA titled, Summary of RBLC and Other Findings to Support Section 112(d)(6) Technology Review for Pulp and Paper NESHAP , September 30, 2011, in the docket for the subpart S rulemaking. 82 See European Commission document, titled Integrated Pollution Prevention and Control (IPPC): Reference Document on Best Available Techniques in the Pulp and Paper Industry , Draft April 2010

.71

**57. Comment:**  Commenter 0172 did not beli eve that EPA had the legal authority to revise the condensate destruction standards in § 63.446(e)(3), (e)(4) and (e)(5). As described b y the American Forest and Paper Association (AF&PA ) in their comment on the proposed rule , there have been no “developments in practices, processes and control technologies” that would justify a revision of these standards. **Response :**  We disagree with the commenter’s interpretation of our legal authority

. As noted above, we interpret section 112(d)( 6) as requiring us to consider all developments in practices, processes, and control technologies in the industry . When we take into account the
“ developments in practices, processes, and control technologies , ” we interpret that language as providing for E PA to not only to evaluate new control technologies and process improvements but also to evaluate the application of the control technologies that were the basis for the current MACT floor. In that evaluation we examine whether, in the ‘practice’ of applyi ng the MACT standard technology , there have been technological advances. Generall y, we consider whether the MACT floor technology , in practice, is performing better than anticipated in the original MACT floor anal ys is. In deed, we did not find in our evaluation of data received in the ICR conducted prior to proposal that there were significant modifications to the basic kraft pulping process or new technologi es for control of condensates

. In th e proposal, our initial evaluation indicated that kraft condensat e control, using the technologies originall y anticipated h ad improved since promulgation based on the information showing emissions control higher than the 92 percent standard

. Consequently , we proposed to raise the treatment standard from a 92 percent control basis to a 94 percent basis

. 83 In the final rule, however, we are not increasing the treatments standard, for the reasons discussed in the final rule preamble, in a memo prepared for promulgation , 84 and elsewhere in this response - to
- c omments document. 

### 5.2 **Chemical Pulping Standards 58.**  **Comment:** Commenter s 0162 and 0163 agreed with EPA’s determination that “ there have been no advances in emission control measures [for chemical pulping] since the subpart S standard was originally

promulgated in 1998 ” (76 FR 81344). According to commenter 0162 , the technology

currently used by the industry

for subpart S compliance is the same as when the rule was promulgated. C ommenter 0162 stated that these sy stems have the same capabilities as the units that were used b y the “best performing” mills that were the basis for the MACT “floor.” **Response :**  We acknowledge the commenter s ’ support for our conclusion that there have been no advances in emission control measures for chemical pulping vents since the subpart S standard was originally

promulgated. This conclusion was based on our review of the 2011 Part I survey respon ses from the pulp and paper industry , information on pulp and paper control

83 See memorandum from J. Bradfield and K. Spence, EPA, to Docket EPA

- HQ

- OAR

- 2007

- 0544 , titled Summary of Kraft Cond

ensate Control Technology Review , October 23, 2011, in the docket for the subpart S rulemaking. 84 See memorandum from C. Gooden, K. Hanks and T. Holloway, to J. Bradfield and B. Schrock, titled Costs, Environmental, and Energy Impacts for the Promulgated Subpart S Risk and Technology Review , May 11, 2012, in the docket for the subpart S rulemaking.72

techniques in the RBLC , and the EU document on best available techniques in the pulp and paper industry

. 85 **59. Comment:**  Commenter 0218 declared that the EPA did not consider the full range of control options available for kraft pulping

. The commenter pointed to e vidence in the record ( Summary

of Clean Condensate Alternative Technology Review (EPA

- HQ

- OAR

- 2007

- 0544

- 0129) ) as demonstrating that greater reductions of HAPs from the kraft process c ould be achieved b y using clean condensate limits , and that using fresh steam in the chip bin of a continuous digester c ould reduce emissions. The commenter stated that the EPA had failed to consider the development of these techniques since its last MACT rulemaking and had failed to show that its standards reflect the actual emission levels achieved b y the best performers under section 112(d)(3). T he commenter concluded that the EPA must set stronger standards

. **Response :**  The c lean c ondensate alternative (CCA) was implemented to encourage greater reductions at lower regulatory cost than the HVL C control required under MACT. Mill processes and thus HVL C emissions are site

- specific. O ne technology identified in a CCA plan, ( e.g. , flash steam used in a chip bin) may be appropriate in one location, but is not necessaril y available in all facilities

. Generally , our anal ys es of CCA facilities indicated th at the majority implemented unique options available to their specific location. S team generation is an energy

intensive activity . A previous study has shown that a facility

needs to generate 5,000 lb/hr of fresh steam (generall y through the burning of fos sil fuels) for chip bin pre

- steaming, at an annual cost of $184,000

. 86 The use of flash steam (generated from recovered process heat) in the chip bin reduces the need to produce fresh steam and the need to treat the gases. No new fresh steam is created, and the consequent boiler

- generated HAP are avoided, and CCA credits can be generated. The EPA has also received comments indicating that heat balances are critical concerns in pulping operations but vary from mill to mill

. Directing the use of steam was not considered to be an appropriate evaluation under this technology review since steam/energy balances are particularl y mill

- specific

. 87 This requirement would also not be appropriate for the current standard, as the standard refers to all kraft pulping st andards, which include batch and continuous operations

. Batch operations generally do not use pre - steaming in the chip bin. 

### 5.3 **Bleaching Standards 60.**  **Comment:** Commenter s 0162 and 0163 agreed with EPA’s determination that “there have been no advances in emission control measures [for bleaching] since the subpart S standard was originally

promulgated in 1998” (76 FR 81344). According to c ommenter 0162 , the technology

currently used by the industry

for subpart S compliance is the same as when the rule

85 Additional details on our technology revi ew are provided in docket memoranda , titled Section 112(d)(6) Technology Review for Pulping and Papermaking Processes and Summary of RBLC and Other Findings to Support Section 112(d)(6) Technology Review for Pulp and Paper NESHAP and the European Commission document , titled Integrated Pollution Prevention and Control (IPPC): Reference Document on Best Available Techniques in the Pulp and Paper Industry

. 86 See Rosemount, Inc., “Chip Bin Level Measurement Nets Savings Over $2.3 Million,” 2008, available online at: http://www2.emersonprocess.com/siteadmincenter/PM%20Rosemount%20Documents/00830

- 1300

- 4024.pdf

. 87 See memorandum from J. Bradfield and K. Spence, EPA, to Docket EPA

- HQ

- OAR

- 2007

- 0544 , titled Summary of Clean Condensate Alternative Technology Review , October 23, 2011, in the docket for the subpart S rulemaking73

was promulgated. C ommenter 0162 stated that these sy stems have the same capabilities as the units that were used b y the “best performing” mills that were the basis for the MACT “floor.” **Respo nse**  **:** We acknowledge the commenter s ’ support for our conclusion that there have been no advances in emission control measures for bleaching since the subpart S standard was originall y promulgated. This conclusion was based on our review of the 2011 Part Is urvey responses from the pulp and paper industry , information on pulp and paper control techniques in the RBL C, and the EU document on best available techniques in the pulp and paper industry

. 88 **61. Comment:**  Commenter 0218 stated that EPA did not consider the full range of control options available for pulp bleaching. The commenter noted that EPA‘s technology review reveals that EPA identified two facilities with BACT emission limitations requiring bleaching using no Cl 2 or ClO 2 , or bleaching with only hydrogen peroxide, sodium hydrosulfite, and sodium borohydride. 89 According to the commenter , EPA flatly concluded , however, that the bleach plant chlorinated vent gas emissions are effectivel y controlled (99 percent), and that no amendment to current regul ations is necessary despite EPA’s conclusion that emissions from the bleaching process exceed 5 million lbs of toxic air pollution each year. 90 The commenter stated that EPA did not consider use of environmental management sy stems (EMS) or best practices an d benchmarking to minimize pollution. The commenter noted that the EU recognizes that “the best environmental performance is usuall y achieved b y the installation of the best technology and its operation in the most effective and efficient manner.” 91 As part of the continuous improvement mechanism embodied by EMS , sources could be required regularl y to review all chemicals used in the pulp and paper processes. Replacement chemicals that are safer for the environment should be used if possible, and necessary c hemicals that cannot be replaced with safer alternatives should be used in the lowest amounts practical. This process is considered a Best Available Technique to reduce pollution in Europe, and should be included in the MACT floor in the United States. Acc ording to the commenter, man y pulp and paper facilities in the United States already use continuous improvement mechanisms such as best practices and benchmarking to improve efficiency and decrease environmental impacts. The commenter asserted that EPA fai led entirel y to consider the reduction of air emissions possible using this control technique, despite evidence in the record of pollution prevention techniques used at pulp and paper mills in the United States. 92

88 Additional details on our technology review are provided in docket memoranda , titled Summary of Pulp Bleaching Technology Review and Summary of RBLC and Other Findings to Support Section 112(d)(6) Technology Review for Pulp and Paper NESHAP and in the E uropean Commission document , titled Integrated Pollution Prevention and Control ( IPPC): Reference Document on Best Available Techniques in the Pulp and Paper Industry

. 89 See memorandum from K. Spence and J. Bradfield, EPA, to Docket EPA

- HQ

- OAR

- 2007

- 0544 , titled Summary of Pulp Bleaching Technology Review , November 22, 2011, in the docket for the subpart S rulemaking. 90 Id. , page 4. 91 See European Commission document titled , Integrated Pollution Prevention and Control Draft Reference Document on Best Available Techniques in the Pulp and Paper Industry , Draft April 2010, at 82. 92 See Trip Report for Site Visit

– GP Big Island, LLC (EPA

- HQ

- OAR

- 2007

- 0544

- 0044) (discussing the facility‘s new substance review process).74

**Response :**  The EPA’s technology review identified two facilities with BACT emissions limitations that required bleaching without Cl 2 or ClO 2 or bleaching with only hydrogen peroxide, sodium hydrosulfite, and sodium borohydride. In the case of the facility that is not allowed to bleach with Cl 2 or C lO 2 , the facility produces secondary

pulp. This process requires pulp brightening which is different from bleaching , as it does not remove lignin. In the case of virgin kraft fibers, the lignin must be removed to obtain target final product brightnesses. In the case of the facility

that can only

process p ulp using hydrogen peroxide , sodium hydrosulfite, and sodium borohydride, the facility is producing mechanical pulp, which also only requires brightening, not bleaching. These “bleaching” chemicals are not applicable to virgin kraft pulps. Bleach plant vent gas emissions are effectivel y controlled at 99 percent , and no advances in emission control measures for bleaching have occurred since the initial promulgation of s ubpart S in 1998. The EPA did consider E MS, best practices, and benchmarking in the technology review. The se sy stems are in place at many mills , but the scope of these s ys tems is very mill

- specific and, therefore, difficult to codify , much less allow quantification of the costs and emissions reductions associated with them . Best practices and EMS may be further investigated for the resolution of issues in a future rulemaking where work practices may be deemed appropriate

. 

### 5. **4 Kraft Pulping Condensate Standards**  **5.4.1 Gene**  **ral Comments on the Kraft Pulping Condensate Standards 62.**  **Comment:** Condensate Generation. Commenter 0162 explained that pulping process condensates contain varying concentrations of HAPs, of which methanol is the predominant HAP used as a surrogate in s ub part S. These HAPs are apportioned throughout the process to the pulp, pulping liquors, condensates, and gas streams, also known as non

- condensable gases (NCGs). Some methanol remains in the liquor and will be destroyed when the liquor is burned in the rec overy

furnace to recover sodium and sulfur. Throughout the process, water containing relativel y low concentrations of methanol is sent to the wastewater treatment sy stem (WWTS). For the purposes of compliance with s ubpart S, HAPs are collected from either the gases or condensates from the pulping and evaporator equipment. NCASIstudied the generation and portioning of methanol during the development of the “Cluster Rule” (of which s ubpart S is the air portion), and NCASI Technical Bulletin 702 covers those details. The commenter explained that processes at each mill are slightly different , and the differences affect the partitioning of methanol. The ability to treat condensates is governed b y the fact that methanol has an affinity for water, and it takes a l ot of energy /resources to drive methanol from the liquid phase. Therefore, of the condensates generated, only the concentrated condensate streams , generally above 2000 parts per million (ppm ) , which contain the overwhelming majority of the methanol, can be effectivel y treated in steam strippers. The commenter stated that collecting and treating more process methanol results in greater and greater cost of destruction and makes less and less sense given the acceptable risk conclusion at current treatment leve ls. MACT was set at a more reasonable treatment efficiency and condensate collection rate because the sy stems that comprised the “floor” were designed75

almost entirely

for odor control, and these decisions were made with a necessary mind towards reducing od or (and , therefore , methanol and other HAPs) cost effectivel y. **Response :**  We recognize that methanol is the predominant HAP contained in kraft condensates, that there is variability in methanol generation, that mills treat the highest

conc entration condensate streams in accordance with subpart S (and for odor control). As discussed further below, we did not propose, and nor are we adopting, additional collection requirements. We have evaluated the performance criteria and variability of tre atment s ys tems ty picall y used b y facilities to assure compliance with the kraft pulping process condensate standards in § 63.446. We have also reviewed the information provided b y the commenter that supplements data collected in the I CR. The EPA has decided not to promulgate revisions to the kraft condensate standards upon further evaluation of the costs, energy , and secondary air emissions impacts associated with upgrading these sy stems. The commenter connects the conclusion of the section 112(f)(2) risk re view with the proposal developed under the section 112 (d)(6) technology

review. Technology

reviews require the consideration of technology changes in practices, processes and controls that have led to improved HAP control. As noted in the proposal, risk do es not need to be a factor in section 112(d)(6) considerations and was not here. **63. Comment:**  Condensate Collection and Treatment Compliance Options in the O riginal NESHAP

. Commenter 0162 explained that the MACT standard was divided into two phases of impl ementation. Phase Iset limits for condensate collection and treatment and also required collection and treatment of LVHC NCG streams. During Phase II, mills were required to collect and treat HVL C NCG streams. The commenter summarized that , in 1993, there were 32 mills with steam strippers , and the top 15 were used to develop the MACT “floor” (top 12 percent of all 125 mills that were covered b y the rule). The commenter noted that the top 15 mills were all bleached mills. The commenter explained how an NCASI study documenting HAP collection and treatment at all sources (NCASI Technical Bulletin 661) identified that the best performing 15 mills collected on average 11.1 pounds per oven

- dried ton of pulp ( lb/ODTP ) of methanol and achieved a tre atment efficiency of 92 percent. Based on the average collection of methanol by the top 15 strippers, EPA developed the collection standard of 11.1 lb HAP/ODTP, with methanol being the surrogate for HAPs

. (See § 63. 446(c)(3). ) The standard was adjusted to 7.2 lb HAP/ODTP for unbleached mills, given that unbleached mills generate methanol at a rate that is 64 percent of the rate at which methanol is generated b y bleached mills

. (See NCASITechnical Bulletin 702

. ) The commenter s tated that the two primary methods for condensate treatment are (1) steam stripping and (2) biological treatment. At the time the “Phase 1” requirements of the s ubpart S rule were being developed, the technology used b y most mills that had condensate treatment was steam stripping. Given the affinity of methanol to water and the fact that the condensates could be effectivel y treated b y the active organisms in existing ASB s , biological treatment of the condensates, along with other mill wastewaters, was identified as a feasible alternative to attain a similar level of HAP reduction. 93 The condensates had to be transported in

93 Most aerated stabilization basin (ASB) systems

—the most common type of wastewater treatment systems at pulp mills

-- are more difficult to operate to achieve a 92 percent destruction efficiency than steam strippers, but they also76

a hardpipe and introduced below the surface of the treatment s ys tem in order to minimize volatilization. The commenter summarized that both the condensate collection and condensate treatment requirements in the s ubpart S rule were based on the average collection levels and performance of steam strippers at the best performing mills. As noted above, 11.1 lb HAP/ODTP was the average HAP collec tion of the “floor” steam strippers. As this was an average collection, it was noted that not even all “floor” mills could achieve a collection standard of 11.1 lb HAP/ODTP for bleached mills. Therefore, the “ named streams ” approach was developed. The “ nam ed streams ” are locations where volatile HAPs are generated in concentrations that can be effectivel y treated. To meet the condensate collection requirements for Phase 1, mills could either:
 Collect 11.1/7.2 lb HAP/ODTP (bleached/unbleached) from named streams , or
 Collect all “ named streams ” (it was noted that some mills could not generate the amount of methanol in the lb/ODTP standard), or
 Collect 65 percent of HAPs contained in pulping, turpentine recovery , and evaporator sy stems (based again on the avera ge collection of “ named streams ” by “floor” mills) plus all HVL C/LVHC condensates. (See §63.446(c).) The commenter noted that all these options required collection of “ named streams ” as identified b y the rule ( i.e. , a mill could not take credit for collect ing “unnamed streams ” )

. In addition to collection options, the commenter noted that the current s ubpart S rule offer s four treatment options. These options were again developed based on the “floor” mills’ performance in treating an average of 92 percent in their steam strippers and the outlet concentration of those units. The options provided to treat the collected streams are:
 Reduce or destro y at least 92 percent b y weight of the collected HAPs, or
 Remove or destro y at least 10.2 or 6.6 lb HAP /ODTP (bleac hed/unbleached mills), or
 Remove or destro y so the control device outlet HAP concentration is at or below 330/210 parts per million by

weight (ppmw ) (bleached/unbleached) , or  Recycle condensates to an enclosed treatment sy stem. (See §63.446(e).) The comme nter stated that, based on these requirements, facilities designed s ys tems to comply with the standards with an inherent margin of safety to ensure continuous compliance, given both process and control device variability . In other words, mills designed s ys tems to achieve some level of control beyond what was required by the rule in order to ensure a compliance margin and demonstrate compliance at all times (99 percent+ compliance probability). The commenter stated that this is why it is not surprising for the average treatment performance to exceed the levels required b y the current standards. require less routine downtime for maintenance than steam stripper technology and at less cost. The lb/ODTP treatment option accommodates lower treatment efficiencies if more condensate is collected and treated. These options grew out of the cooperative Cluster Rule effort after industry advanced wastewater treatment as an equally effective treatment system with lower energy requirements and dow ntime. Cooperative thinking is what led to the flexible structure inherent in the Cluster Rule and the relative “near

- uniqueness” of individual mill compliance systems

– equivalent control with the most practical design given conditions and constraints of individual mills.77

**Response :**  We thank the comm enter for their s ynopsis of how the condensate standards in the promulgated rule were developed. We note that one of the 15 mills used in the MACT f loor was a combination bleached and unbleached mill and another was a semi

- bleached mill. **64. Comment**  **:** Clean Condensate Alternative . Commenter 0162 explained that the MACT I Phase 2 required collection of HVLC gases from brownstock washer s ys tems, oxygen delignification sy stems, and some deknotters, screening s ys tems, and deckers. As the cost to collect these gases was high (high volume means larger piping s ys tems and control devices that can handle the volume), the Agency developed the CCA. This option allowed a mill to collect and treat additional condensates (named or unnamed streams) in order to achieve emissions reductions equivalent to those required from “Phase 2” of the rule for control of HVL C sy stems. (See §63.447.) Facilit ies demonstrating compliance using CCA had to quantify emissions under a baseline scenario that reflected MACT I Phase I compliance. Facilities were not allowed to take credit for emission reductions resulting from compliance strategies chosen for MACT I P hase 1. For example, consider a bleached mill complying with the 11.1 lb HAP/ODTP collection requirement and demonstrating the need for 10 percent over

- collection (12.21 lb/ODTP) in order to increase compliance probability and establish averaging times. Su bsequently , this level of collection would be treated as the baseline for CCA , and the m ill would have to achieve additional and surplus emissions reductions to offset not collecting the HVL C streams identified in the rule , if additional condensates were c hosen to be collected and treated under the mill

specific CCA compliance program

. 94 Inorder to demonstrate compliance under this option, in this example, a mill would have to collect additional condensates over the example 12.21 lb HAP/ODTP baseline and ac hieve an emissions reduction equivalent to the emissions reductions that would have been achieved b y controlling the HVL C sources identified in Phase 2. A more complete example of an approach to CCA was described in Attachment 6 provided with comment 0162. **Response :**  We thank the commenter for their overview of the rationale for the CCA standards in cluded in subpart S, and for the example CCA compliance option provided in Attachment 6 to their comment (0162)

. **65. Comment:**  Setting a HAP

- S pecific S tandard instead of a T otal HAP S tandard

. Commenter 0218 objected to the EPA’s proposed total HAP standards for kraft condensates , stating that section 112(d)(6) requires EPA to control each emitted HAP . The commenter asserted that the EPA ha d not stated that it w as using total HAP as a surrogate for all emitted HAPs, as required , in order to be able to meet the test for a surrogate. The commenter further argued that the EPA ha d not demonstrated that total HAP is a valid surrogate , which would require that: 1. T he target HAP is “invariably” present in the surrogate pollutant;

94 See letter from R. Douglas Neeley, EPA Region IV, to Larry Webber, Georgia EPD, March 27, 2003. “Any extra streams or additional mass of condensate used as an operating cushion, or for determining the need for flexibility provided by a longer averaging time, cannot be used as credit for the CCA, since it was granted and used to meet the collection requirements of § 63.446.”78

2. M ethods to control or capture the surrogate pollutant “indiscriminately” control or capture the target HAP as well; and 3. T he controls for the surrogate are the “onl y means ” by which facilities “ achieve” reductions of the target HAP. The commenter stated that was unclear if the EPA considered other means that plants use to reduce each HAP, such as the use of cleaner raw materials, different processes, or control technologies

. The commenter observed that there is an extremely long list of pollutants emitted by the pulp and p aper source category , ranging from methanol, acetaldehyde, formaldehyde, benzene, gl ycol ethers, and POM to cadmium, lead, nickel, mercury, and manganese. The commenter stated that , considering this broad range of emitted pollutants, EPA cannot simply assume that the kraft condensate standards will appropriately control all HAPs simply

because i t has set a total HAP standard. **Response :**  Methanol was selected as the surrogate compound for measuring total HAP for most control devices since it is the predominant HAP in process vent and wastewater streams. Compliance demonstration based on methanol was found to be sufficient and meet the noted surrog acy requirements for gaseous streams. However, the 1998 final rule specified that total HAP must be measured when demonstrating compliance using biological treatment (or the CCA) for pulping process condensates. In the 1998 final rule, EPA explained that: 95 “Because methanol is one of the most difficult HAPs to remove with a steam stripper (the technology

on which the standards are based), even greater removals of total HAP would occur when a steam stripper is used. Thus, methanol is a reasonable surrogate under such conditions. The opposite is true for biological treatment sy stems, where methanol is one of the easier HAPs to degrade. As such, the final regulation specifies that a total HAP removal (not just methanol) of 92 percent be achieved by biological treatment sy stems.” The 1998 final rule did not refine EPA's definition of total HAP for this category

. Additional data to establish a specific list of the 188 HAPs for compliance testing became available following promulgation of the 1998 final rule . NCASI submitted to EPA a study 96 that showed that the regulated condensate streams contain a finite number of measurable HAPs

. The NCASIdata report ed that the HAP compounds with concentrations greater than 1 ppmw in regulated condensate streams are methanol, me thyl ethyl ketone (MEK) , acet aldeh yde, and propionaldeh yde; and that m ethanol accounts for approximately 98.5 percent of the total HAP mass , with acetaldeh yd e, MEK , and propionaldehyde accounting for the remaining 1.5 percent. Therefore , on January

25, 200 0 , we proposed a pro cedure (the “methanol procedure” ) for use as an alternative to demonstrating compliance of biological treatment s ys tems on an individual HAP basis. As part of the methanol procedure, mills we re required to measure the ratio (“r”) of non - methanol HAP (acetaldehyde, MEK , and pro pionaldehyde) mass to methanol mass.(65 FR 3911) This procedure was finalized on December 22, 2000 (65 FR 80755).

95 See 63 FR pages 18511 and 18524 , April 15, 1998. 96 Hazardous Air Pollutants Present in Kraft Mill Condensates and thei r Significance for the Hard

- piping Option under Maximum Achievable Control Technology (MACT) , Decem ber 1998

. Docket No. A

- 92

- 40 , Item No. VI

- D

- 1.79

We believe our analy ses have satisfied the criteria listed by the commenter. We note that complianc e equations discount any control of non

- methanol HAP unless it can be demonstrated directly . In other words, mills often over

- control methanol to demonstrate compliance if they cannot demonstrate destruction of non

- methanol HAP in condensate streams. We also note that HAP s are primarily

generated at pulping operations from the wood raw material, n ot solvents or additives, so th ose criteria is not applicable here

. **66. C**  **omment:** Commenter 0163 requested a public announcement of a new proposal if EPA were to reanalyze the I CR data and reach another set of proposed conclusions about some incremental improvement in overall HAP reduction , so that an opportunity to comment is afforded. The commenter noted that they would expect for any

proposal to discuss rule provisions for adjusting averaging times , since averaging time is critical for achievability of a condensate collection standard and also must be considered directly linked to the treatment standard. The commenter noted that EPA would also need to consider the need for mills to develop achievable strategies for adequate compliance margin in any adjustment of the standard it proposes. **Response :**  We have reanalyzed the ICR data and considered information provided by commenters that supplements data in the I CR. Based on our independent review, we have decided not to revise the kraft condensate standards at this time. No new proposal is required. **5.4.2 Technology, Proposed Numerical Limits, and Variability Associated with Kraft**  **Condensate Collection and Treatment 67.**  **Comment:** K

raft C ondensates Standard Insufficiently Stringent

. Commenter 0218 stated that , although EPA did recognize that current processes and controls are capable of achieving greater reductions , EPA failed to set a standard that satisfies section 1 12(d)(6) or section 112(d)(2)

- (3). The commenter observed that , while the EPA found that only 15 mills would need to improve their efficiency under the new 94 percent control of total HAP from kraft condensates, EPA found that of 171 mills, more than 100 w ould not be affected by updating the standard to 98 percent

– presumably

because they

are already achieving that level of control

. The commenter noted that the EPA still only proposed a 94 percent standard because of cost ($4 million per year, or $1,000 per ton of HAP control cost effectiveness). The commenter cited two reasons wh y EPA failed to set an updated MACT floor based on the emission reductions achieved b y the best

- performing sources . First, the commenter stated that percent reduction standards are unlawful under section 112 because they do not reflect the emission level achieved by the best performing sources, just what EPA thinks can be achieved through the use of certain control technology . In support of this argument, the commenter cite d the Portland Cement NESHAP (Sept. 9, 2010), Coal

- and Oil

- Fired Electric Utility Steam Generating Units NESHAP (Feb. 16, 2012), and Fossil

- Fuel

- Fired Electric Utility , Industrial

Commercial

- Institutional, and Small Industrial

- Commercial

- Institutional Steam Generating Units NSPS, (Feb. 16, 2012) as examples of where the EPA has maintained that a percent reduction format negates the contribution of HAP inputs to source performance and “may be i nconsistent with the D.C. Circuit Court ’s rulings as restated in the Brick case (479 F.3d at 880) which say , in effect, that it is the emissions achieved in practice ( i.e. , emissions to the80

atmosphere) that matter, not how one achieves those emissions .” Th e commenter emphasized that a percent reduction standard is inconsistent with and violates section 112’s basic requirement to set standards based on the emission reductions achieved, regardless of the method used to do so. The commenter recommended that th e EPA review each element of the standards that contains an unlawful percent reduction standard and perform the required anal ys is under section 112(d) to ensure emission reductions will occur based on what the best performers have achieved and based on what is now achievable. Second, the commenter stated that , rather than setting a MACT floor based on the greater reduction levels achieved at the best performing units in accordance with section 112(d)(6) and section 112(d)(3), the EPA skipped the floor

- updating step and proceed ed to consider costs

–a step that is only

proper when setting limits “beyond

- the

- floor.” The commenter, citing Nationa l Lime Ass‘n v. EPA, 233 F.3d 625, 640 (D.C. Cir. 2000); and NRDC v. EPA , 489 F.3d 1364, 1375

- 76 (D.C. Cir. 2007), argued that the MACT “floor” must be determined “without reg ard to costs or other factors and methods listed in section 7412(d)(2).” The commenter expressed concern that costs we re a central component of EPA’s analy sis of achievable control, and stated that cost is not appropriate for reviewing and setting a MACT f loor standard. The commenter urged the EPA to rectify

this error in the final rule b y considering reductions “achieved” and “achievable” from all “developments” in this sector, and setting the updated MACT standard pursuant to section 112(d)(6). The commenter concluded that failing to set a more stringent standard due to cost alone is unlawful and arbitrary and capricious. Commenter 0218 further stated that , even if EPA could consider costs, its choice of a cost threshold wa s arbitrary

and capricious . The c ommenter contended that even if EP A could skip the floor

- setting process and proceed directly to set limits to provide an adequate margin of safety, its choice of a cost threshold wa s arbitrary and capricious. The commenter considered the EPA’s determinati on of control efficiency for existing kraft condensate treatment to be minimal, when higher levels of control would also provide an adequate margin of safety at a reasonable cost. The commenter notes that for the Secondary L ead Smelting NESHAP, the EPA found a cost of $1.5 million per ton, or $750 per pound to be reasonable, a higher cost than a nationwide reduction of over 12,000 tons of HAPs per year from kraft condensate that is achievable at a cost of only $2,700 per ton. **Response :**  At the outset, the commenter indicate d that the proposal overlook ed the core information concerning the applicab ility of the proposed changes. There is a misunderstanding regarding the affected universe of kraft pulp and paper mills. There are 171 major sources , but only 97 of those have kraft pulping operations subject to the kraft condensates standards. 97 Of the 97 kraft pulping mills , we projected at proposal that 15 mills would need to make improvements in condensate collection and/or treatment to raise their control level to 94 percent. The commenter then proceed ed to indicate that they believe d that EPA was obligated to recalculate the MACT floor and set the new control requirements at 98 percent , the reported levels indicated by the b etter performing units in the I CR con ducted for the rulemaking.

97 See memorandum from J. Bradfield and K. Spence, EPA , to Docket EPA

- HQ

- OAR

- 2007

- 0544 , titled Summary of Kraft Condensate Control Technology Review , October 23, 2011, in the docket for the subpart S rulemaking.81

As noted above, EPA does not believe a section 112(d)(6) technology review obligates the A gency

to recalculate MACT floors or otherwise reconsider what the best performing sources can achieve as if this were a repeat of the secti on 112(d)(2) and (d)(3) anal ys is . Instead, we read this provision as providing the EPA with substantial latitude in weighing many factors to arrive at the appropriate balance in considering revisions. T he central point of our anal ys is first anal yz ed perfor

mance of condensate treatment units, not cost , as suggested by the commenter

. 98 The selection of a 94 percent control level for proposal reflected our consideration of treatment sy stem performance (as we understood it at proposal), as well as our proposal e stimates of cost, HAP reductions, energy

impacts, secondary

air emissions impacts, and small business impacts

. The commenter also indicate d that they believe standards should be set based on “emissions achieved” rath er than a percentage reduction. We disagree, though we would note that the proposed rule includes a mass per production v olume reduction option and a ppm limit for control demonstration , which were both adjusted to reflect equivalence to a 94 percent reduction stand ard at proposal. T he commenter does not explain their reasoning behind a general objection to percent reduction

- based standards . One objection we have received in previous comment is that such standards could presumably facilitate production increases that generate additional emissions, even after the required p ercentage control is achieved. Inthe case of kraft condensate generation, such a concern would not have foundation

. In fact , condensates represent the residue of HAP that precipitate out in high

- moisture atmosphere gas streams, the non

condensable portion of which is incinerated. There is no economic advantage to generating more (or fewer) condensates. Furthermore, the regulations cited by the commenter as examples where, according to the commenter, EPA has maintained th at a percent reduction format negates the contribution of HAP inputs to source performance, are all standards affecting combustion sources ( e.g. , cement kilns, boilers) that can have fuel

- related emissions. The mechanisms for reduction of fuel

- related comb ustion emissions are not the same as for HAP emissions from process liquids. Last ly , the commenter found our choice of cost thresholds arbitrary and capricious , citing our Secondary

L ead Smelting NESHAP. While we agree that different thresholds were used in the Secondary

L ead Smelting NESHAP, the choices of cost thresholds will vary based on the ty pe of regulatory

anal ys is performed and, with respect to risk assessment, our assessment of risk acceptability . There were two reasons we chose different cost thresholds in this rulemaking

. First, in this case, the cost choices in the proposal were made under the section 112 (d)(6) technology

review , where, as we note above, EPA has ample latitude regarding cost considerations, not under a risk

- based ample margin of safety analysis. Second, the commenter’s analogy draws a comparison to an anal ys is for a PB

- HAP in the Secondary L ead NESHAP RTR , where the risks were judged to be unacceptable. A s noted in the proposal preamble , and discussed elsewhere in th is document (see section 4. 2.4 ), the pulp and paper s ubpart S source category was not found to have PB

- HAP s ignificant enough to require a multipathway risk assessment , and the risks for the s ubpart S category evaluated under section 112(f)(2) were found t o be acceptable

. **68. Comment:**  Opposition to Increasing Stringency of Kraft Condensates Standard. Several commenters (0162, 0163, 0165, 0167, 0170, 0172, 0207, and 0212) opposed in creasing the

98Id

. .82

stringency

of the k raft pulping condensate treatment requirement s . Commenter 0162 stated that EPA ha d not justified or supplied information in the docket that document ed or justifie d the proposed increase in treatment efficiency to 94 percent. The commenter noted that EPA’s documentation states “ the average percentage removal of kraft condensates was 96.2 percent, ” as the sole basis for the proposed increase in treatment requirements. 99 The commenter claimed that EPA did not evaluate the control technologies used for compliance with s ubpart S and the ability for these s ys tems to perform at higher efficiencies, nor did EPA identify the changes needed to the MACT floor technologies to achieve these higher efficiencies. The commenter stated that EPA had misinterpreted the I CR data and not taken into account sy stem variability , the need for compliance margin, or the higher standard currently required b y wastewater treatment s ys tems. Therefore, it wa s inappropriate for the Agency to propose a higher standard without evaluating the current limits of the control sy stems in place or documenting how facilities would comply with the proposed standards. Commenter 0163 agreed with the EPA’s assessment that there are no advances that could become the basis for revised treatment options for condensate HAP redu ctions. The commenter stated that the EPA anal yses of the 2011 pulp and paper ICR concluded that all kraft pulp mills are performing at a higher level of control than the 92 percent minimum required and consequentl y that the technology has advanced since the 1998 MACT rule to warrant the development of an updated standard. The commenter stated that the EPA subsequently developed an “equivalency calculation” that framed a series of higher percent control options and translated the se into the optional numeric al lb/ODTP and ppm treatment limits as already structured in the current rule. The commenter stated that EPA proposed limits based on their calculation of a 94 percent control efficiency . The commenter concluded (based on their independent review and from the reports provided by NCASI) that EPA ha d misinterpreted the ICR data and reached an inappropriate conclusion. According to commenter 0163, the fact that EPA did not uncover any new or advanced control technology wa s an initial flag regarding EPA’s subs equent proposal. A second flag wa s a significant anomal y resulting from EPA’s path forward from what appears to be a flawed anal ys is that would result in HAP reductions exceeding the condensate HAP colle ction standards in §63.446(c). The commenter attached NCASI’s interim anal ys is ( comment 0163.1 and 0163.2). Commenter 0165 stated that the technology review is flawed, and there have been no significant technical advances in the past decade. The commenter disagreed with the EPA’s requirement of further reduc tions in the pollutant methanol, stating that methanol is of questionable hazardous impact. The commenter asserted that the p ulp and p aper industry is already facing significant requirements for Boiler MACT and should not be required to make further expenditures for no improvement. Commenter 0172 commented that controls at their mills that were installed for MACT were the latest technologies, and that no newer technologies are known that would enable additional methanol removal and treatment from process co ndensates. The commenter strongl y endorsed the comments of NCASIthat EPA inappropriatel y used data from industry responses to the Part I ICR when deciding to raise the required destruction efficiency for steam strippers from

99 Id.83

92 percent to 94 percent . The Agency did not adequately

anal yz e data from facilities usin g the CCA, or those having high

- rate biological treatment sy stems, and did not consider operational and seasonal variability , or degradation in the performance of steam strippers over time. After p roperl y discarding these outlier facilities from the database, the remaining data set represents a very limited number of mills and thus fails to provide a sufficient basis for revising the condensate treatment standard. Commenter 0172 also stated that EPA failed to use the correct calculation methodology to derive the proposed new lb/ton limits in several way s. First, EPA inappropriately extended the 25 percent increase in percent destruction efficiency to the mass destruction standards. Second, EPA did no t fully

evaluate the regulatory

or economic impacts of modifying the mass destruction requirements. The EPA appeared to have simply evaluated the mass destruction values calculated during the initial performance tests and reported in the ICR submittals and then concluded that most facilities would be able to comply with this “average” value. The Agency did not consider that normal process variability causes facilities to be either over or under this destruction value on a daily basis. This wa s a critical ov ersight, as compliance with the standard must be demonstrated on a daily basis. Unless this normal process variability is considered, some mills will be out of compliance a statisticall y significant portion of the time. **Response:** We have reviewed the ICR data identified as a “ misinterpretation ” and made the appropriate adjustments to our evaluation in the final rule. The commenter appears to misunderstand some of the components of our analy sis. They indicate a belief that the lack of new control technolog y application is significant in our anal ys is. It is not. As noted elsewhere in this section, our anal ys is focused on the “p ractice ” of existing technology , put in place with the MACT rule and evaluated whether there were advances in the applicatio n of that control technology

. Additionally, the commenter note d that they believe methanol’s hazardous impact is questionable. Regarding risk, our de cision related to the hazard of m ethanol (and other HAPs) was considered under our two

- step assessment process and found acceptable. However, our control decisions for kraft condensates were made within the context of a section 112(d)(6) technology

review. Methanol is a HAP, HAP control was the bas is of the MACT floor, and using methanol as the basis for this analy sis i s appropriate. Nevertheless, EPA has reanal yz ed the condensate treatment technology performance levels in light of information provided by the commenter. We reviewed the additional cost and control information provided by the commenter, inf o rmation that supplem ents data collected in the I CR. We reanal yz ed the condensate treatment technology performance. The condensate treatment technology

performance levels, costs, and impacts used in our final anal ys is for promulgation are included in the docket and summarized elsewhere in this document ( e.g. , in this section and in section 11 ). 100 Our reanal ys is of the kraft condensate standards and impacts considered (among other things) the following:

 Regulatory

options for 93 and 94 percent HAP removal (as compared to the baseline of 92 percent);

100 See memorandum from T. Holloway, K. Hanks, and C. Gooden, RTI, to J. Bradfield and B. Schrock, EPA, titled Costs, Environmental, and Energy I mpacts for the Promulgated Subpa rt S Risk and Technology Review , May 15, 2012, in the docket for the subpart S rulemaking.84

 No change in the condensate collection requirements, and clarified through revised lb/ODTP and ppmw treatment limits;
 Variability

in treatment sy stem performance;
 Potential impacts of condensate HAP concentrations on CCA mills using approaches involving process water; and
 Energy

and secondary

air emissions impacts for new and upgraded steam strippers. The EPA has decided not to promulgate revisions to the kraft condensate standards upon further evaluation of the cos ts, energy , and secondary air emissions impacts associated with upgrading condensate treatment s ys tems. **69. Comment:**  Technology Unchanged for Condensate Treatment

. Commenter 0162 agreed with EPA’s determination that its “ technology review of kraft condensates did not yield any information about new technologies that could become the basis for regulatory options ” (76 FR 81345). According to commenters 0162 and 0172, the technology used b y the industry

for subpart S compliance is the same as when the rule was promulgated. Commenter 0162 stated that these sy stems have the same capabilities as the units that were used by the “best performing” mills that were the basis for the MACT “floor.” However, commenters 0162 and 1072 disagreed with EPA’s proposal preamble statement that, “ [f] or kraft pulping condensates, we have determined that the technology has sufficientl y advanced since the 1998 MACT rule to warrant the development of an updated standard” (See 76 FR 81344). Commenter 0162 stated that CAA s ection 112(d)( 6) directs EPA to “review, and revise as necessary ...[the initial MACT standards] (taking into account developments in practices, processes, and control technologies)” (emphasis added). The EPA ha s no w proposed to revise the condensate treatment requirements , not because the Agency has identified any

new developments in processes or treatment technologies beyond what EPA identified when establishing the MACT floor, but simply because EPA believe d it ha d data indicating that wastewater treatment sy stems and st eam strippers achieve control efficiencies greater than the 92 percent that the current MACT rules require. First , there is no support of the Agency’s conclusion in the available data. 101 Additionally , even if this were true, this is not a sufficient finding to warrant revising the MACT standards pursuant to section 112(d)(6) (and EPA lacks any other authority for revising the s ubpart S MACT standards 102 ).

101 Interim comments on rationale and methodologies used to evaluate and propose increased treatment requirements for kraft condensates in the Pulp and Paper ICR, NCASI Memo to Ms. Robin Dunkins, Mr. John Bradfield, Mr. Bill Schrock, February 17, 2012.

– This memo outlines other factors to be considered while reviewing condensate treatment data reported in the ICR and why it is inappropri ate to attribute the performance to technological or operational improvements.

– The contents of the NCASI memorandum are discussed and provided as Attachment 4 to comment 0162. 102 Congress structured section 112 unlike other provisions of the CAA (and othe r environmental statutes). Under CAA sections 112(c)(2) and 112(e), EPA was given definite deadlines for promulgating MACT standards for various source categories. The MACT “floor” thus represented performance at a specified point in time. Congress did not give EPA authority to review periodically the performance achieved by the “best performing” facilities, but only to determine, at least every eight years after the MACT “floor” was established (and any more

- stringent “beyond

- the

- floor” MACT standards were justified), whether it is necessary to revise the MACT standards to account for “developments in practices, processes, and control technologies.”85

C ommenter 0162 contended that anal ys is of stripper performance test data in the docket wa s inadequate and that EPA lack ed an understanding of what the data represent. The test data we re not summarized to the extent that they could be verified b y the companies that submitted such data within EPA’s massive I CR effort. Individual test data we re not even listed in the docket . The commenter asserted that the data we re largel y initial compliance test data as required by the rule. These tests confirm compliance with the rule with a necessary margin to assure compliance over the range of operating conditions the stripp er will see. The same is true of analogous wastewater treatment sy stem controls. A margin of compliance determined under initial performance test conditions verifies proper design and construction of the equipment and not that “technologies have advanced.” Further, the commenter could find no adequate description in the record on how EPA wa s considering to modify stripper and wastewater treatment s ys tems to achieve a higher 94 percent destruction efficiency , while maintaining a margin and certainty of compl iance needed for operation over the range of conditions present. Finally , the calculated lb/ton compliance option requirements, purportedl y consistent with the 94 percent efficiency

objective, could not be achieved, in any way the commenter could determine , without more than doubling the investment in control equipment. The commenter concluded that the logic employed in developing the lb/ton proposed requirements wa s clearly flawed. C ommenter 0162 stated that when the statute directs EPA to revise MACT stan dards onl y where “necessary ...taking into account developments” in process and control technology , EPA must identify

specific changes in the applicable technology that necessitate a change in the standard, and that EPA has not done so here. The commenter stated that neither the preamble to the proposed rule nor any document they could identify in the docket describe d new control technology

for pulp mill condensates, nor even advances in the condensate collection and steam stripper technology

that was the basi s for existing condensate treatment standards. Rather, EPA ha d concluded that it c ould se t a more
- stringent limit that could be met by some mills using the same technology

that was the basis of the existing MACT standards. The commenter asserted that Congress clearl y did not intend for section 112(d)(6) to authorize that sort of tightening of the standard that companies have already taken the steps to meet, absent a specific change in available technology . (Moreover, as EPA has already acknowledged, even if new, more effective treatment technology

were available, EPA would still need to consider the cost effectiveness of that technology

and other factors (See NRDC v. EPA , 529 F.3d 1077, 1084 (D.C. Cir. 2008)). The commenter contended that EPA had not conduct ed that sort of analy sis here. C ommenter 0162 stated that the only fact EPA relie d on to propose revised standards, purportedl y under authority of CAA section 112(d)(6), wa s that some mills are achieving HAP removal rates greater than the 92 percent MACT removal rate. The commenter noted that it would be surprising if mills were meeting the MACT standards at all times and with a very high compliance probability

and yet on average had treatment efficiencies no higher than the minimal efficiency necess ary to comply

with the existing MACT standards. For instance, sound engineering and environmental control practices would require a steam stripper to be designed and operated with removal efficiency greater than 92 percent to assure compliance at all times

. The commenter asserted that nothing in the language of section 112(d)(6), the legislative history of section 112, or common sense suggests that Congress wanted EPA to constantly “ratchet

down” the MACT standards, removing the margin of compliance that facilities have built into their HAP control s ys tems. The commenter stated that adjustments are appropriate only when there are advances in practices, processes, or control technologies.86

**Response:** We disagree with the commenter’s interpretation of our legal authority concerning setting tighter standards for kraft condensates under CAA section 112(d)(6). As noted above, we interpret section 112(d)(6) as essentially requiring us to consider all developments in practices, processes, and control technologie s in the industry . When we take into account the “ developments in practices, processes, and control technologies , ” we interpret that language as a requirement not only to evaluate new control technologies and process improvements but also to evaluate the a pplication of existing control technologies that were the basis of the MACT floor. Inthat evaluation we examine whether, in the ‘practice’ of appl yi ng the MACT floor technology , there have been technological advances. Generall y, we consider whether the MA CT floor technology , in practice, is consistently performing better than anticipated in the original MACT floor anal ys is. Indeed, we did not find in our evaluation of data received in the ICR conducted prior to proposal that there were significant modifications to the basic kraft pulping process or new technologi es for control of condensates. In the proposal, our initial evaluation indicated that kraft condensate control, using the technologies originall y anticipated had improved since promulgation. Consequ ently , we proposed to raise the treatment standard from a 92 percent control basis to a 94 percent basis. 103 However, as discussed previously , we have since reevaluated the data in light of information provided by the commenter. Discussions with industry rep resentatives ensued shortly after the proposal was published in the Federal Register on December 27, 2011 , when industry representatives began expressing their concerns with the proposal. The EPA met with industry representatives to discuss the kraft conde nsate standards on January 12, March 16, March 28 and May 2, 2012. Minutes for these meetings were placed in the docket soon after each meeting occurred. 104 Inresponse to the commenters’ request for additional information on EPA’s anal ys is, EPA provided a spreadsheet on January

12, 2012 showing the data that EPA used in developing the proposed revisions to the condensate limits. 105 We reanal yz ed the condensate treatment technology performance levels in light of information provided by the commenter, which supplements the ICR. The condensate treatment technology

performance levels used in our final anal ys is for promulgation are also included in the docket. 106 Our reanal ys is of the kraft condensate standards considered the following:

 Regulatory

options for 93 and 94 percent HAP removal (as compared to the baseline of 92 percent);
 No change in the condensate collection requirements, and clarified through revised lb/OD TP and ppmw treatment limits;
 Variability

in treatment sy stem performance; and

103 See memorandum from J. Bradfield and K. Spence, EPA, to Docket EPA

- HQ

- OAR

- 2007

- 0544 , titled Summary of Kraf t Cond ensate Control Technology Review , October 23, 2011, in the docket for the subpart S rulemaking. 104 See U.S. E PA documents titled, Meeting notes for the January 12, 2012 meeting with AF&PA ; Meeting notes for the March 16, 2012 meeting with AF& PA ; Meeting notes for the March 28, 2012 meeting with AF&P A ; and Meeting notes for the May 2, 2012 meeting with AF& PA , in the docket for the subpart S rulemaking. 105 See U.S. EPA document, titled Materials for January 12, 2012 Meeting with Pulp and Paper Indust ry Representatives to Discuss the December 27, 2011 Pulp and Paper RTR Proposal; Part I. 106 See memorandum from T. Holloway, K. Hanks, and C. Gooden, RTI, to J. Bradfield and B. Schrock, EPA, titled Costs, Environmental, and Energy Impacts for the Promulgated Subpa rt S Risk and Technology Review . May 15, 2012, in the docket for the subpart S rulemaking.87

 Potential impacts on CCA mills using approaches involving process water of condensate HAP concentrations W e did not propose, and nor are we adopting, additional collection requirements. The EPA has decided not to promulgate revisions to the kraft condensate standards upon further evaluation of the costs, energy , and secondary air emissions impacts associated with upgrading these s ys tems. Regarding the comment er’s concern that data supporting the proposal analy sis were not available in the docket, we note that our anal ys is of the kraft condensate standards at proposal was documented in a memorandum , “ Summary of Kraft Condensate Control Technology Review ” (EPA

- HQ

- OAR

- 2007

- 0544

- 0128 ). **70. Comment**  **:** Clarification of the Proposed Numerical L imits . Commenters 0162 and 0167 stated that the numerical HAP treatment levels EPA proposed are greater than the current HAP collection requirements. The commenters stated that the proposal to increa se the required HAP reduction ( e.g. , from 10.2 lb/ODTP in the current rule to 12.8 lb/ODTP, for bleached kraft mills and from 6.6 lb/ODTP in the current rule to 8.3 lb/ODTP, for unbleached kraft mills) is not consistent with the proposed rule’s stated basi s: that the removal efficiency can be increased from the 92 percent to 94 percent and that no additional condensates need to be collected. Commenter 0162 noted that in the equivalency calculation used to arrive at these numerical limits, EPA calculated the percent increase in control for each 1 percent increase in treatment efficiency

from 92 percent to 98 percent (the level of control achieved for mills choosing the condensate recycling option). The commenter represented EPA’s rationale graphicall y in Figure 1 below: **Figure 1. EPA Calculation Methodology (Submitted by Commenter 0162)** 

Using this approach, the percent “standard improvement” 107 corresponding to an increase in treatment efficiency

from 92 percent to 94 percent would be 2 percent of the maximum possible 8 percent = 2/8 = 25 percent. Using this approach, the percent “standard improvement” for each 1 percent increase in treatment efficiency (from 93 percent to 98 percent) would be:

 At 93%

- 1 percent of max possible 8% = 1/8 = 12.5%

107 See memorandum from J. Bradfield and K. Spence, EPA, to Docket EPA

- HQ

- OAR

- 2007

- 0544 , titled Summary of Kraft Cond

ensate Control Technology Review , page 4, October 23, 2011, in the docket for the subpart S rulemaking

.88

 At 94%

- 2 pe rcent of max possible 8% = 2/8 = 25%
 At 95%

- 3/8 = 37.5%
 And so forth These percent “standard improvements” were subsequently directl y applied as scaling factors to arrive at numerical treatment limits in Table 2 in the October 23, 2011 memo. As discussed during the meeting between EPA and AF&PA on Jan 12, 2012, the commenter contended that the above methodology of calculating numerical limits is inconsistent with the premise behind the equivalency approach. The commenter provided the following insights from the equivalency approach highlight this issue:
 The scale ranging from 92 percent to 100 percent is the treatment scale

.  Assuming that whatever is not treated/controlled is released as emissions, emissions would reduce from 8 percent to 0 percent as treatment increases from 92 to 100 percent

.  The percent “standard improvements” calculated above are, in effect, emissions reductions.
 In other words, a 2 percent increase in the numerical treatment efficiency standard is equivalent to a 25 percent reduction in associated remaining emissions.
 When calculating numerical treatment limits, the applicable scaling factors should therefore reflect the original treatment scale and not the percent “standard improvement” (emissions) scale. As done in the ori ginal rulemaking, the lb/ODTP treatment requirement is simply

calculated by

multiplying the collection requirement by the proposed percent control efficiency , as shown in Figure 2 below. **Figure 2. AF&PA Recommended Calculation Methodology**

**(Submitted by Co mmenter 0162)** 

Commenters 0162 and 0167 stated that the numerical treatment standards corresponding to the 94 percent treatment level can be calculated directly as shown below and are represented on the treatment scale in Figure 2 above.

 7.2 lb/ODTP x 0. 94 = 6.8 lb/ODTP for unbleached mills
 11.1 lb/ODTP x 0.94 = 10.4 lb/ODTP for unbleached mills89

Commenter 0162 provided an alternate approach to calculating these numerical treatment levels that is logicall y consistent with applying EPA’s statements about in creasing treatment efficiency from 92 to 94 percent using the percent “standard improvement” scale as follows:

 Collection levels are 7.2 lb/ODTP and 11.1 lb/ODTP (unbleached and bleached respectivel y)

.  At 92 percent, the treatment levels are 6.6 lb/ODTP an d 10.2 lb/ODTP

.  Therefore, when increasing the treatment standard from 92 percent to 94 percent, you achieve a 25 percent “standard improvement” (reduction in emissions)

.  6.6 + 25% of (7.2

– 6.6) = 6.8 lb/ODTP

– unbleached mills
 10.2 + 25% of (11.1

– 10.2) = 10.4 lb/ODTP

– bleached mills In developing the ppmw option that equates to 94 percent removal, commenter 0162 stated that EPA used the correct calculation methodology . For example, the current standard for bleached mills is 330 ppmw at the outlet of the control device. Since this standard was based on a treatment efficiency

of 92 percent, it would be assumed that the inlet condensate concentration is 4125 ppmw (330 / (1

- 0.92)). If the treatment standard were raised to a level of 94 p ercent, the outlet concentration would need to be lower than 248 ppmw 108 (4125 ppmw x (1

- 0 .94)). Commenter 01 6 2 noted that EPA calculated that the rule would result in the reduction of 4,000 tons of HAP emissions per year. Based on the assumption that 97 mil ls produce an average 1,000 ODTP per day

(d) and the average decrease in emissions would be 0.2 lb/ODTP (equivalent increase in the standard calculated using the AF&PA methodology) , the result is a reduction of approximately 3,500 ton HAP per ye ar (y r), wh ich is in line with the EPA estimate. In addition, commenter 0172 also stated that EPA’s currentl y proposed lb/ton limits are actuall y above the amount of condensate that mills are required to collect in the first place (11.1 lb/ton for bleached mills and 7.2 lb/ton for unbleached mills). The mass collection requirements were originally

developed after evaluating available HAPs in each condensate stream, which streams could be economically treated, and variability

of those streams. The EPA did not propose to raise these collection requirements. Thus, the Agency cannot legall y or logically promulgate a destruction standard that is higher than the present collection requirement. Should EPA promulgate the proposed lb/ton limits along with the new destruction s tandard notwithstanding these comments, the effect would be to require bleached mills to collect 13.6 lb/ton (12.8 ÷ 0.94) and unbleached mills to collect 8.8 lb/ton (8.3 ÷ 0.94). These collection amounts are far above the 11.1 lb/ton and 7.2 lb/ton MACT f loors that were established in the original Cluster Rule. The commenter contended that EPA d oes not provide any justification to modify these MACT floor limits and thus cannot promulgate these flawed numbers. The commenter stated there have been no “develo pments in practices, processes and control technologies” as required by section 112(d)(6) in kraft pulping in the last 10 years that would justify a change in the condensate collection MACT floor. Commenter 0172 stated that these numbers, in many

mills, are above the amount of regulated condensates that are routinely available to collect from their regulated processes. Several of the commenter’s mills would be

108 See memorandum from J. Bradfield and K. Spence, EPA, to Docket EPA

- HQ

- OAR

- 2007

- 0544 , titled Summary of Kraft Cond

ensate Control Technology Review , page 4, October 23, 2011, in the docket for the subpart S rulemaking

.90

unable to meet either the collection or destruction standards simply because the process is not ab le to generate enough methanol or the mill’s condensate treatment sy stem (stripper) is not capable of treating more condensate. Specific data from the commenter’s kraft mills provided in T able 5 below demonstrate that several mills would face significant periods of non

- compliance with the collection standard should EPA raise the destruction standard. **Table 5. Data on Methanol Collection and Percent of Time below De Facto Proposed**

**Collection Standard from Georgia -**  **Pacific Kraft Mills**

**(Submitted by Commenter 0172)** 

**Mill Average** 

**Me thanol**  **Collection, lb/ton**  **Percent of Tim e Below** 

**De Facto Proposed Collection Standard**  **Comments** Cedar Springs, GA 10.6 13% Mill’s stripper at maximum capacity, no opportunity for treating additional condensates Palatka, FL 13.2 23% Very limited opportunity for additional collection Crossett, AR 14.2 32% Collecting all named streams, no opportunity for collecting additional condensates Monticello, MS 8.6 49% Very limited opportunity for additional collection Port Hudson, LA 13.3 61% Collecting all named streams, no opportunity for collecting additional condensates Brunswick, GA 11.8 95% Mill’s stripper Camas, WA 13.2 92% Collecting all named streams, no opportunity for collecting additional condensates Similarly , commenter 0207 stated that significantly more stringent standards could create compliance issues for the commenter’s mills if the species or condition of the wood pulped at the mills were to change. The commenter c ontended that EPA’s proposal had not accounted for s uch long

- term variability

and uncertainty in mills’ collection efficiencies. The commenter noted that, by design, their condensate collection sy stems generall y achieve “over

- collection” of HAPs in order to maintain compliance under varying operating condit ions. The commenter argued that EPA’s proposal to raise the bar of compliance simply because some facilities have built a margin of compliance wa s not justified. **Response :**  Itwas not our intent to propose an increase the condensate collection requirements. Rather, we intended to reflect advances in condensate treatment efficiency with our revisions to the condensate standards. We updated our equivalency calculation for the treatment limits as part of our reanal ys is of the condensate performance levels. Tabl e 6 below lists the percent removal treatment regulatory options and their equivalents in lb/ODTP and ppmw considered for promulgation. The treatment standards considered for promulgation did not exceed the collection requirements. As noted elsewhere, EPA has decided not to promulgate revisions to the kraft condensate standards. **Table 6**  **. Kraft Condensate Treatment Standards Considered**  **for Promulgation Percent removal**  **option lb/ODTP removal**  **a p**  **pmw b** 

**Unbleached Bleached**  **Unbleached Bleached**  92% (baseline) 6.6 10.2 210 330 93% 6.7 10.3 184 289 94% 6.8 10.4 158 24891

a . The equivalent lb/ODTP removal standards were calculated as follows: 0.93 x 7.2 = 6.7 ; 0.93 x 11.1 = 10.3; 0.94 x 7.2 = 6.8; 0.94 x 11.1 = 10.4. b . The equivalent ppmw standards were developed by first back

- calculating an uncontrolled ppmw, U [ 210 ppmw = (1

- 0.92)U  U= 2625 ppmw ] , and then applying the revised percent reduction to U [ (1

- 0.93) 2625 = 184 ppmw]

. **71. Comment:**  IC R Data Inappropriatel y Interpreted. Commenters 0162 and 0163.2 included NCASI ’s interim comment. They stated that EPA staff suggested informally, during a meeting with industry

representatives on January 12, 2012, that the mass HAP reduction standard proposed in th e rulemaking could also be justified by I CR data. The commenters asserted that this wa s inconsistent with rule language in the proposal , which suggest ed that the proposed numerical limits we re based on a supposed equivalency between a 94 percent removal rate and a lb/ODTP mass reduc tion ( s ee 76 F R 81345). The commenters stated that they did not have any thing in writing from EPA explaining the basis for the proposed mass removal rate requirements, which prevent ed the industry from commenting effectivel y on the December 27, 2011 propos ed rule. Nevertheless, the commenters noted that EPA ha d suggested in subsequent discussions that information reported b y mills in response to the Part I ICR support ed the proposed rule. NCASI ha d attempted to anal yz e the I CR data to help EPA understand it s significance. The commenter noted that during the January 12 meeting with industry representatives, EPA also provided a spreadsheet summarizing the data EPA had culled from industry responses to the Part II CR. Since that meeting, NCASIwas able to acces s the entire set of responses EPA received to the Part I ICR. In response to EPA’s proposal to increase assumed stripper (or biotreatment) efficiency from 92 to 94 percent , NCASI has determined that the I CR data are not sufficient to support that proposal (or any increase in treatment efficiency above the current MACT standards). With respect to lb/ODTP condensate treatment levels, NCASI has anal yz ed the ICR responses to assess whether they could be used to support a conclusion that technology improvements would allow for more stringent condensate treatment requirements. In its review, EPA subcategorized kraft mills based on the ty pe of treatment performance data provided in the ICR. Specificall y, EPA reviewed the mass treatment levels (lb/ODTP) reported b y both unbleached and bleached mills to ascertain whether operational improvements had been realized b y facilities. As discussed in the meeting with AF&PA and NCASI on January 12, 2012, several other factors need to be considered while reviewing condensate t reatment performance data reported in the I CR and attributing that data to technological or operational improvements. These other factors are provided below:

 Facilities using the CCA

- For facilities compl yi ng with the HVL C sy stem requirements under §63.44 3 using CCA (§63.447) or other “equivalency by permit” options, the reported condensate treatment levels reflect compliance with the requirements under both § §63.446 and 63.447 (Phase 1 and Phase 2, respectively). Therefore, as indicated b y EPA in the meet ing, it is inappropriate to attribute the combined treatment values to Phase 1 treatment requirements. (An example CCA compliance option wa s discussed in Attachment 6 to comment 0162.)

 High performance biological treatment s ys tems

– A handful of facilities demonstrate compliance with Phase 1 by treating hardpiped condensates in high

- rate biotreatment sy stems like activated sludge treatment (AST), anaerobic treatment, or UNOX. These92

dedicated high rate s ys tems can operate at higher treatment efficiencies than traditional ASB s . As a consequence, these sy stems are generally paired with lower lb/ODTP collection levels (closer to the 11.1 lb/ODTP collection requirement for bleached mills). The focus in these s ys tems is to collect higher

- concentration (lower

- volum e) condensates and to minimize flow (which is a significant determinant in system capital and operating costs). The trade

- off is higher treatment efficiency on a smaller (more

- concentrated and lower

- volume) amount of HAP for roughl y equivalent lb/ton

- treat ed performance. When percent treatment data from these s ys tems are combined with those of ASBs and the “combined average” is compared against the current 92 percent standard, there is a potential to erroneousl y conclude that ASBs are performing at levels a bove the current standard.

 Operational and seasonal variability in biological treatment s ys tem performance

– Facilities have the option of collecting additional condensates in their hardpiping s ys tem in order to maintain compliance flexibility, i.e. , to be able to demonstrate compliance using either the “percent removal” or “lb/ODTP” treatment options. Additionally , reported treatment levels also reflect safety margins required to demonstrate ongoing compliance with treatment requirements over the wide rang e of operational situations that exist throughout ty

pical pulp mills.

 Facilities demonstrating compliance using steam strippers

– The reported percent destruction OR percent removal numbers reflect equipment performance during one or two i nitial p erformanc e t ests (IPT s ). These datasets are snapshots of performance immediately

following commissioning or scheduled maintenance and reflect safety factors inherent in equipment design. These design factors are essential to ensure ongoing compliance at the level o f the current standard. They compensate for the gradual degradation of performance from the higher initial level of control to the minimum control requirement over normal maintenance cycles, largel y attributable to fouling or scaling of heat transfer surfa ces in contact with process condensates. Initial performance tests would, by

nature, capture the high end of designed performance. From the data requested in the I CR , it would not be possible for EPA to discern the relative importance and contributions of these factors, particularl y in the context of the wide flexibility in compliance options, the design variations, and operational differences that exist among individual compliance s ys tems. Recognizing this, companies responding to the ICR had requested that EPA confer with them in analyzing the data in order to ensure that conclusions reflected a thorough understanding of process variations and realities. The EPA chose not to communicate on these issues in developing the proposed standards. The I CR data pro vided by EPA was anal yz ed b y NCASIin order to further illustrate the points reiterated above. NCASIdrew the following conclusions from their anal ys is: 109

 Mills reporting p ercent r emoval in b iotreatment s ys tems

109 These conclusions (and the ones for unbleached mills and steam strippers below) address performance data as it pertains to condensate treatment. More detailed comments on the inherent variability in condensate collection levels, and compliance strategies used to accommodate the same, are provided in Section IV.C3 of comment 0162.93

o Only 4 mills have reported percent removals in biotreatment s ys tems that (a) are representative of Phase 1 compliance and (b) can be compared against the current requirement of 92 percent . This is too limited a list from which to draw substantive conclusio ns on over - performance. o Additionally , the percent removal data do not indicate control levels in excess of current requirements (when compared against the actual F bio, methanol of 94 percent ). 110
o In formation from such a limited list of mills is not an adequate basis for revising the current percent removal standards

.

 Unbleached mills reporting mass treatment levels (lb/ODTP) o Only 3 facilities remain on the list with reported lb/ODTP treatment levels reflective of Phase 1 compliance. Data from such a limited number of facilities is not an adequate basis for revising the numerical condensate treatment standards.

 Bleached mills reporting mass treatment levels (lb/ODTP) o For facilities employing s team s trippers, reported treatment levels reflect equipment performan ce during one or two IP Ts . These datasets reflect performance immediately following commissioning or scheduled maintenance and reflect safety factors inherent in equipment design. These factors are incorporated during equipment design and are essential to ensure ongoing compliance at the level of the current standard ( i.e. , 92 percent). o Given the limited number of mills remaining on this list, it is inappropriate to use treatment information available from these mills as the basis to revise the condensate treatment standards. The details of this anal ys is are included in Attachment 4 to comment 0162. **Response:** Our analy sis of the kraft condensate standards at proposal was documented in a memorandum , “ Summary of Kraft Condensate Control Technology Review ” (E PA

- HQ

- OAR

2007

- 0544

- 0128). The EPA did not discuss consideration of revisions to the kraft condensate standards with industry

representatives prior to proposal, in part because we believed that onl y a marginal change in treatment efficiency was being propo sed, and also because of time limitations for development of the proposal. 111 Discussions with industry representatives ensued shortly after the proposal was published in the Federal Register on December 27, 2011 when industry representatives began expressin g their concerns with the proposal. The EPA met with industry representatives to discuss the kraft condensate standards on January 12, March 16, March 28 and May 2, 2012. Minutes for these meetings were placed in the docket soon after each meeting occurred

. 112 Inresponse to the commenters’ request for additional information on EPA’s

110 The need to demonstrate “treatment equivalency” for non

- methanol HAPs means that in order to demonstrate an effective methanol treatment efficiency of 92 percent ( F bio, adjusted), the actual me thanol treatment efficiency (F bio, methanol ) would have to be at 94 percent. Details provided in Attachment 4 to comment 0162. 111 To address a lawsuit filed by Sierra Club, the subpart S RTR package was scheduled to be signed by the Administrator for proposal by December 15, 2011. 112 See U.S. E PA documents, titled Meeting notes for the January 12, 2012 meeting with AF&PA ; Meeting notes for the March 16, 2012 meeting with AF& PA ; Meeting notes for the March 28, 2012 mee ting with AF&P A ; and Meeting notes for the May 2, 2012 meeting with AF& PA , in the docket for the subpart S rulemaking.94

anal ys is, EPA provided a spreadsheet showing the data EPA used in developing the proposed revisions to the condensate limits on January 12, 2012. The condensate treatment technol ogy performance levels used in our final anal ys is for promulgation are also included in the docket. 113 Our reanal ys is of the kraft condensate standards considered the following:

 Regulatory

options for 93 and 94 percent HAP removal (as compared to the baseline of 92 percent);
 No change in the condensate collection requirements, and clarified through revised lb/ODTP and ppmw treatment limits;
 Variability

in treatment sy stem performance; and
 Potential impacts on 34 of 38 CCA mills using CCA approaches inv olving process water of condensate HAP concentrations

. We acknowledge the commenters’ summary of Phase 1 and Phase 2 treatment levels, and note that this is an issue for mills using the CCA. We took another look at the survey data for CCA mills (independe nt of the comments received) and included costs and impact estimates for mills where we believed the CCA approach could potentially be negated b y the revised condensate standards. We also considered costs to repeat the CCA demonstration in the impacts anal ys is for promulgation. We reviewed the performance data from the Part I IC R for biotreatment sy stems by coupling the data reported in the IC R Kraft Condensates table with data reported in the IC R Wastewater table in order to evaluate which mills might be affected by the different condensate regulatory

options under consideration

. In the Wastewater table , mills provided quarterly results for the fraction of methanol removed (F bioMeOH ), total HAP percent remov al, and total HAP mass removal in kilograms per megagram of oven

- dried pulp (kg/Mg ODP)

. Compliance is based on the total HAP percent removal or total HAP mass removal, which we converted to lb/ODTP for compari son with the regulatory options

. Although comm enters suggested that AST and UNOX sy stems typicall y have higher treatment efficiencies than ASBs, we noted overlap in the F bioMeOH values reported in the ICR Wastewater table for all three s ys tem ty pes, likely

due to normal variability

in biotreatment sy s tem performance. 114 We also note that the cost to upgrade an ASB to AST is in the $30 to 35 million range for a single sy ste m, 115 and UNOX s ystems would be “replacement” biotreatment sy stems ( i.e. , upgrade from an ASB is not feasible). Therefore , a change in b iotreatment sy stem ty pe was not found to be cost

- effective (or feasible) for the incremental change in the kraft condensate standards. Rather, we expect that mills would install a steam stripper for condensate control if their existing biotreatment sy stem could not consistently achieve the regulatory

options due to variability

. R egarding steam stripper variability , we acknowledge that some of the data reported in the I CR and used to asses steam stripper performance was IPT data. However, many I CR

113 See memorandum from T. Holloway, K. Hanks, and C. Gooden, RTI, to J. Bradfield and B. Schrock, EPA, titled Costs, Environmental, and En ergy Impacts for the Promulgated Subpa rt S Risk and Technology Review , May 15, 2012, in the docket for the subpart S rulemaking. 114 Id, Appendix A3. 115 See U.S. E PA document, titled Meeting notes for the May 2, 2012 meeting with AF& PA , in the docket for the subpart S rulemaking95

respondents provided more recent repeat performance test data. We considered all of the reported perfor mance levels in our reanal ys is. When considering all treatment sy stems (biotreatment and steam strippers) , we noted from our reanal ys is of performance data that mills are, on average , operating with a margin for variability

of about 4 percent removal , or 50 percent on a lb/ODTP basis. As noted extensively by commenters, the reasons for operational variability vary from mill to mill, and include the need for condensate over

- collection and/or over

- treatment to ensure compliance with the lb/ODTP treatment standard or CCA; or over

- treatment to ensure compliance with the percent reduction or ppmw standard. Operation al variability was factored into our reanal ys is of the costs and impacts of the revised condensate treatment standards. After accounting for variability and other comments related to the impacts anal ys is ( e.g. , the need to account for steam stripper energy impacts), we found that the 93 and 94 percent removal condensate treatment options under consideration for promulgation were not cost

- effective and resulted in undesirable energy and secondary

air emissions impacts. Therefore, we have decided not to promu lgate revisions to the kraft condensate standards. **72. Comment:**  Variability in Condensate Collection . Commenters 0162 and 0163.1 stated that the amount of methanol generated and subsequently collected in condensate streams varies significantl y between mill s. This variability is driven by

process typ e and final product quality (batch vs. continuous pulping, unbleached vs. bleached, bleaching sequences, and oxygen delignification). Studies have also shown that, for any given mill, there is significant day

- to
- day variability

in methanol content of condensate streams. Consequently , mills need a reasonable averaging time to demonstrate compliance with the collection requirements. Facilities have used site

- specific data on variability and, in man y cases, a statist ical calculation methodology , to demonstrate the need for this averaging period. The majority of the facilities use either a 15

- day or 30

- day averaging period to demonstrate compliance with these requirements. The commenters noted that a statistical approa ch was outlined by NCASI , during the original rulemaking, to calculate the averaging periods required to demonstrate compliance. The methodology

and factors affecting this calculation are detailed in Attachment 7 to comment 0162 (and in Attachment A to comment 0163.1). The Relative Standard Deviation (RSD) for methanol collection is calculated from mill

- specific data. The averaging period needed to demonstrate compliance is calculated for the following scenario:
 Mill over

- collecting condensates b y 10 percent, and
 Mill d emonstrating compliance with a 95 percent compliance probability

. This approach can also be extended to other compliance probabilities and over - collection levels. In order to address the issue from the perspective of over

- collection and to illustrate its importance in demonstrating compliance, Table 4 below extends this analysis to include the following:
 Facility uses a 15

- day averaging period to demonstrate compliance

.  For a given RSD, the levels of over

- collection required to demonstrate comp liance at different compliance probabilities are calculated

.  This exercise is repeated for varying RSD levels

.96

Table 7 below provides the over

- collection levels to demonstrate compliance with lb/ODTP collection requirements (Basis: 15

- day averaging period)

– submitted by commenters 0162 ( Table 4 ) and 0163.1 (Table 1)

. **Table 7. Over -**  **Collection Levels to Demonstrate Compliance with lb/ODTP Collection Requirements**  **(Submitted by Commenters 0162 and 0163.1) RSD**  **Percent Compliance Probability** 

**95% 96%**  **97% 98%**  **99%** 20 9 10 11 12 14 25 12 13 14 15 18 30 15 16 17 19 22 35 17 19 20 23 27 As an example, a facility

with an RSD of 30, in site

- specific condensate methanol content, would have to do the following:
 Over

- collect methanol b y 22 percent to demonstrate compliance with a 99 percent compliance probability

.  In other words, a bleached mill would have to collect 13.5 lb/ODTP and an unbleached mill would have to collect 8.8 lb/ODTP in order to demonstrate compliance with reasonable assurance 99 percent of the time

.  In order to demonstrate compliance with a 99 percent probability , even with a 15

- day averaging period, a facility needs an ywh ere from 14 to 27 percent of methanol over

collection , depending on the RSD of collection data. Table 8 below provides a snapshot of daily variability

in methanol content in condensates at four mills, again illustrating the need for over

- collection to demonstrate compliance with high percent compliance probabilities, at the level required by the current standard. **Table 8. Condensate Collection Characteristics at Four Kraft Mills**

**(Submitted by Commenters 0162 and 0163.1)**

**Source Condensate Collection Characteristics** 

**Avg. Daily Collection, lb/ODTP**  **Standard Deviation (SD)**  **RSD** Mill A (Bleached) 12.7 3.2 25.1 Mill B (Unbleached) 9.5 3.1 32.5 Mill C (Bleached) 15.1 3.4 22.4 Mill D (Bleached) 17.7 4.4 25.0 Given (a) the above discussed variability in methanol collection and (b) the requirement to demonstrate compliance at all times, the above anal ys is illustrates the following:
 Over

- collection is an essential part of the compliance strategy used by mills.
 Over

- collection levels and averaging times serve to increase compliance certainty with the condensate collection requirements.97

 Therefore, numerical average data on collection levels that exceed currently promulgated levels (11.1 lb/ODTP and 7.2 lb/ODTP for bleached and unbleached mills, respectivel y) should not be interpreted as performance at levels exceeding the current standard

. **Response:** The EPA has evaluated the comment data provided on variability , as well as the rule’s current approach to averaging ti mes for condensate collection. We have also reanal yz ed the impact of process and treatment s ystem variability in our regulat ory

anal ys es for the final rule. When accounting for variability , we have determined that a greater number of mills would be impacted by the proposed kraft condensate revisions than was estimated at proposal. We have also estimated that several of these mi lls would require installation of a new steam stripper to achieve the increase in treatment efficiency proposed. New steam strippers would require significant additional energy to operate ( i.e. , steam produced from an onsite boiler), and , therefore, have e nergy and secondary

air emission impacts not considered at proposal. Based upon our reanal ys is of the cost, energy , and secondary air emission impacts of the regulatory

options considered for promulgation we have decided not to revise the kraft condensate standards. **73. Comment:**  Commenter 0162 stated that the proposed increase to the condensate treatment standard inappropriately fails to address the need to account for treatment sy stem variability

in both biological treatment s ys tems and steam strippers. Biological Treatment Sy stem Variability

. Commenter 0162 explained that during the original development of the standards, four HAPs were identified in pulping condensates: methanol, propionaldeh yde, acetaldeh yde, and MEK (the latter is no longer a HAP, b y d efinition, but is still included in subpart S ). For the HAPs other than methanol, technology did not exist to measure concentrations below 1 ppm. Given that the concentration of these three non - methanol compounds is ty

picall y below 1 ppm in ASBs, there were uncertainties in quantifying and estimating the biotreatment efficiencies for these compounds during the timeframe of the original rulemaking . Facilities were , therefore , given the following option to demonstrate “treatment equivalency” for non

- methanol HAPs:
 As a worst case, assume 0 percent treatment efficiency for non

- methanol HAPs in biotreatment sy stems.
 In lieu of treating these non

- methanol HAPs, demonstrate equivalency by treating an additional quantity

of methanol equivalent to the amount of non

- methanol HAPs. The commenter explained that the industry agreed to the development of an “r

- factor”

– the mass ratio of non

- methanol HAPs to methanol HAPs

—as a means to establishing this treatment equivalency . More details on the r

- factor approach were provi ded as part of the NCASI Interim comments (Attachment 4 to comment 0162). When using a nominal average “r

- factor” of 0.02 (based on NCASI studies), this treatment equivalency demonstration mean s that the actual F bio, methanol has to be 94 percent in order to achieve an adjusted F bio of 92 percent. This compliance aspect wa s essentially written into the rule and is not an option. Therefore, ASBs, as currentl y regulated, have to operate at a higher standard with respect to methanol removal than strippers.98

NCA SIreviewed the reported treatment efficiencies in the I CR responses. A compilation of data on “intra

- facility” variability in ASB performance, extracted from the 2011 pulp and p aper ICR, was provided as part of interim comments submitted by NCASI (Attachm ent 4 to comment 0162). The average “intra

- facility” variability in F bio, methanol was about 5 percent according to th ese data. The commenter stated that , if mills are required to increase treatment of all HAPs from 92 to 94 percent, the actual methanol re moval efficiency would now have to be 96 percent , which is an unrealistic mandate a fter accounting for operational variability of 5 percent. Th e commenter charged that EPA had not performed an anal ys is on whether this level of ongoing control wa s feasible, and it wa s unclear whether upgrades to s ys tems would even be feasible or effective if implemented. Steam Stripper Variability. Commenter 0162 explained that steam strippers used for s ubpart S compliance were designed and sized based on the collection and treatment requirements. These units are maintained to stay above the required treatment levels for compliance margin purposes (based on surrogate parameters). The commenter noted that reported efficiencies for steam strippers are generally based on the 3

- r

un initial performance test (conducted when units were new or after maintenance , which represents an optimized performance level of the unit and not a sustained performance level). The results reported are expected , as the unit should perform at or near the peak of s ys tem design during the performance test , as this is generally

when the unit is “clean” and operating at its highest efficiency and not representative of the minimum efficiency the unit can sustain betwee n maintenance outages/cleanings. While the units can have higher “peak” efficiencies, most were designed to achieve a continuous treatment efficiency of 92 percent. If the performance tests results were not over 92 percent with a good margin of safety , a f acility could not have confidence that the unit would be able to continuously meet the treatment standards. **Response :**  With regard to biotreatment sy stem variability , we re viewed the site

- specific r - factor values reported in the I CR and agree that this ma ss ratio of non

- methanol HAPs to methanol HAPs is ty

pically around 0.02, reflecting that approximately 2 percent of the measured HAP are non

- methanol HAP. The maximum value of “r” reported in the ICR responses was 0.06 , and the average was 0.017

. Since MEK is no longer a HAP , we considered whether to remove it from the group of HAPs to be included in the r

- factor , but decided that MEK’s small contribution to “r” has little effect on the compliance calculation, and , therefore , did not amend the equation . We agree with the commenter’s assessment of the r

- factor’s impact ( i.e. , that it can lead mills to operate their biotreatment sy stems to remove 96 percent methanol in order to compensate for the non

- methanol HAP). We also independentl y reviewed the average “i ntra
facility” variability in F bio, methanol reporting in the ICR results and noted an average F bio, methanol variability

of 4 percent. 116 R egarding steam stripper variability , we acknowledge that some of the data reported in the I CR and used to asses steam stripper performance was IP T data. However, many I CR respondents provided more recent repeat performance test data. We considered all of the reported perfor mance levels in our reanal ys is.

116 See memorandum from T. Holloway, K. Hanks, and C. Gooden, RTI, to J. Bradfield and B. Schrock, EPA, titled Costs, Environmental, and Energy Impacts for the Promulgated Subpa rt S Risk and Technology Review , Appendix A3, May 15, 2012, in the docket for the subpart S rulemaking.99

When considering all treatment sy stems (biotreatment and steam strippers) , we noted from our reanal ys is of performance data that mills are, on average , operating with a margin for variability

of about 4 percent removal , or 50 percent on a lb/ODTP basis. As noted extensively by commenters, the reasons for op erational variability vary from mill to mill, and include the need for condensate over

- collection and/or over

- treatment to ensure compliance with the lb/ODTP treatment standard or CCA; or over

- treatment to ensure compliance with the percent reduction or pp mw standard. Operational variability was factored into our reanal ys is of the costs and impacts of the revised condensate treatment standards. After accounting for variability and other comments related to our impacts anal ys is ( e.g. , the need to account for steam stripper energy impacts), we found that the 93 and 94 percent removal condensate treatment options under consideration for promulgation were not cost

- effective and resulted in undesirable energy and secondary

air emissions impacts. Therefore, we hav e decided not to promulgate revisions to the kraft condensate standards. **74. Comment:**  Need for Flexibility

. Commenter 0162 described the ongoing need for flexibility . The commenter contended that implementation of MACT was successful in reducing emissions and health risks from the p ulp and p aper s ubpart S subcategory , and that this success was partl y due to the flexibility of compliance alternatives. There are currently three collection and four treatment compliance approaches along with the CCA and “equiva lency

- by

- permit” options. Every

mill is different in its approach to achieve compliance with the standard. These differences include:
 The quantity

and quality

of the condensates generated at the mill ,  The compliance approach for MACT I Phase 2 (collect HVL C streams or use the CCA option),
 The control devices and options used to achieve the treatment standards (dual treatment sy stems, over
- collection of condensates to compensate for lower treatment efficiencies, etc.), and
 Pulping technology

options ( e.g. , c ontinuous and batc h digesters), heat balances, sulfidity , equipment arrangements, ambient conditions, space limitations, receiving water constraints, water suppl y limitations

. The commenter stressed that ongoing flexibility wa s imperative to ensure that mi lls can maintain compliance (minimize emissions and residual risk) and manage energy use while staying competitive in a global marketplace. The proposal to raise the treatment standard from 92 percent to 94 percent jeopardizes compliance for facilities that designed their collection and treatment s ys tems to achieve compliance with the current standard. The proposed treatment standards of 12.8/8.3 lb/ODTP (bleached/unbleached) threaten to negate the lb/ODTP treatment compliance approach , as well as the CCA and equivalency by permit (EBP) 117 MACT I, Phase 2 compliance alternatives. While the rule offers other options for collection and treatment, mills cannot easil y convert compliance approaches without significant costs. The industry spent over $1 billion to ac hieve compliance with the pulp and paper MACT standards, and the end result was an acceptable level of residual risk. It is not reasonable and is legally unwarranted to make changes to the standards that have significant financial impacts and remove flexib ility , when

117 Under §63.94, a facility can propose an alternative compliance approach that would be equivalent (plus other benefits) to compliance with the standard. It is similar to the CCA in that it offers flexibility, but it allows the facility to determine the app roach. For example, a facility could decide to control the vents of the Black Liquor Oxidation Sy stem (BLOx) as part of the EBP approach.100

there is acceptable residual risk and minimal benefit to the environment from further tightening the standards. The EPA failed to make an adequate demonstration in its analy s is and record for changes of this magnitude, and , thus , current requirements should be retained. **Response :**  We acknowledge the site

- specific nature of mills’ s ubpart S compliance strategies and expenditures (in terms of capital and engineering time) that have accompanied MACT compliance. In our reanal ys is of the survey data , we reviewed the performance levels of each mill using the various percent reduction and equivalent lb/ODTP and ppmw options (for bleached vs. unbleached mills). We further considered the impact of revisions to the condensate standards on CCA mills as part of our independent reanal ys is of the kraft condensate regulatory options. Of the 38 CCA mills, we estimated that th e CCA compliance approach could potentiall y be negated b y the condensate standard revisions at 11 mills, and that these mills would switch from the CCA to use HVLC controls. Switching from CCA to HVL C control was estimated to cost $15 million in capital an d $1.89 million/year per mill. We also estimated that 34 of the 38 mills would be required to repeat their CCA compliance demonstration , at a cost of $130,000 per mill. 118 Consideration of these costs , and the fact that mills are required to achieve greater HAP emission reduction through CCA than would have been achieved through compliance with the HVL C pulping vent gas standards , contributed to our decision not to promulgate the proposed revisions to the kraft condensate standards under the section 112(d)(6) technology review. The number of available condensate compliance approaches under s ubpart S has not changed as result of our final technology review. **75. Comment:**  Commenter 0163 submitted a copy (0163.1) of an NCASI document entitled, “Demonstrating Compliance with Methanol Collection and Treatment Under Subpart S

– Implementation Aspects.” The document notes that demonstrating compliance with both collection and treatment requirements is a two

- step procedure: 1. Demonstrating the 11.1 lb/ODTP and 7.2 lb/O DTP collection requirement, and 2. Demonstrating either the 92 percent removal OR the corresponding lb/ODTP removal requirement. The document addresses the inherent vari ability in the amount of methanol collected in condensates and, when combined with operational variability in control efficiencies of the treatment device, highlights the importance of over

- collection and compliance flexibility for demonstrating continuous compliance under the requirements of the current standard (compliance at all times or equivalent to a 99 percent+ compliance probability). Elements of this document were also submitted with comment 0162 and are summarized above. The document refers to NC ASI’s February 18, 2012 interim comments and includes an attachment entitled “Establishing Averaging Periods for Condensate HAP Collection” prepared by NCASI (the same document as Attachment 7 to comment 0162 noted above). **R esponse:**  We acknowledge submi ttal of the NCASIdocument, “ Demonstrating Compliance with Methanol Collection and Treatment Under Subpart S

– Implementation Aspects ”, and its attachments . The information in this document was reviewed and taken into

118 See memorandum from T. Holloway, K. Hanks, and C. Gooden, RTI, to J. Bradfield and B. Schrock, EPA, titled Costs, Environmental, and Energy Impacts for the Promulgated Subpa rt S Risk and Technology Review , May 15, 2012, in the docket for the subpart S rulemaking.101

consideration in our reanaly sis of the kraft condensate performance levels. As noted above, EPA has decided not to revise the kraft condensate standards upon further consideration of the operational and performance variability inherent in condensate collection and treatment s ys tems and the cos ts, energy , and secondary air emission impacts associated with the 93 and 94 percent removal options anal yz ed for promulgation. **76. Comment:**  Commenter 0162 stated that the proposed concentration limit for condensate treatment for bleached mills wa s inconsistent with background documents. The commenter stated that, in the preamble to the proposed rule (76 FR 81345) and EPA’s memo dated October 23, 2011, Table 2 states that the equivalent concentration for bleached mills is 248 ppmw. 119 However, in the p roposed rule, the concentration is listed as 210 ppmw. 120 The commenter noted that the proposed rule need ed to be modified to be consistent with the anal ysis in the docket. **Response :**  We carefull y reviewed the proposed rule sections noted by the commenter and did not see the issue. The proposed revised limit for bleached mills was 248 ppmw. (The originall y promulgated limit for unbleached mills was 210 ppmw.) As noted above, EPA has elected not to promulgate the proposed revisions to the kraft condensate stand ards. The original s ubpart S ppmw limits for kraft condensates have been retained.

119 See memorandum from J. Bradfield and K. Spence, EPA, to Docket EPA

- HQ

- OAR

- 2007

- 0544 titled Summary of Kraft Condensate Control Technology Review , page 7, October 23, 2011, in the docket for the subpart S rulemaking

. 120 76 FR 81354, p roposed r ule §63.443(4)102 

## 6. **Unr egulated Sour**  **ces 77.**  **Comment:** Commenter 0218 stated that EPA unlawfully failed to set a standard to control all pollutants when the EPA set the initial section 112 (d) standard in 1998. The commenter quoted text from 63 FR 18504, 18510, specificall y the statements that “MACT for chloroform at these mills is no control” and “EPA will also determine whether it is appropriate to revise MACT (pursuant to CAA section 112(d)(6)) in order to control chloroform emissions at those mills.” The commenter noted that EPA also stated that it was deferring control of Cl 2 emissions. The commenter was unclear as to whether EPA ever fulfilled its duty to set a section 112(d) standard for Cl 2 . The commenter noted that EPA‘s emission dataset shows 356 tons per ye ar of chloroform and 24 tpy of Cl 2 . 121 The commenter asserted that EPA cannot justify failing to set standards to control these pollutants, and must set a section 112(d) standard in this rulemaking to comply

with sections 112(d)(1 ), 112(d)(2), and National Lime Ass’n

. 122 Commenter 0218 p ointed out that the EPA ’s original standard also stated that “[t]here are no control requirements for pulping s ys tems or process condensates at [Mechanical Pulping Mill, Secondary

Fiber Pulping Mill, Non

- wood Pulping Mill, and Papermaking System] mills. Fo r papermaking s ys tems, there are no control requirements.” 63 FR 18510

- 11. The commenter also noted that EPA also exempted wood yard operations (including wood piles), tall oil recovery sy stems at kraft mills, emissions from weak liquor storage tanks (even though some tanks are controlled), and bleaching s ys tems that use h ypochlorite and non

- Cl 2 compounds. Id. at 18,519

- 20, 18,525. The commenter stated that for these pollutants and sources, EPA must consider and set a standard, based on the emission reducti ons achieved and now achievable, using various technologies, practices, processes, and input materials now available, and this standard must satisfy section 112(d)(2)

- (3). **Response :**  In the initial standard in 1998, the EPA “propose[d] to authorize Bleached Papergrade Kraft and Soda subcategory mills under certain circumstances to submit a certification based on process changes in lieu of monitoring for chloroform ” ( 63 FR 18504). This process change was the conversion from Cl 2 bleaching to TCF or ECF bleaching, which resulted in a significant reduction of chloroform emissions. The EPA also stated “[ w]ith respect to chloroform emissions from bleaching sy stems, EPA is closely correlating the air and water standards. This is becau se EPA is rel yi ng on the same process change technology basis to control both chloroform emissions to air and pollutant discharges to water. Thus, MACT to control chloroform for bleaching sy stems requires a mill either to meet the applicable baseline efflu ent limitations guidelines and standards for all pollutants being promulgated today under the CWA or to certify

that Cl 2 and hy

pochlorite are not used in the bleaching s ys tem. ” Chlorine emissions are controlled through the use of bleach plant scrubbers, wh ich are required to remove 99 percent of bleach plant HAPs, including Cl 2 . For both of the stated reasons, the EPA has set a standard to control Cl 2 and chloroform. Notably , no chlorinated bleaching compound was found to cause an increase in chronic cancer risk at the one in a million level.

121 See U.S. EPA’s Residual Risk Assessment for the Pulp &Paper Source Category at 31 , in the docket for the subpart S rulemaking

. 122 See 233 F.3d at 639; 42 U.S.C. 7412(d)(1), (d)(2).103

We disagree with the commenter that section 112(d)(6) mandates that the EPA must correct an y deficiency in an underl yi ng MACT standard. We believe that section 112 does not expressly address this issue, and the EPA has discretion in determining how to address a purported flaw in a promulgated standard. We intend to further investigate potentially deficient standards and plan to address them in a future sector rule proposed under section 112(d)(2) and (3). **78. Comment:**  Co mmenter 0153 state d that the EPA should amend the affected source definition in § 63.440(b) to include all of the affected sources in the definition of CCA affected source at § 63.447 (a)(1) ( i.e. , Clean condensate alternative affected source means the total of all HAP emission points in the pulping, bleaching, causticizing, and papermaking s ys tems (exclusive of HAP emissions attributable to additives to paper machines and HAP emission points in the LVHC s ys tem). The commenter suggest ed that the EPA change th e current definition found in § 63.447(a)(1) to remove the exclusion of HAP additives from the CCA in order to allow f or new additive technology

development

. The commenter state d that two mills in the RTR are currentl y controlling HAPs in papermaking using easily transferable techniques such as white water temperature control and careful choice of the fresh water introduction point . The commenter suggest ed that the CCA has allowed for these new technologies to be develope d and either numerical limits and/or work practices could be established for papermaking s ys tems. **Response :**  The commenter is correct; the affected source definition in § 63.440(b) should be changed to include causticizing and papermaking s ys tems when standards are set for those emission points. We intend to explore these points in a future sector rule proposed under section 112(d)(2) and (3). The HAP emissions from HAP

- containing paper machine additives were found to be negligible during the promulgation of the original rule. We reexamined the issue in our review of the 2011 Part I survey

responses and reached the same conclusion as before. Additionally , all facilities must currentl y be in compliance; therefore, we do not expect any future CCA requests that would warrant adjustment to the affected source definition . We agree with the commenter that either numerical limits and/or work practic es can be established for paper making s ys tems; we plan to address this in a future sector rule proposed under section 112(d)(2) and (3)

. **79 .**  **Comment:** C ommenter 0225 stated that “ponds ” are an unregulated source. Emissions from the ASBs are not regulated at all, even though by PTPC ’s 1993 study , those are some of the worst fumes to come from the PTPC mill. The commenter asserted that emissions sources must be included. The commenter submitted an NCASIreport ( comment attachment 0225.4) of a project undertaken to estimate the emissions of compounds from the ASB at PTPC in response to Agreed Order #5771, Item number 3. This project combined fiel d studies with modeling work to estimate the annual emissions of methanol, propionaldeh yde, ME K , and TRS compounds from the sy stem. The study plan for this project was communicated to the Department of Ecology on January 29, 2009 . The NCASI report concluded that , relative to other industry was tewater treatment sources, the emissions estimated are on the low end of what has been measured and104

studied and the treatment sy stem appears to do an excellent job of destroying these compounds before significant air releases occur. The estimated emission rates were 104 tpy methanol, 13 tpy acetaldeh yde, 1.4 tp y propionaldehyde, 2.6 tp y MEK, and 58 tp y TRS. **Response :**  Aerated stabilization basins at facilities which treat their kraft pulping process condensates are considered to be regulated sources. Facilities meeting § 63.446(e)(2) are required to discharge condensate below the liquid surface of a biological treatment sy stem and to treat the condensates to destro y total HAPs by 92 percent by

weight, or to remove 6.6 or 10.2 lb of HAP per ODTP (unbleached/bleached) , or to ach i eve a total outlet HAP concentration of 210 or 330 ppmw or less (unbleached/bleached). The PTPC mill uses biotreatment to control kraft condensates , and they

over - control collection and treatment for the CCA . The MEK and TRS emissions to which the commenter is referring are not HAP emissions , and, therefore, are outside the scope of th e pulp and paper subpart S RTR . The reported HAP emission rates that PTPC provided for the ASB in the ir pulp and paper Part I IC R survey response are: 48.6 tpy methanol, 9.5 tpy acetaldeh yd e , and 1.2 tpy propionaldeh yd e. Emissions estimates for the non

- HAPs MEK and TRS were not provided. The reported HAP emission rates were estimated using the EPA wastewater model WATER9 for the period from January 2, 1009 to December 31, 2009, which is somewhat more recent than the NCASIstudy cited by the commenter

. After the subpart S proposal, the mill submitted a revised acetaldeh yd e emission rate of 6.3 tp y for the ASB, which was estimated using WATER9, but based on more recent mill data from 2010 and 2011 that accounted for process improvements.105 

## 7. **Startup, Shutdown, and Malfunction 7.1**  **Authority for Removal of the SSM Exemption 80.**  **Comment:** Commenter 0218 offered th eir support of the removal of certain startup, shutd own, and malfunction exemptions, stating that all such exemptions are unlawful and must be removed. **Response :**  We acknowledge this comment and that the commenter for their support

. **81. Comment:**  Commenter 0225 stated that SSM plans are worthless without implementation. The commenter cited an incident where, in 2009, PTPC was required to present a plan for estimating emissions from the unregulated ASB/settling ponds. PTPC presented a plan , but the ponds' emissions remain unregulated. Startup

- shutdown creates some of the worst emissions from the PTPC mill. One of the units is said to cycle two times daily to save energy
. That's a laudable goal, but the rules were designed for a few times annuall y. If the pollution increase from shutdown

- startup is worse in terms of pollution than the benefit of saving energy , then nothing is gained except fuel savings. **Response :**  We acknowledge the commenter’s concern regarding SSM plans; however, f acilities will be re quired to meet the standard at all times, including during periods of startup and shutdown. Consequently , SSM plans are no longer required. The emissions from the ASB/settling ponds are regulated through the s ubpart S kraft condensates standards as discuss ed in s ection 6

. Regarding the comment that “ [o] ne of the units is said to cycle two times daily to save energy ,” we are not sure what equipment the commenter is referring to , as there are numerous different types of equipment operated at pulp and paper m ills. If the commenter is referring to an emission unit subject to subpart S, then that equipment is required to meet the current standards at all time s . I f it does not, it must record an exceedence. **82. Comment:**  EPA’s Regulatory Authority

. Commenters 0162 and 0172 argued that EPA does not have authority t o amend existing MACT standards to make them more stringent. The commenter s stated that the proposed SSM provisions are changes to existing MACT standards that EPA promulgated previously pursuant to CAA se ctions 112(d)(2) and (3) for the NESHAP category . According to the commenter s , the C AA does not contemplate EPA returning to previously

issued MACT standards to fill “gaps” or re

- determine the MACT “floors.” The commenter s asserted that Congress instead es tablished two distinct procedures for establishing standards more stringent than the original MACT standards: the 8

- ye ar review for new developments in practices, processes, and control technologies under CAA section 112(d)(6), and the review of MACT stand ards to determine whether more stringent limitations are necessary to protect human health under the CAA section 112(f)(2) “residual risk” review. Commenter 0162 acknowledged that EPA did not invoke its section 112(d)(6) authority to support the proposed S SM provisions (76 FR 81328), but argued that, even if it had, section 112(d)(6) does not provide broad authority to reconsider aspects of previously issued MACT standards unrelated to “developments in practices, processes, and control technologies.” The106

co mmenter concluded that EPA cannot simply revisit and redo a MACT determination long after it has been issued, which the commenter said EPA attempted to do with the proposed SSM p rovisions. The commenter argued that EPA cannot merely change its mind about what standards are required to comply with CAA sections 112(d)(2) and (3), nor can it recalculate a MACT “floor” based on subsequent performance. Cf. NRDC v. EPA , 529 F.3d 1077, 1084 (D.C. Cir. 2008) (rejecting contention that CAA section 112(d)(6) requires EPA to “start from scratch” and develop new MACT standards). According to commenter 0162, reassessing existing NESHAPs now, that were based on the MACT “floor” ye ars ago, and imposing more stringent requirements, would be inconsistent not only with the st atute’s careful provision of technology

- review and residual

- risk authority to follow establishment of MACT standards, but also with Congress’s desire for finality evident in the judicial review provisions of CAA section 307(b). The commenter noted that challenges to MACT standards need to be raised within 60 day s of their promulgation. The commenter maintained that this provision ensures that regulated entities, EPA, and the public know what emission limitations will apply to a source, rather than having th ose limitations be subject to flux. The commenter pointed out that, in the current case, facilities regulated by the NESHAPs long ago made capital investment decisions and developed and honed their operating procedures to meet the existing MACT standards. According to the commenter, the CAA does not allow EPA simply

to revisit the anal ys is and decisions involved in developing emission standards that meet the requirements of CAA sections 112(d)(2) and (3). Commenter 0162 further argued that, even if EPA did have authority to go back and change the existing MACT standards, it would have to justify wh y the decisions reflected in the current standards are wrong and why the new standards meet the required criteria that EPA must satisfy in issuing MACT standards under CAA sections 112(d)(2) and (3). According to the commenter, EPA has not made either showing in the proposed rule. The commenter stated that EPA also would be required, under CAA section 112 and EO 13563, to assess the costs and benefits of eliminating the SSM provisions in the current subpart S standards. The commenter noted that EPA made no attempt to assess the costs and benefits or even identify what changes pulp and paper mills might make to their facilities in response to the elimination of the SS M provisions. Another commenter (0 164 ) contended that the approach EPA is taking fails to account adequatel y for emissions that occur during SSM periods. The commenter stated that EPA based its actions on an incorrect reading of the D.C. Circuit Court ’s Si erra Club v. EPA decision (551 F.3d 1019 (D.C. Cir. 2008), cert. denied, 130 S. Ct. 1735 (2010)), and on unreasonable or insufficiently

supported assumptions about SSM events and emissions during SSM periods. According to the commenter, EPA has proposed to change regulations that have been in place for many years and whose SSM provisions were never challenged in court, without any demonstration that it has legal authority to do so and without any apparent factual anal ys is of the statutory criteria for stand ard

- setting under section 112. C ommenter 0164 stated that EPA has for decades recognized, in technology

- based standards under the CAA and other statutes, that in many cases it is not feasible with an identified technology

to achieve the same emission limit ations during SSM events as have been established for normal operations. Historicall y, EPA has , therefore , applied different107

requirements during SSM events. The EPA has not justified departing from that practice in the p roposed r

ule. The EPA has also not m ade an y attempt to demonstrate that the amended standards it propos ed reflect the performance actually achieved b y the best

- performing existing sources that formed the basis for the current s ubpart S standards or, alternatively , that they meet the statutory criteria for establishing beyond

- the

- floor MACT standards. C ommenter 0164 pointed out that the provisions in the current s ubpart S regulations that exempt emissions during SSM events from compliance with numerical emission limitations derived for normal operations, or that limit the duration of SSM events that result in emission s higher than the emission limitation for normal operations, were developed by EPA based on the performance of facilities identified as the “best performers” when EPA promulgated t he current s ubpart S standards. The EPA cannot now simply disavow its conclusion that even “best performers” will exceed the emission standards established for normal operations during SSM events. **Response :**  From M ineral W ool /W ool F iberglass comment p. 23 draft response At proposal , we explained that the D.C. Court had recently vacated the SSM exemption contained in §§ 63.6(f)(1) and 63.6(h)(1) that are part of the section 112 regulations commonly referred to as the GP rule. Sierra Club v. EPA , 551 F.3d 1019 (D.C. Cir. 2008) cert. denied, 130 S. Ct 1735 (2010). We further explained that, when incorporated into section 112(d) regulations for specific source categories, these two provisions exempt sources from the requirement to comply with otherwise applicable MACT standards during p eriods of SSM. We also explained that because the p ulp and p aper NESHAP relie s on the GP rule for SSM provisions , we were proposing to set standards that appl y during startup and shutdown periods for this source category

. ( 76 FR 813 45

- 81346 ). The EPA does not claim that the Sierra Club case constrains its authority to prescribe unique standards for SSM periods. Rather , EPA’s view is that this decision calls into question the legality

of source category

- specific SSM exemptions in rule s promulgated pursuant to section 112. Based on M

ineral W ool /W ool F iberglass comment p. 24 draft response. Further, i n Medical Waste Institute v. EPA, 645 F. 3d 420, 425

- 27 (D.C. Cir. 2011), the D.C. Circuit Court held that EPA may

permissibly

amend improper MACT determinations, including amendments to improperly

promulgated floor determinations, using its authority under section 112(d)(2) and (3). The absence of standards for HAP emitted during SSM is not proper. National Lime, 233 F. 3d at 633

- 34; s ee also Medical Waste In stitute, 645 F. 3d at 426 (resetting MACT floor, based on post
- compliance data, permissible when the originally

- established floor was improperly established, and permissibility of EPA’s action does not turn on whether the prior stan dard was remanded or vacated). Similarly , the D.C. Circuit Court ’s December 9, 2011 decision in Portland Cement Ass’n v. EPA ( D.C. Cir. No. 10

- 1358) confirms that EPA is not constrained by section 112 (d)(6) , and it may reassess its standards more often, in cluding revising existing floors if need be. The commenters are , thus , incorrect that section 112 (d)(6) provides the exclusive authority to address standards that appl y during SSM events. Here, EPA adopted no MACT standard at all for HAP emitted during SSM , an approach soundl y rejected by the D.C. Circuit Court in National Lime, 233 F. 3d at 633

- 34. Consequently , we have revised the standards so the emission limits of the rule appl y at all times, including during periods of SSM.108

Specific for P&

P Contrary

to the commenter 0162 ’s assertion that EPA ignored the costs of the SSM revisions, EPA’s proposal cost anal ys is included a one

- time cost to revamp existing recordkeeping s ys tems to be consistent with the proposed revisions to the startup and shutdown provisi ons, and included costs for asserting an affirmative defense. These costs were derived from the Paperwork Reduction Act (PRA) supporting statement developed for proposal. 123 , 124 These costs have also been included in the final cost analy sis and supporting statement for the subpart S final rule

. **83. Comment:**  Consistency with Sierra Club v. EPA

. Commenter s 0162 and 0172 argued that EPA’s proposed requirement that sources must meet the same emission limitations during SSM is not required by

case law and is inconsistent with past EPA practice and judicial interpretations of NESHAPs and NSPS. The commenter s stated that EPA has recognized for decades that it is often unreasonable to re quire sources to meet technology

- based emission standards, such as NSPS promulgated under CAA section 111, during SSM periods ( § 60.8(c)). The commenter s contended that this understanding has been a critical piece of most MACT standards as well, through inc orporation b y reference of the NESHAP GP SSM requirements, inclusion of specific provisions for SSM events in the categorical MACT standards, or both. Despite that fact, the commenter s noted that EPA proposed that the emission limitations in subpart S issu ed under CAA section 112 (which is modeled in part on section 111) would now be applicable at all times, even during SSM events ( e.g. , proposed sections 63.443 and 63.459). Commenter 0162 rejected EPA’s suggestion that its treatment of excess emissions during SSM events in the proposed standards is appropriate, even “required,” in order to make the standards “consistent with” the D.C. Circuit Court ’s decision in Sierra Club v. EPA , 551 F.3d 1019 (D.C. Cir. 2008), cert. denied, 130 S. Ct. 1735 (2010), which vacated the exemption 125 for excess emissions during SSM events contained in the 40 CFR Part 63, subpart A GP for emission standards for hazardous air pollutants under CAA section 112 (76 FR 81345). The commenter argued that the D.C. Circuit Court ’s Sierra Club decision does not compel or even support EPA’s adoption of the proposed SSM p rovisions, based on the following reasons. First, commenter 0162 noted that the Sierra Club decision interpreted the NESHAP GP and did not by

its terms address what EPA may o r may not include in category

- specific MACT standards. Second, the commenter noted that the Sierra Club decision did not say that the same emission limitations that EPA has derived for normal operations must also apply during SSM events , and the decision d oes not preclude EPA from applying different standards during SSM events than appl y during normal operations. The commenter noted that the Sierra Club panel’s holding only

said that “there must be continuous section 112

- compliant [MACT] standards” (551 F.3 d at 1027). According to the commenter, the Sierra Club opinion noted that the definition of

123 See memo randum from T

. Holloway, K . Hanks, and C

. Gooden , RTI , to J

. Bradfield and B. Schroc k, EPA, titled Costs and Environmental and Energy Impacts for Subpart S Risk and Te chnology Review , November 17, 2011, in the docket for the subpart S rulemaking. 124 See U.S. EPA, Supporting Statement: NESHAP for Pulp and Paper Production (40 CFR Part 63, Subpart S) (Proposed Amendments) , Novem ber 2011. 125 According to commenter 0162, w hile the D.C. Circuit ( and EPA in the preamble to the proposed r ule) referred to the provision vacated in the Sierra Club decision as an "exemption" from HAP standards during SSM events, in fact other portions of the NESHAP G P impose various requirements that apply to sources during SSM events (including the obligation to minimize excess emissions), and in anticipation of and following SSM events (including requirements to prepare a plan to address SSM events and to report SSM events).109

“emission standard” in CAA section 302(k) includes the broad phrase “any requirement relating to the operation or maintenance of a source to assure continuous emis sion reduction,” and stated that it suggests that EPA can establish MACT standards consistent with CAA section 112 “without necessarily

continuously

appl yi ng a single standard.” 126 Commenter 0162 argued that there is ample precedent for EPA appl yi ng a different standard during SSM events. The commenter noted that the definition of “emission limitation” and “emission standard” in CAA section 302, which “limits the quantity , rate, or concentration of emissions of air pollutants on a continuous basis”

—language which the D.C. Circuit Court considered dispositive in interpreting EPA’s standards

- setting authority under section 112

— has been in the statute since 1977. Throughout that time, the commenter stated, EPA has not required sources to meet during SSM events th e CAA section 111 NSPS emission limitations established for normal operations ( § 60.8(c)). The commenter pointed out that Congress had, in fact, enacted the continuous basis language in section 302(k) knowing that EPA’s emissions standards under section 111 exempted SSM periods. Commenter 0162 asserted that there is nothing in the legislative history

of the 1977 amendments to the CAA that suggests Congress intended to overturn that practice. 127 The commenter also pointed out that court decisions both before an d after the CAA Amendments of 1977, some of which the commenter cited below, have affirmed the appropriateness of including special SSM provisions in standards issued under section 111

— despite the “continuous basis” language in the definition of “emission limitation.” Similarly , the commenter noted that there is nothing in the legislative history of the CAA Amendments of 1990 that suggests Congress meant something completely different when it used the same defined

126 See 551 F.3d at 1027. “Indeed, this reading is supported by the legislative history of section 302(k).” Id. See also id. at 1021 (“accepting that ‘continuous’ for purposes of the definition of ‘emission standards’ under CAA section 302(k) does not mean unchanging”); id. (referring to “the CAA’s requirement that some section 112 standard apply continuously”) (emphasis added). Commenter 0162 stated that, since it was addressing only a generic SSM exemption, the Sierra Club decision did not conside r whether EPA, in the context of individual categorical standards, could determine that it is infeasible to apply the same limits, or any limits on the mass or concentration of pollutants emitted at all, during SSM events, or that it would lead to absurd r esults to do so. 127 Commenter 0162 argued that the “continuous basis” language inserted in 1977 related to a debate in Congress about whether sources should be allowed to use temporary or intermittent pollution control technologies, as the D.C. Circuit reco gnized in Sierra Club v. EPA , 551 F.3d 1019, 1027 (D.C. Cir. 2008), cert. denied, 130 S. Ct. 1735 (2010), citing Kamp v. Hernandez , 752 F.2d 1444, 1452 (9th Cir.1985). See also Conference Report on H.R. 6161 (the CAA Amendments of 1977), H. Rep. No. 95

- 564 (August 3, 1977) at 129 (requirement to use “continuous emission controls” “clarifies that intermittent or alternative control measures are not permissible means of compliance”), 172; S. Rep. No. 94

- 717 (March 29, 1976) at 78 (definition of “emission limi tation” being amended to clarify that “[i]ntermittent controls or dispersion techniques are unacceptable as a substitute for continuous control of pollutants” and contrasting intermittent controls, which vary based on predicted changes in pollutant dispers ion due to meteorological predictions, with continuous controls such as flue

- gas cleaning equipment); see also Nat’l Lime Ass’n v. EPA , 627 F.2d 416, 434 n.54 (D.C. Cir. 1980) (“The ‘intermittent’ controls that concerned Congress were any of those which entailed temporary reductions in emissions when weather conditions were poor.”). According to commenter 0162, the language about “continuous reduction” in the definition of “emission standard” did not address w

hat emission limitations apply during SSM period s, nor EPA’s established practice of exempting excess emissions during SSM events from the performance standards applicable to normal operations. The commenter stated that, in fact, the legislative history indicates Congress was aware that alternative emis sion limitations might at times be necessary, even though the emission limitations were established based on the capability of “continuous controls” like scrubbers. See, e.g. , S. Rep. No. 94

- 717 at 78 (“It is recognized that the source controls may not be available to achieve the full reduction required of a particular source under particular circumstances. In such case, supplementary programs can and should be developed. But this flexibility occurs only after imposition of the continuous emission limitatio n.”).110

terms, “emission standard” and “emission li mitation,” in directing EPA to establish MACT standards. Third, commenter 0162 noted that the Sierra Club decision did not address whether EPA could use a “design, equipment, work practice or operational standard,” as authorized under CAA section 112(h) an d included in the definition of “emission limitation” and “emission standard” in CAA section 302(k), in lieu of a numerical emission limitation during SSM events. The commenter further noted that EPA told the Court that the GP SSM exemption struck down in Sierra Club was not an alternative standard based on the work practice standard authority. See 551 F.3d at 1028. According to the commenter, EPA argued in that case that section 112(h) was in fact irrelevant to its authority to exempt excess emissions duri ng SSM events. Id. at 1030 (Randolph, J. dissenting). As a result, commenter 0162 stated, EPA cannot hide behind the Sierra Club decision as a justification for ignoring an inability of even the “best performers” to achieve during SSM events the emission l imitations that EPA has established for normal operations. The commenter further stated that the approach EPA propos ed would not establish the “continuous section 112

- compliant standards” that the Sierra Club decision concluded are required. See 551 F.3d at 1027. Commenter 0162 noted that, under CAA section 112(d)(2), MACT emission standards must be “achievable.” The commenter further noted that, if EPA sets the emission standards based on the “best performing 12 percent of units in the category” (the MACT “floor”), those limitations must on average be “achieved” by the best performers (CAA section 112(d)(3); Sierra Club v. EPA (standards based on the MACT “floor” must be achievable “under the worst foreseeable circumstances”). Commenter 0162 stated that an emission limitation that applies during SSM events does not meet the requirement of CAA section 112(d)(2) that “emission standards” under that section be “achievable , ” if in fact EPA has not demonstrated that the limitation is “achievable” with available t echnology , “taking into consideration the cost of achieving such emission reduction, and an y non - air quality

health and environmental impacts and energy requirements.” The commenter similarly

noted that an emission limitation that applies during SSM events has not been demonstrated to be “achieved” b y the best

- performing 12 percent of units in the category under CAA section 112(d)(3) unless EPA can show that those best performers actually meet that emission limitation during SSM events. According to the commenter, the proposed rule would not establish “continuous section 112

- compliant standards” because, as discussed below, EPA has not demonstrated that the emission limitations in the existing MACT standards, if they also applied during SSM events, would comply with section 112 when applied to SSM periods. Commenter 0162 asserted that this plain

- language reading of the applicable statutory requirements is echoed by extensive case law. According to the commenter, the courts have long recognized that a “technol ogy based standard discards its fundamental premise when it ignores the limits inherent in technology .” NRDC v. EPA , 859 F.2d 156, 208 (D.C. Cir. 1988). As an example, the commenter cited the D.C. Circuit Court decision in Portland Cement Ass'n v. Ruckelsh aus , 486 F.2d 375, 398 (D.C. Cir. 1973), a decision reviewing standards under CAA section 111, which the commenter said recognized that “‘start

- up’ and ‘upset’ conditions due to plant or emission device malfunction, is an inescapable aspect of industrial l ife and that allowance must be made for such factors in the standards that are promulgated.” Id. at 399. As a111

second example, the commenter cited Essex Chem. Corp. v. Ruckelshaus , 486 F.2d 427, 432 (D.C. Cir. 1973), cert. denied, 416 U.S. 969 (1974), anoth er section 111 case, in which the C ourt held that SSM provisions are “necessary to preserve the reasonableness of the standards as a whole.” Id. at 433. The commenter further cited National Lime Ass’n v. EPA , 627 F.2d 416 (D.C. Cir. 1980), another case rev iewing emission standards promulgated under CAA section 111, in which the Co urt held that the analogous CAA requirement that NSPS be “achievable” means that the standards must be capable of being met “on a regular basis,” including “under most adverse circ umstances which can reasonabl y be expected to recur,” including during periods of SSM. 627 F.2d at 431 n.46. According to commenter 0162, courts have reached a similar conclusion when considering the analogous CWA requirements that EPA establish technology

- based effluent limitations based on the best available control technology . The commenter noted one such case, in which the 9 th Circuit C ourt held that, where EPA knew that there would be periods where a discharge r, even with “exemplary use of” the identified best technology , would exceed the effluent limitations because of conditions “beyond the control of the permit holder,” EPA had violated the CWA by

failing to provide an “upset provision” to address those peri ods. Marathon Oil Co. v. EPA , 564 F.2d 1253, 1273

- 74 (9th Cir. 1977). The commenter also cited NRDC v. EPA , 859 F.2d at 207, distinguishing between technology

- based effluent limitations, where some provision for “upsets” is required, and water

- quality

- base d effluent limitations, which are tied to achieving water quality s tandards rather than based on available technology, and , therefore , need not include an upset provision. 128 According to commenter 0162, the 1977 CAA Amendments support the conclusion that em ission standards need to deal with the inability of a source to meet the normal emission limitations during particular circumstances. The commenter further noted that the National Lime Ass’n decision discussed above, which relied in part on the cases EPA r eferenced in the preamble, and which directly addresses the need for emission limitations that address reasonably anticipated adverse circumstances, post

- dates the CAA Amendments of 1977 by 3 years. According to commenter 0162, the Sierra Club decision doe s not prevent EPA from adopting emission standards for SSM periods that are different from those required during periods of normal operation, nor does it mean that EPA is barred from using a “requirement relating to the operation or maintenance of a source to assure continuous emission reduction” as the emission standard that applies during such events (551 F.3d at 1027). According to the commenter, the Sierra Club decision only rejected EPA’s assertion that it had discretion to

128 According to commenter 0162, he Weyerhaeuser Co. v. Costle decision that EPA cites in the preamble to the proposed rule, 590 F. 2d 1011 (D.C. Cir. 1978), does not support EPA’s position (76 FR 72535). The commenter noted that, in that case, the cou rt was discussing a “technology forcing” standard, rather than one, like MACT, that is to be based on w

hat is already being “achieved” or has been demonstrated to be achievable. The commenter further noted that the SSM events that EPA acknowledges are expe cted to occur at sources subject to the proposed standards are a far cry from the “‘uncontrollable acts of third parties,’ such as strikes, sabotage, operator intoxication, or insanity” that the Court was considering in the passage quoted by EPA, (76 FR 75 35, col. 1). The commenter pointed out that industry is not requesting that the MACT standards provide relief from numerical emission limitations during those unusual types of events. The commenter also noted that the Weyerhaeuser decision, perhaps most im portantly, came long before NRDC v. EPA , 859 F.2d 156 (D.C. Cir. 1988) w hich, the commenter noted above, affirmed the need for an upset provision to address circumstances where compliance with effluent limitations is impossible through no fault of the permittee, and which endorsed Marathon Oil

.112

decide not to impose any emi ssion standard covering SSM periods ( Id. at 1027

- 28, 1030 (noting that EPA was not claiming that the GP SSM exemption was either an emission standard under CAA section 112(d) or a design, equipment, work practice, or operational standard under section 112(h)). 129 C ommenter 0162 concluded that, despite EPA’s implications to the contrary , the Sierra Club decision expressly

recognized that different standards, including non

- numerical standards, may (and in some cases must) apply during non

- standard operating con ditions, such as SSM. Commenters 0163 and 0212 also disagreed that the court decision requires the EPA to set numerical emission limits for startup or shutdown periods. Commenter 0163 noted the Sierra Club decision [ Sierra Club v. EPA , 551 F.3d 1019 (D.C. Cir. 2008), cert. denied, 130 S. Ct. 1735 (2010)] vacated the broad emission standard exemption during SSM events contained in the 40 CFR p art 63, s ubpart A GP . Commenter 0163 held that the court decision did not say that the same emission limitations that EPA has derived for normal operations must also apply during SSM events, and , therefore , does not preclude EPA from appl yi ng different standards during SSM events than standards that a pply during normal operations. C ommenter 0163 referred EPA to detailed comments on this issue on the proposed NESHAP modification s for the Mineral Wool and Ferroalloy s industries by ad hoc SSM Coalition, to which the commenter is affiliated as a member of American Wood Council. Commenter 0 164 stated that applying the same emission standards even during SSM periods is not compelled by the statute nor by

applicable case law, including the Sierra Club v. EPA decision. The commenter (0164) provided several options for setting MACT standards for such periods, including establishing a design, equipment, work practice, or operational standard under CAA sec tion 112(h)

. **Response :**  Based on M

ineral W ool /W ool F iberglass comment p. 25 draft response As explained earlier, we are setting standards that a pply during startup and shutdown periods in response to the decision vacating pertinent provisions in the GP rule. We do not claim that the Sierra Club decision constrains our authority to prescribe unique standards during SSM periods. But there must be a basis for our determination to prescribe standards other than MACT standards during those events. Moreover, section 112(h) allows EPA to use work

- practice standards instead of an emissions floor “if it is not feasible in the judgment of the Administrator t o prescribe or enforce an emission standard.” Under section 112(h)(2)(B) , it is “not feasible” to set an emission standard when “the application of measurement methodology to a particular class of sources is not practicable due to technological and economi c limitations.” Thus, section 112(h) “allows EPA to substitute work practice standards for emission floors only if measuring emission levels is technologicall y or economicall y infeasible.” Sierra Club v. EPA , 479 F. 2d 875, 880 (D.C. Cir. 2007).

129 According to commenter 0162, the statement in the majority opinion that “Congress gave no indication that it intended the application of MACT standards to vary based on different time periods,” 551 F.3d at 1028: (1 ) is contradicted by other statements in the opinion, referenced above, that a MACT standard need not continuously apply a single emission limitation, (2) is dicta , because that was not the situation presented by the challenged regulations and argued by EP A, (3) ignores the extensive case law about technology

- based limitations referenced above, and (4) does not in any event say that the CAA precludes EPA from adopting different emission limitations that apply during SSM events.113

Here, we do not have a basis to prescribe work practice standards. As discussed in detail in Section 7.2, we have reviewed the information available to us regarding startup and shutdown periods , and we believe that the expected startup and shutdown emissions (as in dicated through the continuous compliance requirements implemented for s ubpart S) are not likely to cause a violation of the standards. We also found no evidence which suggested emissions were higher during startup or shutdown that would indicate a need for an alternate standard for these periods. The EPA is , therefore , promulgating the same standards that appl y during normal operation for the pulp and paper industry fo r periods of startup and shutdown. Contrary to the commenter’s argument, we believe that the standards that appl y during startup and shutdown periods will establish “continuous section 112

- compliant standards” that the Sierra Club decision concluded are re quired. Further, the relevance of Portland Cement and Essex Chem. Corp. is questionable in light of subsequent case law and the 1977 amendments to the CAA ’s definition of emission standard , requiring that such standards be continuous. Further, the NRDC ca se interprets provisions of the CWA that are different in nature than provisions governing standards under section 129 of the CAA . In any

event, even if those cases are relevant, EPA‘s overall approach to malfunction events in this rule, including the promulgation of an affirmative defense, is consistent with the approach set forth in EPA‘s 1972 proposed rules cited favorabl y in Portland Cement and Essex Chemical , in that both EPA‘s approach today and in 1972 impart a construction of
“ reasonableness ” to the standards as a whole and adopts a more flexible system of regulation than can be had b y a s ys tem devoid of “ give. ” Portland Cement at 399. Portland Cement and Essex criticized EPA regulations that contained no specific provisions to address malfunctions and EPA ’ s assertion that malfunctions would be dealt with by the informal exercise of discretion in the Agency ‘s enforcement activities. Those decisions did not require exemptions or less stringent standards for malfunction events as the commenter suggests. The EPA‘s approach to malfunctions goes further than reliance on the informal exercise of enforcement discretion , in that it includes regulatory provisions establishing an affirmative defense to civil penalties for exceedances of emission limits that are caused b y malfunctions. As noted above, the NRDC v

. EPA , 859 F. 2d 156, 207 (D.C. Cir. 1988) case cited by the commenter is not on point , and the discussion of technology

- based standards is dicta . Nevertheless, EPA‘s approach to malfunctions is consistent with NRDC

. NRDC does not require exemptions or less stringent standards for malfunctions either. Further, the regulatory affirmative defense being included in the subpart S final rule is consistent with the case cited in the NRDC decision; Marathon Oil Co. v. EPA , 564 F.2d 1253, 1272 (9th Cir. 1977). The court in Marathon Oil held that EPA must formalize its approach to upsets under the CWA . The affirmative defense does so. See , Mont. Sulphur & Chem. Co. v. United States EPA , 2012 U.S. App. LEXI S 1056 (5 th Cir. Jan 19, 2012) (in rejecting industry

argument based on Marathon Oil that reliance on the affirmative defense was not adequate, the court stated “[h]owever, here the EPA does not rel y on enforcement discretion alone, but specifically

promulgates an aff

irmative defense in the FIP, which clearl y defines the requirements to avoid penalties.”). But see, Weyerhaeuser v

. Costle , 590 F.2d 1011, 1057

- 58 (D.C. Cir. 1978) (holding that an informal approach is adequate). In fact, the affirmative defense comports w ith the court‘s suggestion in Marathon Oil that EPA place the burden on the permit holder of producing the relevant data and proving that the upset could not have been prevented. Id

.114

**84. Comment:**  General Provisions

. Commenter 0162 noted that, in the preamb le on page 81346 of the proposed rule, EPA requested comments “ on whether there are an y such provisions that we have inadvertently incorporated or overlooked” in reference to the proposed changes in SSM language. While the commenter disagreed with the prop osed changes noted above, the commenter reviewed the rule and was not aware of any cases where the proposed rule was inconsistent with EPA’s intent. **Response :**  We thank the commenter for taking the time to review the GP references. We have made several ch anges to the final rule language related to SSM, including:

 Clarification that the affirmative defense provisions apply to violations of standards due to malfunctions, as defined in 40 CFR 63.2 ;  Elimination of the 2-day notification requirement;
 Replacement of the 45

- day affirmative defense reporting requirement as follows: “ This affirmative defense report shall be included in the first periodic compliance, deviation report or excess emission report otherwise required after the initial occurrence of the violation of the relevant standard (which may be the end of any applicable averaging period). If such compliance, deviation report or excess emission report is due less than 45 day s after the initial occurrence of the violation, the affirmative defe nse report may be included in the second compliance, deviation report or excess emission report due after the initial occurrence of the vio lation of the relevant standard

. ” ; and
 Elimination of the 30

- day extension for submitting a written affirmative defen se report
. 

### 7.2 **Startup and Shutdown 85.**  **Comment:** Commenter s 0162 and 0172 argued that EPA must fully justify applying the same emission limitations during startup and shutdown as during normal operations. The commenter s noted that, in the preamble to the proposed rule, EPA did not say that it was precluded from adopting different emission limitations that would apply during startup and shutdown periods. According to the commenter, EPA instead stated that “ [n] othing in the record suggests that the operation s (and attendant emissions) are significantly different during startup or shutdown than during normal operations. Periods of startup, normal operations and shutdown are all predictable and routine aspects of a source’s operations ” (76 FR 81346). According to commenter 0162, this falls far short of the “reasoned anal ys is” that an agency must supply

before changing a prior decision. See, e.g. , Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co. , 463 U.S. 29, 42 (1983) (“an agency changing its course b y repealing a rule is obligated to supply a reasoned analy sis for the change”); Williams Gas Processing

- Gulf Coast Co. v. FERC, 475 F.3d 319, 326 (D.C. Cir. 2006) (“it is axiomatic that agency action must either be consistent with prior action or offer a reasoned basis for its departure from precedent”) (internal quotation marks and brackets omitted). The commenter noted that EPA, in promulgating the existing subpart S regulations, specifically considered the need for special provisions to address higher em issions occurri ng during startup and shutdown as reflected in EPA’s decision to include startup and shutdown periods in the excess emission provision for condensate treatment but not for LVHC and HVLC NCG controls (63 FR 18529

- 30). According to the comment er, if EPA wishes to change its prior determinations with respect to startup and shutdown provisions, it would have to explain how it erred in arriving at those115

prior determinations, or how available information has changed since that time. Commenter 0162 argued that the cursory

treatment of this issue in the preamble to the proposed rule is not sufficient justification for reversing EPA’s prior determinations with respect to startups and shutdowns. The commenter indicated that there is no indication that E PA has anal yz ed sufficient data on emissions during startup and shutdown to justify its conclusion, as opposed to merel y assuming it is correct. According to the commenter, EPA cannot conclude that special provisions for emissions during startup and shutdo wn are not needed based on “mere speculation.” See NRDC v. EPA , 859 F.2d 156, 210 (D.C. Cir. 1988). The commenter argued that the default assumption must be that they are needed. The commenter noted that EPA, in establishing the existing subpart S standard s, previously determined that the best performers on which the MACT standards were based may not achieve those standards during startup and shutdown. The commenter asserted that EPA cannot simply change its mind about this sort of assessment without providing a factual anal ys is supporting EPA’s new conclusion that MACT standards can be achieved during all startup and shutdown periods as well. See, e.g. , Transactive Corp. v. United States , 91 F.3d 232, 237 (D.C. Cir. 1996). The commenter doubted that emissio ns data representative of startup and shutdown events exist that would be sufficient for EPA to conduct a reasoned anal ys is to demonstrate the achievability of the MACT emission limits established for normal operations during startup and shutdown events (c ontrary to EPA’s prior rulemaking), because of likel y limitations in the available data. According to commenter 0162, there are several reasons why adequate data often do not exist to allow EPA to conclude that an emission limitation established for normal operations also represents the performance of the best demonstrated control technology during startups and shutdowns. First, to the extent that emissions data come from required performance tests, the commenter noted that applicable regulations generally prohibit testing during SSM conditions, and require that data not be used for compliance purposes if obtained during a startup, shutdown, or malfunction event. 130 Second, to the extent that EPA evaluates emissions data collected through continuous monitoring, the commenter noted that applicable regulations often require or allow the source to exclude from its reporting of continuous monitoring data those data reflecting SSM conditions. Finall y, the commenter noted that aty pical pollutant concentrations and other stack conditions that may exist during startup and shutdown can result in the continuous monitoring sy stem producing unusable data because the pollutant concentration may be outside of the monitoring equipment’s span or the stack conditions may not meet monitoring sy stem quality assurance/quality

control ( QA/QC ) parameters, or the data may be truncated on the high end because of limitations of the monitoring equipment. 131 Commenter 0162 c oncluded these factors would cause EPA to understate emissions occurring during startup and shutdown. The commenter also cited an additional problem

—that it can be unclear whether a condition that leads to excess emissions should be characterized as a startup or shutdown event or a malfunction event. According to the commenter, without a clear demarcation (both in EPA regulations and in practice), EPA could be analyzing data sets that

130 Commenter 0162 cited as an example the NESHAP GP , specifically the statement that performance tests can only be conducted under representative conditions and which specify that: “Operations during periods of startup, shutdown, and malfunction shall not constitute representative cond itions for the purpose of a performance test....” 40 CFR 63.7(e)(1); see also 40 CFR 60.8(c) (same for performance testing for NSPS). 131 Commenter 0162 noted that data from periods when the monitoring system is outside of control limits are required to be exc luded from emission averages under the NESHAPs General Provisions. See 40 CFR 63.8(c)(7)(ii).116

exclude events that were treated as malfunctions , but that EPA would say should be included in calculating average performance as startup or shutdown conditions. According to commenter 0162, while EPA may not be able to calculate average HAP emissions during startup and shutdown periods, EPA certainl y has available to it inform ation that indicates that pulp and paper mills using the MACT “floor” technologies and complying with the s ubpart S standards during normal operations would not be able to comply during at least some startup and shutdown conditions . As an example, the comm enter cited the requirement in §63.443(c) that emissions from specific processes be vented into a closed

- vent sy stem and routed to a control device. According to the commenter, because these gases can be explosive, they cannot be routed to an incineration device unless the concentration and volume of the vent gas and the conditions in the incineration device meet certain conditions necessary to prevent explosions (“permissives”). The commenter noted that when pulping processes are starting up or shutting do wn, the NCGs generated by the process may

not meet permissives for a period of time, and the NCGs will have to be vented for safety reasons due to the increased variations in the process during starting up and shutting down. The commenter indicated that same thing is true of startup or shutdown of a primary or backup incineration device (which may be a boiler, recovery furnace, lime kiln, or other combustion unit that is also part of the pulp mill operation), during which the conditions in the incineration device may not meet permissives for a period of time , and it will be necessary to by pass the NCGs around that device to avoid explosion. As another example, the commenter cited the requirements in § 63.453 to monitor operating parameters in lieu of, or in a ddition to, monitoring emissions. According to the commenter, operating parameters established to represent proper operation during normal operating conditions will often be different from the operating parameters that appl y when a unit is being started up or shut down. Similarly , c ommenter 0172 stated that in the preamble to the proposed rule, EPA assert ed that startup and shutdown operations are as routine and predictable as normal operations and can be controlled, so that emissions are the same as duri ng routine operations. The Agency also believes that as long as control devices are started up before the process and shut down after the process is down, emissions can be controlled to the same degree as during “normal” operations. Commenter 0172 stated that EPA’s assertions do not reflect the reality of operations in heav y industrial processes , such as pulp and paper making. During startups and shutdowns, abnormal emissions may

and frequently

do occur because, by

definition, the process equipment is not i n a stable mode

–it is being started up or shut down. Process flows, temperatures and pressures are constantly

changing during the startup and shutdown process, resulting in unexpected diversions from the planned startup or shutdown procedures. These unexpe cted diversions can lead to emissions that are higher than those when the p rocess is in routine operation. Commenter 0172 noted that , even if there is a control device which has been energized and is operating normally , it may be ph ys ically

located at the end of a long piping s ys tem collecting emissions from more than one piece of process equipment (such as an incinerator collecting vent gases from an LVHC sy stem regulated under subpart S). During the unstable operating conditions that occur during startup or shutdown, it may be necessary

to vent gases directly from a process unit (such as to compensate for unexpected over

- pressurization) to prevent damage to the process equipment.117

A ccording to another commenter (0163) , EPA’s conclusion that startup and shut down periods are “predictable and routine aspects” of normal operations fails to recognize that , while timing and process steps may be for e seeable , the specific circumstances with many o f these events may

be unique. The commenter contended that EPA cannot include these events under the current or proposed s ubpart S emissions standards because they were not necessarily

considered part of the original MACT floor emission evaluation. In stead, the commenter recommended that EPA consider its decision in the Marc h 2011 final Boiler MACT rules to set work practices for startup and shutdown events, which reversed their 2010 proposed rule assumption that emission limits set for normal operating periods reflected and could legally appl y as well during these events
. In addition, c ommenter 0164 stated that EPA does not appear to have performed a scientific anal ys is that would justify reversing that determination for startup and shutdown events, and , for malfunction events , EPA acknowledges that even well

- designed and well

operated mills will exceed the standards. **Response :**  As explained earlier, we do not claim that the Sierra Club decision constrains our authority

to prescribe unique standards during SSM periods. But ther e must be a basis for our determination to prescribe standards other than MACT emission limits during those events. The EPA, under CAA section 112(h) authority can also, in cases where it is not feasible to prescribe or enforce an emission standard, promul gate a design, equipment, work practice, or operational standard (or combination thereof). The phrase “not feasible to prescribe or enforce an emission standard” is defined narrowly in section 112(h)(2) to mean “ an y situation in which the Administrator det ermines 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 requirement for, or use of, such a conveyance would be inconsistent with any Federal, S tate 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. ”(emphasis added) The EPA has adopted work practice standards for startup and shutdown pe riods in other rules ( e.g. , for industrial boilers, and electric utilities) where there was process

- specific justification for work practices considering the criteria specified by CAA section 112(h). The specific work practices set forth in the industrial boiler and electric utility standards were developed for combustion processes and are not applicable for the diverse assortment of emission units subject to subpart S. Development of separate emissions standards (separate numeric limits or work practices) for startup and shutdown of pulp and paper processing equipment requires consideration of emission unit, collection sy stem, and control device operation; compliance option used; and methods for demonstration initial and continuous compliance. Although the commenters suggest that different standards should be adopted for startup and shutdown periods ( i.e. , other than the standards that apply during normal operation), the commenters have not provided specific information to indicate that separate standards ar e justified or to explain specificall y how application of the normal operational standards in subpart S would be violated during startup or shutdown (other than for periods covered b y the excess emissions allowances for NCG sy stems). T he commenters also d o not suggest any specific118

standards that could apply during startup and shutdown for the universe of pulp and paper processes regulated under s ubpart S (which offers a variety of compliance options). Commenters repeatedl y point to NCG collection sy stem ve nting as an example of why EPA should have special provisions for startup and shutdown events. The EPA views the amendments to remove the SSM exemption (through corrections to GP references) as a separate issue from the excess emissions allowances. Comment ers have indicated that the excess emissions allowances are used during normal operational time periods and that these periods of excess emissions should not be considered malfunctions. Under the subpart S amendments being promulgated, the same standards a ppl y for normal operation, startup, and shutdown , so there is no reason to distinguish between normal operation, startup, and shutdown in the excess emissions allowance provisions. (Only malfunction will be handled separately through availability

of the af firmative defense provisions

. ) As noted in Section 8 of this document, we received additional information from the industry to aid in our investigation of the excess emissions allowances and will take action on these allowances at a later date. If , upon further anal ys is of the information provided by industry , we find reasons to distinguish between startup/shutdown periods and normal operations in the context of our approach for handling the excess emissions allowances, then we will address those co ncerns when we propose our findings relative to the excess emiss ions allowances. However, under the subpart S amendments being promulgated, EPA considers the SSM exemption a separate issue decoupled from the excess emissions allowances and is proceeding wi th removal of the SSM exemption. The EPA proposed (and is finalizing in the subpart S amendments ) removal of the parenthetical references to SSM from the excess emissions allowance language in s ubpart S. For the 1 percent LVHC and 4 percent HVLC allowances , the parenthetical language in §63.443( e) that allowed the SSM exemption in addition to the venting allowances has been removed from subpart S. The parenthetical language in §63.446(g) clarifying that the 10 percent steam stripper venting allowance includ ed periods of SSM has also been removed. This parenthetical language was originally

included in the rule because EPA had no information to “differentiate SSM emissions from normal stripper operating emissions ” when originall y reviewing the data that formed the basis for the 10 percent steam stripper venting allowance. (63 FR 18530, April 15, 1998) Thus, the commenter’s assertion is incorrect that EPA “ specificall y considered the nee d for special provisions to address higher emissions occurring during startu p and shutdown as reflected in EPA’s decision to include startup and shutdown periods in the excess emission provision for condensate treatment but not for LVHC and HVLC NCG controls ” (emphasi s added). We have assembled information from the 2011 pulp and paper IC R pertaining to equipment, control, and compliance demonstration methods in order to address the commenters’ concerns that EPA’s conclusion that separate standards are not needed for periods of startup and shutdown is not supported and based on “mere speculation.” The IC R contained questions designed to provide EPA with an understanding of the duration, emissions potential, work practices, and control mechanisms of startup and shutdown events for the wide variety of119

equipment used at pulp and paper mills. This information is summarized below and detailed in a separate memorandum in the docket

. 132 For emission unit startup and shutdown, the survey asked:
 Approximate duration of emission unit startup and shutdown (hours)

. [2 questions]
 Measures employed to reduce air emissions during emission unit startup and shutdown (if any)

. [2 questions]
 What marks the end of emission unit startup and beginning of normal operating conditions?
 What marks the end of normal operating conditions and beginning of emission unit shutdown?
 An optional suggestion for a standard that would apply during startup or shutdown of this emission unit

. For control device startup and shutdown, the survey asked:
 Approximate durati on of control device startup and shutdown (hours)

. [2 questions]
 Explain how control device startup and shutdown is integrated with (dependent upon) emission unit startup and shutdown

. [2 questions]
 List an y control device continuous emissions monitoring or operating parameter limits that cannot be met during control device startup or shutdown

. [2 questions]
 Measures employed to reduce air emissions during control device startup and shutdown (if an y)

. [2 questions]
 What marks the end of control device st artup and beginning o f normal operating conditions?
 What marks the end of normal operating conditions and beginn ing of control device shutdown? The I CR also contained optional questions , where respondents were asked to suggest a separate standard that c ou ld apply during emission unit and control device startup or shutdown

. No useful suggestions for separate standards were received. Responses to survey

questions asking what marks the beginning and end of normal operations for emission units and control dev ices were very site

- specific in nature. This stands to reason because mills formerly defined startup and shutdown

—in consideration of their specific equipment and operational practices

—in their SSM plans. The only conclusion we could draw from the response s to these questions is that defining the beginning and end of startup and shutdown periods in a way that makes sense for all mills in the nation would be very difficult, if not impossible. However, it would have been necessary for EPA to define the beginn ing and end of startup and shutdown if EPA were to adopt separate standards to appl y during these periods (i.e., so it would be clear which standard is applicable at any given time)

. Subpart S contains standards for:
 K raft, soda, and semichemical pulping vent gases ( § 63.443) ;  S ulfite pulping vent gases (§63.444);

132 See memorandum by K. Hanks, RTI, to J. Bradfield and B. Schrock, EPA, titled Review of Pulp and Paper Information Collection Request (ICR) Responses Pertaining to Startup and Shutdown of Subpart S Equipment , June 22, 2012, in the docket for the subpart S rulemaking.120

 B leaching vent gases (§63.445);
 C losed

- vent sy stems used to transport pulping or bleaching vent gases ( § 63.450) ; and
 K raft pulping condensates (including c losed collection system s for kraft condensates ) (§63.446). Some mills are complying with selected subpart S standards through use of the CCA or other site

- specific options ( e.g. , equivalency

- by

- permit)

. At man y mills , the technologies used for site

- specific compliance options are the same as those used to comply with the standards noted above ( e.g. , through controlling more condensates or equipment than are required to be controlled). Therefore, we believe consideration of the equipment and standards listed above (and described in detail below) provides sufficient consideration for site

- specific compliance options. While we cannot purport to having considered every single aspect of every U.S. mill ’ s equipment and operations in our consideration of the need for separate startup and shutdown standards, we do believe that we have covered the majority of mills and their equipment ty pes in our review. Site

- specific compliance approaches were set through site

- specific reviews by permitting authorities and may need to be revisited should o ur conclusions relative to startup and shutdown for the majority of equipment not address a site

- specific situation. Kraft, S oda, and Semichemical Pulping V ent G ases . We believe that mills would remain in compliance with the kraft, soda, and semichemical p ulping vent gas emission standards during emission unit or control device startup and shutdown, and we have concluded that separate standards for startup and shutdown are not necessary for pulping vent gases for several reasons. First and foremost, the sur vey data indicate that mills usually begin operation of their incineration control device prior to emission unit startup and continue operating their incineration control device until emission unit shut down has occurred. Mills implementing this practice m eet the required design standards and parameter monitoring requirements during emission unit startup and shutdown. Incineration control devices include boilers, lime kilns, recovery furnaces, or thermal oxidizers. Second, control device startup and shutdown are often addressed at pulp and paper mills through the use of backup controls. We believe that , in most cases , boilers would start up before most other emissions units because boilers provide steam and power needed to operate emissions units. Similarly , recovery furnaces often provide steam and power for emission units. Although some incineration devices may need to follow a startup sequence ( e.g. , a recovery furnace that does not begin normal operation until spent liquor is available from digesters; or a lime kiln that does not begin normal operation prior to smelt being generated from the recovery furnace and moves through the causticizing process), we note that these devices can begin to start up on auxil i ary fuels prior to processing of spent liquor ( for a recovery furnace) or calcium carbonate (for a lime kiln). Many m ills also have stand

- alone thermal oxidizers that are used as backup controls when process units such as lime kilns or recovery furnaces are used as the control device. Third, there are five separate compliance options for pulping vent gases. The two most commonly

used compliance options are based on equipment design 133 and do not involve any

133 The design

- based compliance options require mills to:121

emissions or parameter monitoring that would show mills to be out of compliance. As long as emissio ns are collected in the closed

- vent s ys tem and routed to these operational controls, then mills would be in compliance with the standards. The remaining compliance options involve firebox temperature monitoring or optional use of methanol continuous emissions monitoring sy stems ( CEMS ) . The survey data reveal than no mills are using methanol CEMS. I f an incineration control device is operational prior to emission unit startup and until emission unit shutdown is complete then there is no reason for a te mperature parameter limit to be exceeded during emission unit startup or shutdown. Although the firebox temperature parameter may be out of compliance during incineration control device startup or shutdown ( e.g. , as the incineration device warms or cools), we believe , based on the survey results , that this circumstance is being mitigated though use of backup controls or b y not starting the emission unit until the control device combustion temperature has been reached at most mills. An emergency

startup or s hutdown ( e.g. , when a “hot” backup thermal oxidizer may not be available, and the boiler or lime kiln is not an option) , which resulted in a violation of a standard, could arguabl y be considered a malfunction , and the affirmative defense provisions would b e available in this instance

. Overall , we believe the availability of multiple compliance options (of which the most frequentl y used are based on equipment design) and widespread use of backup incineration controls makes it possible for mills to comply w ith the pulping vent gas standards during startup and shutdown. Therefore, separate standards during startup and shutdown were not developed for kraft, soda, and semichemcal pulping vent gases. We acknowledge that every mill may not have backup controls available for NCG sy stems ( e.g. , HVLC sy stems), either because they have not installed closed

- vent collection ductwork to transfer vent gases to a backup incineration device or because a backup incineration device is not available. The need for separate st artup or shutdown standards at these mills is most likely mitigated through use of compliance options that are based on equipment design. Sulfite P ulping Vent G ases . Based upon the ICR results, six sulfite mills remain in operation in the U.S., including:
 Three ammonia

- based sulfite mills;
 Two calcium

- based sulfite mills; and
 One sodium

- based sulfite process collocated at a kraft mill

. These mills operate absorbers (scrubbers) for control of pulping vent gases and are required b y s ubpart S to demonstrate continuous compliance through continuous parameter monitoring of e ffluent pH (or oxidation/reduction potential ), inlet vent gas flow rate, and s c r ubber liquid influent flow rate. The scrubbers used at sulfite mills employ a typ e of fresh water ( e.g. , river water, well water) with caustic addition. Flow of fresh water to the scrubber (scrubber liquid influent rate) is not dependent on other pulping emission units within the mill (nor is caustic addition since the caustic is not coming from any pulping b y- product).

 Use a boiler, lime kiln, or recovery furnace in which the HAP gas stream is introduced with the primary fuel into the flame zone; or
 Use a boiler or recovery furnace with a heat input capacity ≥150 MMBtu/hr (44 MW) in which the HAP gas stream is introduced with the combustion air.122

Survey data reveal that scrubbers are started up and meeting required operating parameter limits before the emission unit is started up; and that the scrubbers remain in operation until the emission unit is shut down. No issues with meeting su bpart S operating parameters were identified in the I CR responses. Therefore, we have concluded that separate standards for startup and shutdown are not necessary for sulfite pulping vent gases. Bleaching V ent G ases . Bleach plants typicall y use caustic scr ubbers to reduce HAP emissions. Process waters such as white liquor, weak wash, or caustic are commonly used and recycled within bleach plant scrubbers. Scrubber blow down

- the fraction of scrubber liquid that is purged from the s ys tem and replaced by new liquid

- is either recycled in the process ( e.g. , within the bleaching or ClO 2 process) or sent to the wastewater treatment system. The ability of bleach plant scrubbers to recycle scrubbing liquid within the scrubber s ys tem serves as a buffer to reduce d ependency

of the scrubber s ys tem on other mill processes during brief periods of scrubber startup or shutdown. Startup and shutdown times reported in the ICR responses for bleach plant scrubbers were around half an hour (30 minutes). An initial performan ce test is required for bleach plant scrubbers. In addition to the 5

- ye ar repeat performance test required with the current amendments to s ubpart S, continuous compliance for bleaching scrubbers is demonstrated by continuous parameter monitoring of e ffluent pH (or oxidati on/reduction potential [ORP]), inlet gas flow rate, and s c r ubber liquid influent flow rate . Continuous monitoring of Cl 2 concentration is allowed as an alternative to continuous parameter monitoring; however, no mills reported use of Cl 2 CE MS in the survey responses . Several mills reported use of ORP instead of pH

. Fan motor amps, revolutions per minute (rpm ) , or fan on/off status are often monitored as indicators of inlet gas flow rate . The s urvey data revealed few (if any) issues where parameter limits are not met during bleaching scrubber startup and shutdown. (Where one column of a survey response suggested a parameter limit might not be met, other columns stated the opposite for the same scrubber.) Therefore, we have concluded that separate standards for startup and shutdown periods are not warranted for bleach plant scrubbers. Closed

- V ent S ys tems U sed to T ransport Pulping or B leaching Vent G ases . The s ubpart S standards for closed

- vent gas collection s ys tems contain requirements for :  Enclosures, openings, and hoods ;  Components operated at positive pressure ; and
 By pass lines that could divert vent streams containing HAPs to the atmosphere

. Mills must maintain negative pressure at enclosures, openings, and hoods. If the enclosure, opening, or hood is closed during the initial performance test, it must remain closed during operation , except for sampling, inspection, maintenance, or repairs. Compliance with these requirements is demonstrated by following a site

- specific inspection plan required in §63.454(b), where visual inspections of enclosure openings are required every 30 day s per §63.453(k)(1). Given the 30

- day frequency

of these inspections , there seems to be little chance that mills would be found out of compliance with this re quirement during startup and shutdown. We are unaware of any reason wh y enclosures, openings, and hoods would not remain closed or maintain negative pressure during startup or shutdown.123

Mills are required to operate with no detectable leaks ( less than 500 parts per million by volume [ ppmv ] of volatile organic compound s [ VOC ] above background) for collection s ys tem components operated at positive pressure. Compliance is measured with initial and annual p art 60, Method 21 leak detection tests. Even if leak d etection tests were conducted during startup and shutdown, it is not expected that startup and shutdown would change the potential for leaks beyond the potential that exists during normal operation , because gas flow volumes are likel y to be lower during st artup and shutdown

. By pass lines that could divert vent streams containing HAPs to the atmosphere are required to either:
 Operate a computer

- controlled flow indicator to monitor for presence of gas stream flow in the by pass line at least once every 15 minutes ; or  Maintain by

pass line valves that are not computer controlled in the closed position, sealed so that the valve or closure mechanism cannot be opened without breaking the seal. Compliance with these requirements is demonstrated by following the site

- specific inspection plan required in §63.454(b) , where visual inspections of enclosure openings are required every

30 day s per §63.453(k)(1). By pass line valves that are sealed during normal operation should stay

sealed during startup and shutdown (un less a seal is broken due to a malfunction event for which affirmative defense is available ) . There is no reason to expect a different standard is needed during startup and shutdown for clo sed, sealed by pass line valves. Multiple emission units feed into closed

- vent sy stems. Commenters have indicated that gas flow rate into collection sy stems (and internal sy stem pressures) can vary , as emission units are started up or shut down. Computer

- monitored by pass lines could show some safety- related venting during startup and shut down until flows within the collection sy stem are within lower explosive limit (LEL) or upper explosive limit (UEL) permissives , and flows are balanced. This saf ety- related venting is currentl y covered under the 1 and 4 percent excess emis sions allowances for LVHC and HVL C sy stems, respectively

. The need for separate startup and shutdown standards for computer

- controlled b ypass line valves can be evaluated further when EPA takes action on the excess emissions allowances. Kraft Pulping C ond ensates ( Including C losed Collection S ys tems for Kraft C ondensates)

. Kraft pulping condensates are HAP

- containing liquids that are condensed from pulping s ys tem vent streams, including condensates from digester s , turpentine recovery , evaporator s , LVHC sy st ems, and HVL C sy stem s. The LVHC and HVLC collection sy stem condensates are generated b y condensation of moisture in the closed

- vent collection s ys tems that convey the LVHC and HVLC s ys tem vent gases to a control device. The s ubpart S kraft pulping condens ate standards include standards for condensate collection and standards for condensate treatment. The kraft condensate collection standards include three options:
 Collect all named condensate streams.
 Collect all LVHC and HVL C streams plus streams that contain 65 percent of the total HAP mass from the digester sy stem, turpentine recovery s ys tem, and evaporator s ys tem feed stages.124

 Collect any

subset of the named streams that contain in total 7.2 lb of HAP per ODTP at mills that do not perform bleaching, o r 11.1 lb HAP per ODTP at mills that perform bleaching. Kraft condensates are to be conveyed in a closed collection sy stem that meets the requirements in §63.446(d) of s ubpart S for individual drain s ys tems and condensate tanks. A mill can meet the closed collection sy stem requirements in two way s:  Hardpiping ; or  Us e existing drains, but cover all openings and route all open vents through a closed

- vent collection sy stem to a control device meeting the s ubpart S NESHAP requirements for pulping s ys tem vents. Closed collection sy stems used to transport pulping process condensates containing HAPs must meet all of the individual drain sy stem requirements specified in §§63.960, 63.961, and 63.962 of 40 CFR part 63, s ubpart RR (National Emission Standards for Individual Drain Sy stems) , except that an y air vents in the collection sy stem must comply with the kraft pulping vent gas collection and HAP reduction standards in §63.443 (c) and (d) of s ubpart S. Subpart RR establishes design, operating, inspection, and monitoring requirement standards for controlling air emissions from individual drain s ys tems. The standards control emissions from individual drain sy stems using covers or seals, or hard

- piping. Subpart RR also requires inspections of water seals and closure devices for defects or damage initially and establishes repair requirements for individual drain s ys tems. The closed collection s ys tem must be visually inspected every

3 0 day s according to §63.964 of s ubpart RR. For condensate tanks, §63.446(d)(2) specifi es:  The fixed roof and all openings ( e.g. , access hatches, sampling ports, gauge wells) shall be designed and operated with no detectable leaks as indicated by an instrument reading of less than 500 ppm above background, and vented into a closed

- vent sy ste m that meets the requirements in §63.450 and routed to a control device that meets the requirements in §63.443(d); and
 Each opening shall be maintained in a closed, sealed position ( e.g. , covered by a lid that is gasketed and latched) at all times that the tank contains pulping process condensates or any HAP removed from a pulping process condensate stream , except when it is necessary to use the opening for sampling, removal, or for equipment inspection, maintenance, or repair. Compliance with the standards for the different components of closed condensate collection sy stems is based on sy stem design ( e.g. , covers, seals, or hard

- piping) , and continuous compliance is based on periodi c leak checks and inspections. Openings in the condensate liquid collection sy stem that are sealed during normal operation should also be sealed during s ys tem startup and shut down (expect, perhaps, for a malfunction or operator error). Periods of startup and shutdown are not likely to result in violation of the periodic leak check and inspection requirements. We are not aware of any reasons why separate standards for closed condensate collection sy stems would be needed for startup and shutdown periods.125

Once collected, kraft pulping condensates must be treated according to one of the following s ubpart S treatment standards:
 Recycling: Route condensates through a closed vent collection sy stems to pulping equipment controlled b y the Subpart S kraft pulping vent gas standards; or
 Route the condensates to biological treatment, steam stripper or other control device that meets one of the following equivalent requirements: o Reduce total HAP by

at least 92 weight

- percent; or o For mills without bleaching, either remove at least 6.6 lb total HAP/ODTP, or meet 210 ppmw total HAP at the contro l device outlet; or o For mills with bleaching, either remove at least 10.2 lb total HAP/ODTP, or meet 330 ppmw total HAP at the control device outlet. For the condensate recycling treatment option, the compliance demonstration would consist only

of verifyi ng that no leaks were present in the condensate closed collection sy stem, and confirming closed vent gas s ys tem and control device requirements are met. We discussed the kraft pulping vent gas standards above, and concluded that separate standards for star tup and shutdown are not warranted for kraft pulping vent gases. As also noted above, we are not aware of an y reasons wh y separate standards for closed condensate collection systems would be needed for startup and shutdown periods. Thus, it follows that separate startup and shutdown standards would not be needed for control of condensates through recycling to pulping equipment subject to the pulping vent gas standards. Mills controlling kraft condensates with steam strippers or other equipment serving the same function ( e.g. , an in

- process anaerobi c biotreatment unit, wastewater thermal oxidizer, etc. ) must perform an initial performance test for total HAP (measured as methanol) using 40 CFR p art 63 Method 305 or NCASImethod DI/MEOH

- 94.03

. Inlet and outlet testing is require d for mills complying with the percent reduction or lb/ODTP collection and re moval standards. Onl y outlet testing is required for mills complying with the ppmw condensate standards. Alternatively , measure the steam stripper methano l outl et concentration (ppmw). The ICR results reve al that only one mill is using the ppmw option (a mill with a thermal oxidizer), and this mill is not using a methanol C EMS to demonstrate compliance. Mills operating equipment other than steam strippers must pe tition the Administrator for approval of site

- specific monitoring requirements. For mills using steam strippers, s ubpart S requires that ongoing compliance be demonstrated b y continuous parametric monitoring of the process wastewater feed rate, steam feed rate and process waste water column feed temperature. Although not specified explicitly in subpart S, the steam feed rate and condensate feed temperature parameter limits are minimum limits that relate to how much heat must be applied in the steam stripper sy stem in order to strip organics into the vapor phase. The steam

- to
- feed ratio (SFR) is the stripper operating parameter with the greatest e ffect on stripper performance. This ratio is monitored through subpart S by dividing the monitored steam feed rate by the process wastewater feed rate. A larger SFR would result in more organics being stripped from the wastewater. Steam feed rate is likely automatically

controlled in conjunction with wastewater feed rate to ensure a minimum SFR is maintained.126

The I CR responses were reviewed to determine if mills reported issues with maintaining compliance with the parametric monitoring requirement s during startup and shutdown. Mills generall y indicated that stripper operation would begin after the pulping vent gas col lection and control sy stem is ready

to accept stripper off gases, and after pulping processes have operated long enough for condensates to be generated for input into the steam stripper. Some mills noted that condensates may

be sent to biotreatment for backup until the stripper is fully operational, that stripper operation does not begin until a sufficient level of condensates has been collected in the condensate tank, or that condensates must reach a specified temperature before they are sent to th e stripper. Adequate condensate tank capacity serves as a buffer between the pulping process and steam stripper ( e.g. , allowing collection of condensates for a short time while the stripper is offline or in startup/shutdown mode). Using the maximum of any ranges provided by respondents ( e.g. , for cold startup), the median startup and shutdown times for condensate strippers provided in the ICR responses (Equip detail tab) was 1 h our , wi th an average of 2 to 3 hours. No specific issues indicating the inability of mills to meet the stripper operating parameter limits during startup or shutdown were observed in the ICR responses. Therefore, we conclude that separate standards during startup and shutdown periods for kraft condensates controlled by

steam strippers are not necessary
. Mills using biological wastewater treatment to control kraft condensates must perform an initial test followed by

quarterl y sampling to determine the fra ction of methanol biodegraded. The testing requirements differ somewhat for biotr eatment sy stems that are thoroughl y mixed versus non - thoroughl y m ixed, but the continuous parameter monitoring requirements are the same. Subpart S requires that mills monitor daily the outlet soluble 5

- day

biochemical oxygen demand ( BOD 5 ) concentration, m ixed liquor volatile suspended solids (MLVSS), horsepower of aerator units, inlet liquid flow, and liquid temperature. In addition, mills must obtain daily inlet and outlet liquid grab samples from each biological treatment unit to have HAP data available to perform quarterl y performance tests and to store until after the BOD 5 results are obtained. Alternativel y, mills can conduct daily monitoring of the site

- specific parameters approved by the Administrator. B iological wastewater treatment s ystems ( e.g. , A SBs or AST units) differ from in

- process condensate treatment technologies ( e.g. , st eam strippers or in

- process bio treatment units dedicated to condensate control), because these wastewater treatment sy stems typicall y accept wastewaters from all over the m ill and must be up and running at all times to comply with National Pollutant Discharge Elimination Sy stem (NPDES) requireme nts under the CWA

. Therefore, we conclude d that special standards that would only appl y during startup and shutdown are not relevant for mill wastewater treatment sy stems that treat condensates but also accept process waters from all over the mill. Mill

- wide biological wastewater treatment sy stems were similarl y distinguished from in

- process condensate controls in our clarification that the 10 percent excess emissions allowance does not apply for these s ys tems. (63 FR 49457, September 16, 1998) Summary . To summarize, we have reviewed the informati on available to us regarding startup and shutdown periods. We believe that the expected startup and shutdown emissions (as indicated through the continuous compliance requirements implemented for s ubpart S) are not likely to cause a violation of the standards. We also found no evidence that suggested that emissions were higher during startup or shutdown that would indicate a need for an alternate standard for these periods. T he commenters have not shown that sources cannot comply with the127

standards as propo sed, and have not provided information to support development of alternative standards that would apply during startup and shutdown periods. Thus, we set standards based on available information as directed by section 112. The standards that apply during n ormal operation will also appl y during startup and shutdown. 

### 7.3 **Malfunction and Affirmative Defense 86.**  **Comment:** Commenter s 0162 and 0172 argued that EPA is required to take malfunctions into account when adopting emission standards. C ommenter 0162 stated that EPA offered very little support for its assertion that its approach to malfunctions in setting emissions standards “is consistent with CAA section 112 and is a reasonable interpretation of the statute” (76 FR 81347), other than stating its own , often counterintuitiv e, conclusions. As an example, commenter 0162 indicated that EPA made little effort to justify its assertion “that CAA section 112 does not require that emissions that occur during periods of malfunction be factored into development of CAA section 112 standards” (76 FR 81346). C ommenter 0162 also said that EPA had it backward when it said that “ [t]here is nothing in CAA section 112 that directs the A gency to consider malfunctions in determining the level ‘achieved’ b y the best

- perform ing or best controlled sources when setting emission standards ” (76 FR 81326). According to commenter 0162 , there is nothing in CAA section 112 that allows EPA to ignore malfunctions and set MACT standards based on a level of emissions that even best

- perfo rming sources onl y achieve part of the time. C ommenter 0162 argued that EPA also offered a backwards, results

- driven rationale for ignoring malfunctions, that “ accounting for malfunctions could lead to standards that are significantl y less stringent than l evels that are achieved b y a well

- performing non

malfunctioning source ” (76 FR 81347). The commenter stated that this rationale directl y contravenes congressional intent that MACT “floor” standards be based on what the best sources actuall y achieve. According to the commenter, EPA cannot ignore the requirement that MACT “floor” standards reflect performance actuall y achieved, just because EPA would like the standards to be more stringent than that actual performance reflects. According to commenter 0162 , EP A acknowledges that even properly designed and operated equipment will sometimes exceed emission limitations that were based on steady- state operation, due to malfunctions (76 FR 81347). The commenter noted that even the best

performing units in the source category covered by

the proposed rule (like any technologies) are subject to a wide variety of potential malfunctions ( e.g. , power failures, equipment breakdowns) (76 FR 81346). The commenter explained that operators of these processes and equipment must treat malfunctions as very distinct events from steady

- state operations, depending on the severity of the malfunction, requiring anything from shutdown of the unit to emergency fire response actions. The commenter agreed with EPA’s conclusion that the fact ual complexity

of differing processes and of the severity , frequency , and duration of malfunctions makes standard

- setting difficult (76 FR 81346). The commenter added that it is often infeasible to gather emission s data during malfunctions

– either for stand ard

- setting or for compliance

- demonstration purposes

— because malfunctions are by definition unexpected and infrequent, so it is not possible to plan to have test equipment in place to measure emissions when one occurs. According to the commenter, even if t est or monitoring equipment is in place, emissions during malfunctions128

often are not routed to a stack where they can be measured, and upsets during stack testing invalidate the test results under EPA’s approved test methods. 134 The c ommenter argued that the se findings should lead EPA to prescribe alternative design, equipment, work practice or operational standards where it is not feasible to set or enforce a numerical emission limit, based on its authority under CAA section 112(h), rather than support EPA’s decision to ignore the fact that SSM events can lead to higher emissions even at well

- operated facilities with the best control equipment. According to the commenter, EPA cannot rationall y defend its articulated view that applying the concept of “best performing” is inconsistent with a source experiencing a malfunction (76 FR 81346) because it ignores that there are work practices ( e.g. , monitoring operating parameters to identify a malfunction and stopping or cutting back the process accordingly) that rep resent the best practices for minimizing emissions during a malfunction. The commenter pointed out that, while the measures that represent these best practices will depend on facility

- specific issues, such as process design, pollution control train, and other factors, they nonetheless represent "the maximum degree of reduction in emissions of the hazardous air pollutants...achievable...through application of measures, processes, methods, sy stems or techniques" and reflect "the emission control that is achie ved in practice by

the best controlled similar source[s]" CAA section 112(d)(2) and (3). Commenter 0163 agreed that the CAA does not require EPA to include the emissions from malfunction events in the limitations it sets for normal operating periods, since those emissions ty

pically cannot reasonabl y be measured or monitored, but those emissions also are not amenable to regulation under specific emission limits. A single emission limitation that applies even though it cannot be met during malfunction (or startup or shutdown) events does not represent a limitation “achieved in practice,” as required by CAA section 112(d)(3). The original subpart S MACT standards for pulping sources were written with the understanding that excess emissions associated with SSM e vents would not be considered violations of the standards, either because of specific provisions of the regulations or because of the now vacated exemption in the NESHAP GP

. Because of the court decision and the underl yi ng CAA achievability criteria, the c ommenter believes EPA must focus its reassessment of malfunction standards applicable to the pulping and bleaching processed in a way that captures the fundamental information on best performers on which the current standards were based. **Response:** Based on Response from Mineral Wool

. The EPA provided a detailed justification in the preamble to the proposed rule for its approach to malfunctions. As the D.C. Circuit Court noted in Sierra Club v

. EPA , 167 F. 3d 658 (D.C. Cir. 1999), the phrase "average emissio ns limitation achieved b y the best performing 12 percent of units” in section 112 of the CAA "say s nothing about how the performance of the best units is to be calculated.” Id. at 661. Congress has not directl y addressed the issue of whether emissions that occur during periods of malfunction must be taken into account in calculating the performance of the best units , and EPA’s approach to malfunctions is reasonable for the reasons set out in the preamble to the proposed rule. For example, EPA explained, and the commenter agrees, that the factual

134 Commenter 0162 noted that EPA acknowledged the se potential obstacles to measuring emissions during SSM events in the preamble to final emission standards for medical waste incinerators (74 FR 51368, 51394 (Oct. 6, 2009)), which said: “It would be very difficult to do any meaningful testing during such an event because the exhaust flow rates, temperatures, and other stack conditions would be highly variable and could foul up the isokinetic emissions test methods (thus invalidating the testing).”129

complexity

of differing processes and of the severity , frequency , and duration of malfunctions makes standard

- setting impracticable. In fact, th e commenter’s statement that the best work practices employed during mal functions “will depend on facility- specific issues, such as process design, pollution control train, and other factors” highlights the impracticability of setting work practice standards that apply across all sources in the category for the m yri ad ty

pes of malfunction that could occur. The c ommenter does not explain how any of the options suggested would make it an y easier or practicable for EPA to set a national standard that accounts for the innumerable types of malfunctions that, as commenter points out, might vary depending on facility

- specific issues. The EPA further explained that the performance of units that are malfunctioning is not reasonably foreseeable and cited to case law supporting its approach to malfunctions. See Sierra Club at 665 (discussing need to take into account the worst reasonabl y foreseeable performance) and Weyerhaeuser v

. Costle , 590 F.2d 1011, 1058 (D.C. Cir. 1978) (“In the nature of things, no general limit, individual permit, or even any upset provision can ant icipate all upset situations.”). In pointing out that “accounting for malfunctions could lead to standards that are significantl y less stringent than levels that are achieved b y a well

- performing non

malfunctioning source,” EPA was merel y pointing out one possible consequence of taking malfunctions into account in setting standards if such an approach were practicable. This theoretical consequence is not driving EPA’s approach to malfunctions. For all the reasons explained in the proposal preamble and abov e, EPA’s approach to malfunctions is reasonable and consistent with the statute regardless of whether collection of certain types of malfunction data under certain circumstances is theoretically possible. **87 .**  **Comment:** Commenter 0162 rejected EPA’s claims that it somehow “presents significant difficulties” to attribute malfunctions to a “best performing” source (76 FR 81346), stating that it “presents significant difficulties” when EPA ignores the undisputed existence of malfunctions even at best performing sources, and claims falsely that the best performing sources “achieve” emission levels that they

undisputedly

do not achieve part of the time. The commenter argued that , since EPA describes malfunctions as being sometimes unavoidable or “not reasonably pre ventable,” despite proper design and maintenance of equipment, there is no basis for EPA’s conclusion that malfunction events are not representative of best performing sources (76 FR 81346). While the commenter acknowledged that one goal “of best performin g sources is to operate in such a way

as to avoid malfunctions of their units” (76 FR 81347), that is all the more reason wh y EPA must acknowledge the fact that those sources nevertheless experience malfunction events, rather than assume those emissions aw ay . Commenter 0163 stated that EPA may not be able to establish a reasonable specific emission limitation for these events, but th e y believe the Agency can establish a reasonable standard , such as appropriate addi tions to the venting allowances or , where allowance cannot be feasibl y determined from the data, work practice standards under CAA section 112(h). Th e commenter refer

red EPA to the detailed SSM Coalition comments on the proposed NESHAP modifications for the Mineral Wool and Ferroalloys industries

. Commenter 0162 further argued that EPA wa s going beyond the MACT “floor” by proposing MACT standards that it recognizes even the best performing existing sources cannot130

achieve part of the time, but without making the demonstrations that the CAA and case law require EPA to make in order to impose beyond

- the

- floor MACT standards. The commenter said that this is especially

obvious when one considers the many conditions EPA propose d to impose on sources during malfunctions, in order to be excused from civil p enalties. According to the commenter, EPA ma de no attempt to justify those conditions as reasonable, “taking into consideration the cost of achieving such emission reduction, and any non - air quality health and environmental impacts and energy requirements... .” (CAA section 112(d)(2)). Commenter 0162 also noted that EPA did not provide any support for its belief that “[a]pplying the concept of ‘best controlled’ or ‘best performing’ to a unit that is malfunctioning presents significant difficulties” in setting CAA section 112 standards (76 FR 81346). The commenter argued that it is indefensible for EPA to acknowledge that malfunctions are inevitable, even for the best performing sources, refuse to include emissions data representing malfunctions in calculating the MACT “floor” (76 FR 81346), and then require that those MACT “floor” limitations be met even during malfunctions. **Response** : The commenter is incorrect in stating that the EPA’s malfunction provisions go beyond the MACT floor. The MACT floor w as designed and calculated based on normal working operations , which does not include malfunctions . Malfunctions are not considered normal working operations because they are “ sudden, infrequent, not reasonably preventab le .” Morever, the “conditions EPA proposed to impose on sources during malfunctions” are not conditions of compliance. Rather, the affirmative defense criteria are conditions to show that a source found to not be in compliance has operated the affected source in such a way as to make civil penalties inappropriate. Based on Response to MATS Comment p. 55 T he EPA is finalizing the proposed affirmative defense language for exceedances of the numerical emission limits that are caused b y malfunctions with minor revisions as discussed below. The EPA recognizes that even equipment that is properly

designed and maintained can fail and that such failure can cause an exceedance of the relevant emission standard. The EPA is including an affirmative defense in the final rule , as we have in other recent section 111, 112 , and section 129 rules , so as to balance the tension, inherent in man y typ es of air regulation, to ensure adequate compliance while simultaneously recognizing that , despite the most diligent of efforts, emission limits may be exceeded under circumstances beyond the control of the source. The EPA must establish emission standards that “limit the quantity , rate, or concentration of emissions of air pollutants on a cont inuous basis.” 42 U.S.C. 7602(k) (defining “emission limitation and emission standard”). See generally Sierra Club v. EPA , 551 F.3d 1019, 1021 (D.C. Cir. 2008) (emissions limitations under CAA section 112 must both continuously appl y and meet section 112’s minimum stringency requirements, even during periods of startup, shutdown and malfunction). Thus, the EPA is required to ensure that section 112 emissions limitations are continuous. The affirmative defense for malfunction events meets this requirement by ensuring that , even where there is a malfunction, the emission limitation is still enforceable through injunctive relief. While “continuous” limitations, on the one hand, are required, there is also case law indicating that , in some situations , it is appropriate for the EPA to account for the practical realities of technology . For example, in Essex Chemical v. Ruckelshaus , 486 F.2d 427, 433 (D.C. Cir. 1973), the D.C. Circuit Court acknowledged that , in setting standards under CAA section 111 , “variant prov isions” such as provisions allowing for131

upsets during startup, shutdown and equipment malfunction , “appear necessary to preserve the reasonableness of the standards as a whole and that the record does not support the ‘never to be exceeded’ standard currently in force.” See also, Portland Cement Association v. Ruckelshaus , 486 F.2d 375 (D.C.Cir. 1973). Though intervening case law such as Sierra Club v. EPA and the CAA 1977 amendments calls into question the relevance of these cases today , they support the EP A’s view that a s ys tem that incorporates some level of flexibility is reasonable. The affirmative defense simply provides for a defense to civil penalties for excess emissions that are proven to be beyond the control of the source. By incorporating an affi rmative defense, the EPA has formalized its approach to upset events. In a CWA setting, the Ninth Circuit required this ty pe of formalized approach when regulating “upsets beyond the control of the permit holder.” Marathon Oil Co. v. EPA , 564 F.2d 1253, 12 72

- 73 (9 th Cir. 1977). But see, Weyerhaeuser Co. v. Costle , 590 F.2d 1011, 1057

- 58 (D.C. Cir. 1978) (holding that an informal approach is adequate). The affirmative defense provisions give the EPA the flexibility to both ensure that its emission limitation s are “continuous” as required by 42 U.S.C. 7602(k), and account for unplanned upsets and , thus , support the reasonableness of the standard as a whole. Based on Response from MATS p. 55 Inexercising its authority under section 112 to establish emission standards (at a level that meets the stringency requirements of section 112), the EPA necessarily

defines conduct that constitutes a violation. The EPA’s view is that the affirmative defen se is part of the emission standard and defines two categories of violation. If there is a violation of the emission standard and the source demonstrates that all the elements of the affirmative defense are met, only injunctive relief is available. All oth er violations of the emission standard are subject to injunctive relief and penalties. **88 .**  **Comment** : According to commenter 0162, if it is possible to gather sufficient representative data reflecting emissions during malfunctions, then EPA is obligated to consider those data in its MACT “floor” calculations for steady

- state operating conditions. The commenter indicated that, to the extent EPA had access to continuous monitoring data for emission units covered by the NESHAP, EPA could have conducted anal ys e s of emissions levels during malfunction events. The commenter noted that many typ es of sources are required b y many state agencies to submit deviation reports or malfunction reports when they experience a malfunction that causes an exceedance of an applic able limitation and that EPA did not appear to have made any attempt to obtain and anal yz e such reports, in order to assess what ty pe of requirement might reasonably apply to the subject emission units during malfunctions. **Response** : The EPA does not agree with the premise of the comment. The EPA disagrees that any malfunction or collection of data captured during malfunctions could be predictive and representative of an y other malfunction. Data gathered through malfunction or deviation reports cannot be use d as the basis for setting a standard, but are the basis for the EPA’s assertion that malfunction periods are not a variant of normal operation with which EPA should apply a distinct numerical or work practice standard. **8 9.**  **Comment** : Commenter s 0162 and 017 2 pointed out that there are several options EPA could use for setting MACT standards under CAA section 112 that would apply during malfunction events. As an example, commenter 0162 noted that EPA might be able to establish an emission limitation that appl ies at all times, but that has an averaging time of sufficient duration that short, infrequent spikes in emissions due to malfunctions would not cause the132

source to exceed the emission limitation (while at the same time ensuring that the source does not op erate in a way

that causes frequent, lengthy excursions above the normal controlled emission rate). The commenter further noted that EPA also could use the flexibility accorded by CAA section 302(k)

—

which defined “emission limitation” and “emission standard” to include
“ an y requirement relating to the operation or maintenance of a source to ensure continuous emission reduction, and any design, equipment, work practice or operational standard promulgated under ” the CAA

—to address emissions during malfunction events through operational requirements rather than b y appl yi ng the same limits on pollutant concentrations in exhaust gases that appl y during normal operations. C ommenter s 0162, 0163, and 0172 also noted that EPA also could have concluded, as explained above, that it has grounds to exercise its authority under CAA section 112(h) to promulgate a design, equipment, work practice, or operational standard, or combination thereof, because it is not feasible to prescribe or enforce an emission standard. C ommenter 0162 also suggested that EPA could use a combination of these approaches. According to the commenter, there is no indication in the proposed rule that EPA gave much, if any, consideration to these ty pes of options. The commenter argued that there are ample reasons to reject EPA’s conclusory assertions that it cannot take malfunctions into account when setting MACT standards for the subject source category . According to the commenter , EPA’s failure to evaluate these options thoroughl y renders the propose d rule arbitrary and requires EPA to develop a new proposal. **Response:** In addressing the commenters’ suggested alternatives regarding the EPA’s current stance on regulations during malfunction, none are viable options. Averaging emissions over a time peri od will not eliminate emissions of HAP that are unknown in quantity . By the commenter’s own admission, “ it is often infeasible to gather emission data during malfunctions ,” and without emission data for these events, they cannot be accounted for in averagi ng. As to the other suggestions of using a design, equipment, work practice, or operational standard to control during a malfunction under CAA section 112(h), please see the response to c omment no. 86 in this section. **9 0**  **. Comment:**  Commenter 0162 argued that the proposed affirmative defense provision is not a substitute for addressing malfunction events in the emission standards themselves

. According to the commenter, EPA acknowledges that the sources subject to the proposed rule wil l sometimes be unable to comply because of malfunctions, even if their equipment is properl y designed and maintained, through no fault of the source (76 FR 81347). However, the commenter noted that EPA is offering “affirmative defense,” rather than promulg ating an emission standard that eliminates that situation, so that the regulated emission sources will be subject to differentiated requirements, achievable with the identified best technology during malfunction events. The commenter stated that the propos ed affirmative defense provision shifts the burden to the source to prove that man y various criteria are met and actions were taken b y the source, in order to avoid “civil penalties.” The commenter further stated that these criteria bear no direct relation to the statutory factors for MACT standards under CAA sections 112. According to the commenter, including an affirmative defense provision does not cure EPA’s failure to set emission standards that are achievable during SSM events. The commenter contended that the proposed standards, incorporating affirmative defense, still do not represent emission limitations “achieved” b y best

- performing existing sources under CAA section133

112(d)(3), nor do they

meet the criteria for establishing beyond

- the

- floor emissio n standards under CAA section 112(d)(2). Commenter 0162 further noted that it is not even clear what the affirmative defense covers. According to the commenter, the proposed rule states that sources may assert an affirmative defense “to a claim for civil p enalties for exceedances of such standards that are caused b y malfunction, as defined in §63.2.” 135 The commenter inquired whether the term “civil penalties,” which they

said was not defined in the proposed rule, was intended to apply as well to a “civil adm inistrative penalty” imposed b y EPA under CAA section 113(d). (The commenter noted that the term “civil penalty” in other contexts means only penalties imposed by

a court.) The commenter also inquired whether the affirmative defense applied to “noncomplian ce penalties” under CAA section 120, which appl y, inter alia , to noncompliance with a section 112 NESHAP. The commenter stated that, to meet the purported purpose of the affirmative defense, which is to provide relief from emission limitations that cannot be met at times even with equipment that is properly designed and maintained (76 FR 81347), the affirmative defense provision would need to apply to civil and administrative penalties, including noncompliance penalties. 136 Commenter 0162 noted that it is als o unclear how the affirmative defense would apply to enforcement actions by

state and local governments, or to private citizen enforcement actions under CAA section 304. The commenter stated that the preamble to the proposed rule, for example, only

refers to sources appl yi ng affirmative defense in an EPA enforcement action. 137 The commenter stated that the affirmative defense provision should clearl y state that it is applicable to enforcement actions by states or citizen

- suit plaintiffs, as well. According to commenter 0162, EPA does not give any explanation for why the affirmative defense would not be available for claims for injunctive relief. 138 The commenter argued that if the excess emissions associated with the equipment or process failure are not reasonab ly

preventable, then there is no apparent reason why an affirmative defense to a claim for injunctive relief should not be available, as well. The commenter pointed out that, as a matter of law, injunctive relief may not be available in cases where a civil penalty cannot be imposed. See Sierra Club v. Otter Tail Power Co. , 615 F.3d 1008 (8th Cir. 2010) (under concurrent remedy doctrine, injunctive relief for a CAA violation is barred when civil penalty is barred b y statute of limitations). Commenter 0162 further noted that maintaining liability for injunctive relief renders the affirmative defense particularl y ineffective with respect to citizen suits. According to the commenter, if the source is even potentially subject to injunctive relief, and , therefore , could be

135 See p roposed 40 CFR 63.456

. 136 Commenter 0162 noted that, in the preamble to the p roposed r ule, EPA states that, if a source cannot prove its entitlement to the affirmative defense, “appropriate penalties could be assessed in accordance with section 113 of the CAA (see also 40 CFR 22.27)” (76 FR 81347). Th e comm enter argued that this does not answer the questions stated above. The refore, the commenter concluded, the p roposed r ule is unclear on this key issue of what the affirmative defense is intended to cover. 137 See 76 FR 81347 (“In any judicial or administrativ e proceeding, the Administrator would be able to challenge the assertion of the affirmative defense....”) (emphasis added). 138 See p roposed 40 CFR 63.456.134

required to pay

the citizen

- plaintiff’s attorney s fees , even if the source successfully demonstrated that it otherwise qualified for the affirmative defense, then the affirmative defense would not accomplish EPA’s stated objective of providing re lief in situations where the emission limitations cannot be met despite proper design and operation of process and control equipment. Commenter 0162 contended that EPA has not addressed these and other apparent limitations and shortcomings of the affirmati ve defense, which make it an entirely inadequate substitute for setting MACT standards that include provisions for SSM events. The commenter also stated that EPA provided no anal ys is that would supersede its long

- standing determination that it is not desirable to rely on enforcement, rather than regulatory language, to address the inability to comply

with technology

- based standards during SSM events (37 FR 17214, (Aug. 25, 1972)) (establishing SSM provision in NSPS). The commenter noted that courts have ado pted the same view. See, e.g. , National Lime Ass’n , 627 F.2d at 431 n.46 (“the flexibility appropriate to enforcement will not render ‘achievable’ a standard which cannot be achieved on a regular basis, either for the reasons expressly taken into account i n compliance determination regulations (here startup, shutdown and malfunction), or otherwise.”). 139 Commenters 0162 and 0172 also stated that the provision needs to state clearl y that a source that qualifies for the affirmative defense shall not be deemed to have violated the applicable standards during that time. C ommenter 0162 suggested that EPA specif ically reword the provision to state that a source “will not be deemed in violation of” the MACT standards for excess emissions or other deviations from the standards, associated with a startup, shutdown, or malfunction event, unless the event, and the source’s response to the event, do not meet the criteria spelled out in the regulations. ” 140 If EPA did that, the commenter felt it may be unnecessary

to state also that the affirmative defense relieves the source from liability for all ty pes of penalties (civi l penalties, civil administrative penalties, noncompliance penalties) and injunctive relief (save criminal penalties) in an action brought b y EPA, a state, or a citizen

- suit plaintiff. However, the commenter felt that should be the clear effect of qualifyi ng for the affirmative defense. The commenter further suggested that this reconfigured provision be called something other than an “affirmative defense,” such as an “alternative standard for SSM events.” **Response:** Based on Responses from Oil and Gas T he EP A’s view is that the affirmative defense is consistent with CAA sections 113(e) and 304. S ection 304 gives district court s jurisdiction “to apply

appropriate civil penalties.” Section 113(e)(1) identifies the factors that the Administrator or a court shall take into consideration in determining the amount of a penalty to be assessed , onl y after it has been determined that a penalty is appropriate. The affirmative defense regulatory

provision is not relevant to the amount of any penalty to be assessed under section 113(e) because if a court determines that the affirmative defense elements have been

139 See 37 FR 17214 (Aug. 25, 1972) (establishing SSM provision in NSPS). See also Marathon Oil Co. v. EPA , 564 F.2d at 1273 (explaining why EPA’s statement

—that it would not take enforcement action against sources that exceeded effluent limitations because of upset events

—was “not an adequate response ” to the argument that standards that cannot be met during unavoidable upsets fail to reflect available technology). Commenter 0162 stated that, for these reasons, EPA’s statements in the proposal preamble

—that it will “determine an appropriate response ” to reported exceedances of the proposed standards, based on whether the exceedances were avoidable, minimized, etc. (w hich the commenter said seems to be in addition to providing the affirmative defense)

—are not in any way a substitute for EPA setting the standards at an achievable level to begin with (76 FR 81347)

. 140 Com pare, e.g. , 40 CFR 80.613 (stating that persons demonstrating specified defenses “will not be deemed in violation” and are not “deemed liable for a violation” of diesel fuel sulfur program regulations).135

established, then a penalty is not appropriate , and penalty assessment pursuant to the section 113(e)(1) factors does not occur. In exercising its authority under section 112 to establish emission standards (at a level that meets the stringency

requirements of section 112), the EPA necessaril y defines conduct that constitutes a violation. The EPA’s view is that the affirmative defense is part of the emission standard and defines two categories of violation. If there is a violation of the emission standard and the source demonstrates that all the elements of the affirmative defense are met, onl y injunctive relief is available. All other violations of the emission stan dard are subject to injunctive relief and penalties. The CAA does not require that all violations be treated equall y. Further, a citizen suit claim under section 304 allows citizens to commence a civil action against any person alleged to be in violation o f “an emission standard or limitation under this chapter.” The CAA, however, allows the EPA to establish such “enforceable emission limitations.” Thus, the citizen suit provision clearl y contemplates enforcement of the standards that are defined b y the EPA . As a result, where the EPA defines its emissions limitations and enforcement measures to allow a source the opportunity to prove its entitlement to a lesser degree of violation (not subject to penalties) in narrow, specified circumstances, as the EPA did here, penalties are not “appropriate” under section 304. The EPA’s view is that an affirmative defense to civil penalties for exceedances of applicable emission standards during periods of malfunction appropriately balances competing concerns. On the one hand, citizen enforcers are concerned about additional complications in their enforcement actions. On the other hand, industrial sources are concerned about being penalized for violations caused b y malfunctions they could not have prevented and were other wise appropriatel y handled (as reflected in the affirmative defense criteria). The EPA has used its s ection 301(a)(1) authority to issue regulations necessary to carry out the Act in a manner that appropriately balances these competing concerns. T ext from PSG The EPA agrees that affirmative defense is not a substitute for using malfunction emissions data in setting standards, because, as asserted in the proposal, the EPA is not obligated b y the CAA to address malfunctions by incorporating emissions that re sult from malfunctions in setting the standards. The criteria for asserting affirmative defense bear no relationship to the factors for setting a MACT standard, because affirmative defense is not a condition for compliance, but rather a set of criteria for a source found to be in violation of a standard, to show that civil penalties are not appropriate in a given instance. Finall y, the standards do represent emission limitations “achieved” b y best

- performing existing sources under CAA section 112(d)(3) . Wh at the standards do not represent, are standards achieved b y sources operating while process, auxiliary , or control equipment is not operating, in partial or total failure due to malfunction, or when work practices are not being conducted properly

. The EPA reminds the commenter that EPA must establish emission standards that “limit the quantity , rate, or concentration of emissions of air pollutants on a continuous basis.” 42 U.S.C. 7602(k) (defining “emission limitation and emission standard”). See generally Sierra Club v. EPA , 551 F.3d 1019, 1021 (D.C. Cir. 2008) (emissions limitations under CAA section 112 must both continuously appl y and meet section 112’s minimum stringency requirements, even during periods of SSM ). Thus, the EPA is required to ensure that section 112 emissions limitations are continuous. The affirmative defense for malfunction events meets this136

requirement b y ensuring that , even where there is a malfunction, the emission limitation is still continuous by

being enforceable through injunctive relief. The EPA’s objective in including affirmative defense as a facet of the standard is to provide relief from civil penalties for a class of violations where such penalties are not appropriate. Affirmative defense is not intended to relieve the owner/operator of the sanction of injunctive relief, or, as cited by the commenter, attorney fees , should a court find it appropriate to impose such a sanction. Based on Response from Group I RTR draft p . 26 The affirmative defense applies to civil penalties, including civil administrative penalties and penalties under section 120, but does not apply to injunctive relief or criminal penalties. The affirmative defense is available in any civil action to enforce the standards set forth in this rule, wh ether such action is brought b y EPA, a state or local authority or a citizen. The EPA agrees that, in some cases, injunctive relief may not be appropriate if all the criteria of the affirmative defense have been satisfied. In such cases, liability for atto rney ’s fees is not a real issue. However, some form of injunctive relief may be appropriate. The Sierra Club v. Otter Tail Power Co. case cited b y the commenter is not on point and does not undermine EPA’s ability to limit the affirmative defense to penalty cl aims. The concurrent remedy doctrine provides that, where a party's legal remedies are time

- barred, a party's concurrent equitable claims generally are barred. The affirmative defense is not a time

- bar to civil penalties. EPA does not intend to provide an affirmative defense to criminal charges as the very nature of criminal charges is that there is alleged to be a knowing violation (CAA section 113(c)(1) through (3)), or a knowing or negligence release that threatens imminent danger to persons (CAA sec tion 113(c)(4) and (5)). In these circumstances, it is likely that the source did not do all that could be done to prevent the excess emissions. However, if there are circumstances that justify a knowing release as is suggested b y the commenter, such circumstances can be raised in any enforcement action and may be the basis for a defense T ext from PSG The EPA disagrees that no anal ys is has been presented to explain our approach to SSM and the role that affirmative defense play s in this approach. In the prop osal notice cited b y the commenter (37 FR 17214, (Aug. 25, 1972)) , the EPA plainly stated the objective to create a process “b y which sources whose emissions had exceeded the standards could seek to show wh y the excesses were excusable.” The EPA further el aborated that a formal process to do so was superior to an informal process, and that the formal process offered three critical advantages: First, the existence of a formal process better informs the public of the policy and factual issues which will underlie enforcement of the standards. Second, affected industries which are making good

- faith efforts to meet the standards will on the whole welcome a regularized means of informing the Agency in detail of the circumstances surrounding unavoidable emission ex cesses. Third, the Agency expects to benefit substantially from the information it will gain about the operation of the processes in question, for both future enforcement and standard setting. We hasten to point out that, in response to comments on the app roach proposed in that notice, the EPA modified the proposal and promulgated the exemption language subsequently found contrary to the statute in Sierra Club

.137

The approach that the EPA has proposed and promulgates now is similar to the approach outlined in the 1972 proposal, but which at that time was not promulgated at the final rule. The critical advantages cited in the 1972 proposal (for a formal process akin to affirmative defense) are all met b y the formal process for asserting affirmative defense as e xplained by the current regulatory

action. The key

difference in the approach we are promulgating is that it does not suffer from the flaw of the proposal in 1972, or the exemptions that EPA eventually promulgated and became the object of Sierra Club : that the EPA does not have the authority to grant such exemptions

. **9 1**  **. Comment:**  Commenter 0160 expressed concern about how affirmative defense may be employed b y the pulp and paper mills, specifically with respect to NCG venting from malfunctions regulated by §§ 63.443 and 64.446. The commenter noted that the venting allowances are cumulative during the reporting period and suggested that the 2

- day notification and 45

- day

root cause analy sis be submitted only afte r there is an actual exceedance of a percentage venting limit. The commenter expressed concern that mills may employ affirmat ive defense for every

malfunction NCG venting as a preventative measure in case it were to exceed one of the percentage limits (1 percent, 4 percent, or 10 percent) and this could prove to be very burdensome to facilities and delegated state agencies. The commenter suggested that the 2

- day notification and 45

- day

root cause analy sis be submitted only after there is an actual exceedance of a percentage venting limit

. The commenter also suggested limiting the number of 2

- day affirmative defense notifications to ventings over two hours in length, or notifying for consolidated venting events after they add up to some threshold, such as 4 hours. Co mmenter 0228 quoted §63.456(b) as follows regarding the affirmative defense reporting requirement in the proposed rul e: The owner or operator seeking to assert an affirmative defense shall also submit a written report to the Administrator within 45 day s of the initial occurrence of the exceedance of the standard in paragraphs §§63.443(c) and (d), 63.444(b) and (c), 63.44 5(b) and (c), 63.446(c ), (d), and (e), 63.447(b) or § 63.450(d) to demonstrate, with all necessary supporting documentation, that it has met the requirements set forth in paragraph (a) of this section. The owner or operator may seek an extension of this dea dline for up to 30 additional day s by

submitting a written request to the Administrator before the expiration of the 45 day

period. Until a request for an extension has been approved b y the Administrator, the owner or operator is subject to the requirement to submit such report within 45 day s of the initial occurrence of the exceedance. C ommenter 0228 note d that they require owners and operators to submit requests to exempt exceedances with their quarterl y excess emission reports. These requests are typical ly considered within 30 days of receipt of the excess emissions report. The proposed provision appears to create a duplicative process for request and consideration of excess emissions. This separate process would potentially require perpetual consideratio n of exemption requests , rather than conforming to the state's current practice of submitting all requests pertaining to that quarter with the regular quarterl y report (due within 30 days after the end of the calendar quarter. The proposed provision would impose inefficiency on the current process b y creating unnecessary tracking and administrative work for both the facility and for state regulators. The commenter138

request ed that the proposed provision be changed so that assertions of affirmative defense are submitted on the same timeline as the quarterl y excess emissions report. **R esponse**  **:** Concerning commenter 0228 ’s note that the proposed subpart S affirmative defense reporting requirements appear to create a duplicative process for request and considerati on of excess emissions , we note that s tates can petition for delegation. A state’s affirmative defense requirements would have to be at least as stringent as EPA’s. In response to the concerns noted by commenters 0160 and 0228 regarding the timing of submi ttal of the affirmative defense notifications and reports, we have changed the requirements in §63.456 (b) of the final rule to read as follows:

... This affirmative defense report shall be included in the first periodic compliance, deviation report or excess emission report otherwise required after the initial occurrence of the violation of the relevant standard (which may be the end of any

applicable averaging period). If such compliance, deviation report or excess emission report is due less than 45 day s after the initial occurrence of the violation, the affirmative defense report may

be included in the second compliance, deviation report or excess e mission report due after the initial occurrence of the violation of the relevant standard

. As noted in a later response, w e have also eliminated the 2

- day notification require ment that was included in § 63.456(b) at proposal because we will receive suffici ent notification of malfunction events that result in violations in other required compliance reports, such as the malfunction report required under §63.455(g). Regarding commenter 0228’s concern about the proposed provisions creating the potential for per

petual consideration of exemption requests, we should note that a ffirmative defense is onl y available when a violation has occurred as a result of a malfunction; malfunctions themselves do not necessarily lead to violations. Furthermore, as defined in §63. 456(a)(1)(i), affirmative defense was explicitly not designed for use with frequent events or as a preventative measure in anticipation of a violation, per the scenario described b y commenter 0228

. **9 2**  **. Comment:**  According to c ommenter 0163 , EPA acknowledges that malfunction periods are “ sudden, infrequent, and not reasonably preventable failure of air pollution control and monitoring equipment, process equipment or a process to operate in a normal or usual manner” and argue s that the CAA does not require the m to include malfunction periods in development of MACT emission standards. [76 FR 81346] The commenter stated that , rather than structure a discrete and achievable emissions standard for malfunction events, the EPA place s them in a netherworld where the e mission limitations otherwise applicable during normal operating conditions may

or may not be enforced depending on how well a facility meets, in EPA’s eyes, a very broad set of conditions. The commenter noted that EPA provides an “a ffirmative d efense” pro vision against civil penalties that requires a “preponderance” of evidence to support. [76 FR 81347] **Response :**  We acknowledge the commenter’s statement concerning malfunction events and refer the commenter to other responses in this section concerning our approach on SSM and affirmative defense for the final rule ( e.g. , responses to comment nos. 86 and 90)

.139

**9 3**  **. Comment:**  Commenter 0218 maintain ed that the proposed affirmative defense from civil penalti es for malfunctions is unlawful, and creat es a new loophole that will reduce the deterrent impact of the proposed standards. The commenter argued that Congress plainly intended citizens to be able to enforce emission standards under the CAA using the full range of civil enforcement mechanisms avai lable to the government, and, in the HAP context, subject only to the lim itation that government not be “ diligently prosecuting ” its own civil enforcement action, according to CAA section 304(b)(1)(B) and 42 U.S.C. 7604(b)(1)(B). The commenter stated that the EPA exceed ed it s authority by attempting to impose additional A gency- created limits on civil penalties, when the CAA spells out the only limits that Congress intended to impose on citizens ’ ability to seek and recover penalties in enforcement suits un der CAA section 304, 42 U.S.C. 7604.320

. The commenter stated that the proposed affirmative defense goes directl y against C ongressional intent that judges should determine the size of civil penalties whenever they are sought , and that the proposal will imp ermissibly chill citizen participation and the ability to win an effective, deterrent remedy in CAA enforcement actions. The commenter observed that the CAA gives the EPA minimal discretion that only applies to administrat ive penalties which may be i mposed under subsection 113(d), but no authority to EPA to compromise, modify or limit civil penalties that a court may impose under section 113(e) or section 304 . The commenter emphasized that the explicit reference to EPA ’s ability to modify

penalties in one subsection and its absence in the other subsection of the same provision can only

be understood as an intentional decision by Congress, which EPA may not contravene b y rule. 141 The commenter argued that the owner of a facility may be able to evade civil penalties after being sued b y a community group for a violation of emission standards , if the owner satisfied the requirements set forth in EPA ’s proposed affirmative defense regulations

. The commenter stated that it is improper for a court to fail to co nsider these factors, or to fail to make its own determinati on of what civil penalties are “ appropriate ” under CAA section 304(a), and EPA should not ask a court to ignore its legal duty. The commenter observed that i t is also improper for EPA to fail to c onsider the section 113(e)(1) factors in situations in which it

141 See 42 U.S.C. 7413(e) (listing factors). Note that the proposed exemption would also be barred under Chevron step two or found to be arbitrary and capricious since, even if there exists some slight ambiguity, it is unreasonable to construe the statute as permitting EPA to short

- circuit the consideration of specifically listed factors. See Chevron , 467 U.S. at 843 (explaining that if the statute does not answer the question at issue, “the question for the court is whether the agency ’s answer is based on a permi ssible construction of the statute ” ); S. Coast Air Quality Mgmt. Dist. v. EPA , 472 F.3d 882, 895 (D.C. Cir. 2006) ( “ We further hold that EPA ’s interpretation of the Act in a manner to maximize its own discretion is unreasonable because the clear intent of Congress in enacting the 1990 Amendments was to the contrary. ” ); see also Gen. Instrument Corp. v. F.C.C ., 213 F.3d 724, 732 (D.C. Cir. 2000) (explaining that “ an arbitrary and capricious claim and a Chevron step two argument overlap ” ); Motor Vehicle Mfrs. Ass‘n of U.S., Inc

. v. State Farm Mut. Auto. Ins. Co ., 463 U.S. 29, 43 (1983) (explaining that agency acts in arbitrary and capricious manner if it fails to consider “relevant factors ” or “ entirely fail[s] to consider an important aspect of the problem”). By

“ upset[ting] the statutory balance struck by Congress, ” as discussed above, the affirmative defense is unreasonable under Chevron step two . Int‘l Alliance of Theatrical &Stage Employees v. N.L.R.B, 334 F.3d 27, 35 (D.C. Cir. 2003).140

is setting the penalty. CAA section 113(e)(1); 42 U.S.C. 7413(e)(1); see also N.Y. Cross Harbor R.R. v. Surface Transp. Bd., 374 F.3d 1177, 1184 (D.C. Cir. 2004) . It is impermissible for EPA t o attempt to displace those factors or in any way alter their significance b y creating a bar to penalties if certain A gency- defined considerations are met instead. The commenter asserted that the burden the affirmative defense places on citizens makes it l ess likely that they will enforce the Act, that c itizen participation in CAA enforcement will be hindered, in violation of citizens‘ rights to protect themselves from pollution and in direct conflict with congressional intent. The commenter also noted that several of the factors at issue in the affirmative defense undercut Congress ’ intent that citizen suit enforcement should avoid re - delving into “ technological or other considerations. ” ( NRDC v. Train , 510 F.2d 692, 724 (D.C. Cir. 1974) The commenter state d that the affirmative defense imposes a technical burden on citizens, and the burden render s the defense impermissible. The commenter predicted that the affirmative defense would likely be used on a routine basis by polluters seeking to avoid penalties, j ust as the malfunction exemption was , and enforcement of the Act could suffer. The commenter expresse d concern that the new “affirmative defense” may make it more likely that malfunctions happen, by giving industry

a way to evade penalties , if facilities can show a violation was due to a malfunction. The commenter argued that , if the EPA had authority to promulgate any

type of affirmative defense to penalties for malfunctions, EPA should also promulgate the following provisions, and also must promulgate strong reporting, monitoring, and other compliance requirements (in separate comments) :
 A specific amount of compensatory penalties should apply

to each reported malfunction (consistent with the Act). These funds should be dedicated to enforcement, inspectio ns, and monitoring in the local community around the specific facility , to create greater assurance that malfunctions will not happen again.
 The EPA must modify the regulations so that a facility or company

cannot use the affirmative defense more than once within a set period of time, such as 10 years. The affirmative defense should become automatically unavailable to a facility

that has previously

had a malfunction within the last 10 years, to ensure that this defense does not swallow the value of the stan dards. The commenter concluded that the EPA must work to expand and protect the ability of people harmed b y air pollution to seek all appropriate and available forms of relief in court. **Response :**  Based on Response from Oil &Gas **:** The EPA’s view is that the affirmative defense is consistent with CAA sections 113(e) and 304. Section 304 gives district courts jurisdiction “to apply

appropriate civil penalties.” Section 113(e)(1) identifies the factors that the Administrator or a court shall take into consideration in determining the amount of a penalty to be assessed , onl y after it has been determined that a penalty is appropriate. The affirmative defense regulatory

provision is not relevant to the amount of any penalty to be assessed under section 113(e) , be cause if a court determines that the affirmative defense elements have been established, then a penalty is not appropriate , and penalty assessment pursuant to the section 113(e)(1) factors does not occur.141

In exercising its authority under section 112 to e stablish emission standards (at a level that meets the stringency

requirements of section 112), the EPA necessaril y defines conduct that constitutes a violation. The EPA’s view is that the affirmative defense is part of the emission standard and defines tw o categories of violation. If there is a violation of the emission standard and the source demonstrates that all the elements of the affirmative defense are met, onl y injunctive relief is available. All other violations of the emission standard are subject to injunctive relief and penalties. The CAA does not require that all violations be treated equall y. Further, a citizen suit claim under section 304 allows citizens to commence a civil action against any person alleged to be in violation of “an emission s tandard or limitation under this chapter.” The CAA, however, allows the EPA to establish such “enforceable emission limitations.” Thus, the citizen suit provision clearl y contemplates enforcement of the standards that are defined b y the EPA. As a result, where the EPA defines its emissions limitations and enforcement measures to allow a source the opportunity to prove its entitlement to a lesser degree of violation (not subject to penalties) in narrow, specified circumstances, as the EPA did here, penalties are not “appropriate” under section 304. The EPA’s view is that an affirmative defense to civil penalties for exceedances of applicable emission standards during periods of malfunction appropriately balances competing concerns. On the one hand, citizen e nforcers are concerned about additional complications in their enforcement actions. On the other hand, industrial sources are concerned about being penalized for violations caused b y malfunctions that could not have prevented and were otherwise appropriate ly

handled (as reflected in the affirmative defense criteria). The EPA has used its s ection 301(a)(1) authority to issue regulations necessary to carry out the Act in a manner that appropriately balances these competing concerns. The EPA disagrees that th e affirmative defense provision will hamper citizen enforcement. First, injunctive relief is still available , and the threat of penalties would not deter violations in cases where all of the conditions of the affirmative defense have been satisfied , becaus e the affirmative defense criteria ensure that all reasonable steps were taken to prevent a malfunction that causes excess emissions. Further, litigating whether a source has met the affirmative defense will not burden citizen groups an y more or less than would litigating the appropriate penalty amount in the penalty assessment stage of a citizen suit enforcement action, because the section 113(e) penalty assessment criteria and the affirmative defense criteria are similar and , in fact , overlap. For exampl e, the requirement that the Administrator or the court consider “good faith efforts to comply” is bound to generate the typ e of fact

- intensive disputes of which the commenter complains. In addition, several of the affirmative defense criteria are exactly the type of criteria the Administrator or a c ourt might consider in determining whether a source made “good faith efforts to compl y.” For example, to take advantage of the affirmative defense, the source must prove b y a preponderance of the evidence that, among other things, the excess emissions “were caused b y an unavoidable failure of air pollution control and monitoring equipment, process equipment, or a process to operate in a normal or usual manner” and “could not have been prevented through careful planning, proper design or better operation and maintenance practices” and “did not stem from any activity or event that could have been foreseen and avoided, or planned for.”142

Thus, the EPA does not expect the affirmative defense provision to significantly alter the burden of bringing a citizen enforcement action. For those cases that do proceed to trial, even in the absence of this affirmative defense, sources generall y raise equitable arguments to argue for a low penalty , and citizens often rebut such arguments. Therefore, as a practical matter, the EPA does not expect the affirmative defense provision to materially affect the practice of CAA enforcement. T he EPA is not adopting the commenter ’ s suggestion with respect to compensatory damages or limits on the frequency of use of the affirmative defense. Itis not clear that the EPA has authority

to require the automatic imposition of compensatory damages , and even if such authority exists, the EPA does not think automatic imposition of damages is appropriate , as it would unduly

complicate the enforcement process. Ensuring that malfunctions do not recur can be handled through imposition of appropriate injunctive relief. In addition, the EPA’s view is that it would not be appropriate to limit a source’s ability to take advantage of the affirmative defense to one time over a specified period of time such as 10 years , given that the affirmative defense is onl y available when the source could not have prevented the excess emissions. With respect to the commenter ’ s suggested reporting requirements, the rep orting requirements in the rule being promulgated already require malfunction reporting , and the affirmative defense provisions require that parties choosing to assert the affirmative defense meet additional malfunc tion reporting requirements. Any such reports submitted to the EPA are publicl y available pursuant to CAA section 114. **94. Comment**  **:** Definition of M alfunction

. Commenter 0168 noted the language that EPA propos ed for defining malfunction in §63.456(a)(1) is similar to the definition in §63.2 , with one major exception. In the proposed language, one of the conditions for an affirmative defense is that the excessive emissions were caused b y a “sudden, infrequent, and unavoidable failure...” The GP definition of malfunction uses the phrase “not reasonably preventable” instead of the word “unavoidable.” The commenter believes that this creates two different de finitions of malfunction. The commenter saw no reason for two different definitions of a malfunction and requ est ed that the Agency revise the proposed language to reflect the GP definition of a malfunction. **Response :**  Based on Response from Nitric Acid The EPA disagrees that the criteria of the affirmative defense changes the definition of malfunction (as defined in §6 3.2) for purposes of the NESHAP program. The wording difference between the §63.456(a)(1) and the §63.2 malfunction definitions is because th e EPA does not intend that the affirmative defense be available in every

in stance of a malfunction. **95. Commen**  **t:** Root Cause Analy sis D efinition

. C ommenter 0168 noted that the term “root cause anal ys is” implies a specific formal process , and there are sever al techniques that may be called “root cause anal ys is,” depending on the author and industry . For many malfunctions, the cause is immediatel y obvious , and a formal process for determining the cause is not needed. When a malfunction occurs, the expectation is that the facility will correct the problem as quickly as possible and re turn to their operating window. A formal root cause anal ys is is ty picall y limited to very

significant events or repeat events. The proposed language assumes that all malfunctions are equally significant and need an identical degree of investigation. The143

commenter asserted that a formal root cause anal ysis should only be used when other reasonable methods fail to show what caused the malfunction or when the serious nature of an event might make such an anal ys is necessary . Moreover, other tools may be more appropriate ( e.g. , failure mode and effect, fault tree, etc.) , or more powerful tools may be introduced in the future. The facility is the onl y one that can and should decide what too l to use to determine the cause of the malfunction. If EPA intends for the facility to investigate and fix the source of the malfunction so that it is less likely

to recur, the commenter su pported that concept , but suggested that EPA use a term other than “root cause anal ys is” that does not carry a specific meaning. However, if the Agency envisions a formal process for determining the root cause for every malfunction, no matter how simple, the commenter asserted that this is unnecessary and would result in excess efforts with no environmental gains. **Response:** Based on Response from MATS p. 59 In the context of this rule, the term “root cause anal ys is” was used generically to imply an analy sis of sufficient depth and complexity to indicate whethe r a malfunction did indeed cause a failure to meet a standard, provide sufficient information on the nature and cause of a malfunction to determine whether the source had a malfunction that met the definition of a malfunction, and whether civil penalties are an appropriate sanction for the violation if one occurred. The term “root cause anal ys is” is not defined in subpart A (the GP ) or in the subpart being promulgated, subpart S. The EPA did not intend to prescribe a specific methodology , given that “root c ause analy sis” is not a defined term in the applicable subparts of p art 63. While conducting an analy sis of every malfunction may

be a “best practice,” for regulatory

purposes, an analy sis is only required for those malfunctions for which the source choos es to assert an affirmative defense, and not every malfunction is significant enough to warrant the assertion. The EPA believes that sources seeking to minimize emissions will endeavor to determine what went wrong anyt ime there is a minor or major malfunct ion , and the facility should decide what level of investigation is needed in each instance. We agree with the commenter that sources should use appropriate techniques of anal ys is to achieve the desired results and conclusions in the event of a malfunction. The EPA joins the commenter in seeking meaningful results which successfull y identify, and address the cause of the malfunction. The EPA believes that a minor administrative burden will result in sources anal yz ing their violative emissions to reduce or avoid those emissions in the future, which is an environmental ben efit. The EPA is revising the root cause analy sis requirement to clarify that the purpose of the root cause anal ys is is to determine, correct, and eliminate the primary cause of the malfuncti on and that the root cause anal ys is itself does not necessarily require that the cause be determined, corrected or eliminated. However, in most cases, EPA believes that a properl y conducted root cause analy sis will have such results. Such an anal ys is is be neficial in resolving or preventing violations and excess emissions whether the source seeks to assert the affirmative defense or not. A root cause anal ys is is one example of what constitutes good air pollution control practices to minimize emissions. **96 .**  **Comment :**  Rebuttable P resumption Commenter s 0168, 0164 , and 0207 suggested that EPA should modify

the affirmative defense provisions so that it is a “rebuttable presumption.”144

As EPA knows, malfunctions will occur. Even the best run facilities will have circumstances where events happen that are out of their control. Wh ile the commenter s asserted that EPA must take into account the conditions that occur during malfunctions and establish limits that consider these circumstances, they also agree d that some form of enforcement discretion is needed for malfunctions. The comm enter s expressed support for EPA to maintain a regulatory provision for malfunctions. However, the commenter s 0163, 0164, 0168, and 0 207 we re concerned that allowing a facility to interpose an affirmative defense for violations caused by malfunctions impli es that the facility

is guilty until proven innocent and improperl y shifts the burden to the facility

. Therefore, commenter 0168 suggested that EPA establish a rebuttable presumption (rather than affirmative defense) , where it is presumed that any violatio n occurring during the malfunction was not the facility ’s fault unless the Agency proves certain facts that are enumerated in the rules. This will allow the Agency to challenge the alleged deviation without compromising the legal rights of either party. Ac cording to commenter 0162, even if the proposed affirmative defense was not unreasonabl y restrictive , being able to assert a defense obviously is not the same as compl yi ng with emission limitations that are properl y set in accordance with CAA section 112. The commenter noted that, even though a source believes it qualifies for the affirmative defense, it may be considered to have violated the standards

—and may have to report violations, certify noncompliance, etc.

—

until there has been an enforcement proceeding , and the source has successfull y asserted the affirmative defense. Commenter 0162 argued that the affirmative defense places the source in the position of proving its innocence, rather than EPA or another enforcement authority having to prove that the source violated the CAA. Commenter 0162 contended that EPA, in this instance , has not provided any statutory authority , nor any

real justification, for requiring a source to prove its innocence, including fully demonstrating its innocence within 45 day s of the event , without even being charged. In the event EPA adopts an approach like the proposed affirmative defense, the commenter suggested it include these terms: “ Once a source has claimed that its excess emissions were related to a malfunction, it should not be considered to be in violation of the standards unless the enforcement authority demonstrates that the source is not entitled to claim the malfunction. ” **Respons e**  **:** Based on R esponse from MATS p. 55, Shipbuilding/W ood Furniture p. 24 The EPA does not agree w ith the comment ers’ requested approach es regarding affirmative defense. The “rebuttable presumption” approach requested by commenters 0168, 0164 , and 0207 would shift the burden of proof from the source to the EPA , as would the similar approach requested b y commenter 0162 to state the affirmative defense in terms that, once a source has claimed that its excess emissions were related to a malfunction, it will not be considered to be in violation of the standards unless the enforcement authority de monstrates that the source is not entitled to claim the malfunction . It is the source, not the EPA, which has the relevant information to assess whether a particular event qualifies as a malfunction and meets the affirmative defense

. Furthermore, the comme nters’ requested approaches appear to be similar to the scheme that the D.C. Circuit Court vacated in the Sierra Club case, in that there would be no violation unless the enforcing party ( EPA or a citizen), established that the event in question was not a malfunction. The EPA also disagrees with comments that criticize the affirmative defense for shifting the burden of proof. The affirmative defense does not require a facility to prove its innocence145

rather than requiring an enforcement authority to prove a violation of the CAA or change the burden of proof with respect to establishing a violation. The affirmative defense applies to penalties and , thus , is only used where a violation has been established. The burden of proof remains with the plaintiff in an e nforcement action. See, e.g. , § 22.24. If a violation has been established and a source wishes to assert the affirmative defense with respect to penalties, the source does bear the burden of establishing that the elements of the affirmative defense have bee n met. This burden

- shifting is appropriate because the source is in a better position to determine the facts required to establish the defense. See, e.g. , Arizona Pub. Serv. Co. v. EPA, 562 F.3d 1116, 1120, 1129

- 30 (10 th Cir. 2009) (rejecting industry challenge to the EPA’s use of an affirmative defense to address excess emissions during malfunction events). In exercising its authority under section 112 to establish emission standards (at a level that meets the stringenc y requirements of section 112), EPA necessaril y defines conduct that constitutes a violation. The EPA’s view is that the affirmative defense is part of the emission standard and defines two categories of violation. If there is a violation of the emission s tandard and the source demonstrates that all the elements of the affirmative defense are met, onl y injunctive relief is available. All other violations of the emission standard are subject to injunctive relief and penalties. In response to commenter 0162’s concern about the rule “ requiring a source to prove its innocence, including fully demonstrating its innocence within 45 day s of the event ,” as noted in the following response, we have revised the 45

- day affirmative defense reporting requirement to require sources to submit the affirmative defense report with the next compliance report. **97. Comment**  **:** Immediate N otification

. Commenter 0168 referenced a recently proposed rule (77 FR 4522, 4538, January 30, 2012), in which EPA proposed dropping the immediate n otification process and simply requiring a written report within 45 day s o f the malfunction. The commenter suggested that the Agency adopt the same change in th e pulp and paper regulation

. Commenter 0162 also noted that EPA recently proposed almost identic al affirmative defense requirements in its proposed reconsideration of various provisions of the Chemical Manufacturing Area Source Rule (77 FR 4522, January 30, 2012), but omitted the 2

- day notification requirement. The commenter hoped that this indicates that EPA has been persuaded by comments submitted by

the SSM Coalition (of which commenter 0162 is a member) and others that the 2

- day

notification requirement is onerous and burdensome. Commenter 0162 requested that, at a minimum, EPA abandon the 2

- day n otification requirement in the final pulp and paper RTR rule, consistent with its proposed provisions for the Chemical Manufacturing Area Source Rule. **Response:** Based on Response from Oil and Gas The EPA has evaluated some of the affirmative defense criteria, and is revising both the immediate notification and 45

- day malfunction report. The EPA has removed the requirements to notify the EPA within 2 day s of violation of a standard in order to be able to avail themselves to a claim for affirmative defense and instead requires that the affirmative defense report be included in the first the first periodic compliance, deviation report or excess emission report otherwise required after the initial occurren ce of the violation of the relevant standard (which may be the end of any

applicable averaging period). If such compliance, deviation report or excess emission report is due less than 45 day s after the initial occurrence of the violation, the affirmative d efense report may be146

included in the second compliance, deviation report or excess emission report due after the initial occurrence of the violation of the relevant st andard. **98. Comment**  **:** 45

- D ay R eport P eriod

. Commenter 0162 described as unreasonable the p rovision allowing sources only 45 days to provide the extensive documentation required by the affirmative defense as currentl y written, including a completed root cause analy sis. The commenter further described as unnecessary and burdensome EPA’s “guilty until proven innocent” approach of requiring complete documentation that an event qualifies for the affirmative defense at the time of the event. According to the commenter, if EPA persisted in requiring such reporting, 90 day s is the minimum time that shou ld be allowed for the written report, unless EPA substantially streamlines the criteria for the affirmative defense, consistent with their comments. Commenter 0162 noted several problems with the proposed 45

- day period for submitting a written report demon strating that the source qualifies for the affirmative defense, a period which commences on the date of “the initial occurrence of the exceedance of the standards” (see proposed §63.456(b)). According to the commenter, much of the required content of that written report could not be created until the malfunction event ceased

— which the commenter indic ated could be many days after the malfunction commenced. As an example, the commenter noted that if a biological wastewater treatment s ys tem stopped providing s ufficient HAP removal efficiency , it could take day s to identify the nature of the problem and weeks to reestablish a sufficient microorganism community to again meet treatment requirements. The commenter pointed out that this could give the source much le ss than 45 day s, in practice, to prepare the report. According to commenter 0162, the provision in the proposed rule for requesting and obtaining an extension of the reporting deadline of up to 30 day s would provide little practical relief. The commenter noted that the source would have to submit the report within 45 day s unless the EPA Administrator (or his or her authorized representative, see § 60.2) granted the extension request before the expiration of the initial 45

- day period, which the commenter said is not likely to happen until shortly

before, if not after, the report would otherwise be due. At a minimum, the commenter recommended that the rule provide that a request for extension of the reporting deadline be considered granted if EPA has not acted on it within 10 day s. Because of the problems comment er 0162 described above regarding the timing of required reporting, the commenter requested that malfunction reporting be required on a semi

annual basis for malfunctions that occurred during the preceding 6 months (the same frequency as similar reports pursuant to NESHAP and Title V permit requirements). The commenter stated th at this would enable EPA to review the source’s compliance history and the measures being taken to address malfunctions, without imposing unworkable reporting deadlines (or potential ly encouraging sources to bombard EPA with reports for malfunctions that may not ultimatel y result in the source exceeding the 30

- day average emission limitation). According to the commenter, there is no indication anywhere that EPA has justified departing from its conclusion that semi

- annual reporting of malfunctions is sufficient, as reflected in the current subpart S standards (see § 63.455(a)).147

**Response :**  Based on Response from Oil &Gas The EPA has evaluated some of the affirmative defense criteria, and is revising both the immediate notification and 45

- day malfunction report. Instead, the final rule allows owners or operators seeking to assert an affirmative defense to demonstrate, with all necessary supporting documentation (as was required under the proposed 45

- day report), that it has met the affirmative defense criteria by submittal of the affirmative defense report in the first periodic compliance, deviation report, or excess emission report otherwise required after the initial occurrence of the viol ation of the relevant standard (which may be the end of any

applicable averaging period). If such compliance, deviation report, or excess emission report is due less than 45 day s after the initial occurrence of the violation, the affirmative defense report may be included in the second compliance, deviation report, or excess emission report due after the initial occurrence of the violation of the relevant standard. This change provides sources with sufficient time to demonstrate that they

have met the requi red affirmative defense criteria. **99. Comment**  **:** Electronic Communication

. Commenter 0168 state d that EPA should allow notification by

e - mail or other electronic means. As facilities and EPA move toward electronic recordkeeping, it makes no sense to require keeping a “properl y signed, contemporaneous operating logs” as a requirement for an affirmative defense. As such, the commenter suggest ed modifying this provision. In addition, it is impossible to eliminate the causes for certain malfunctions ( e.g. , lightning strikes). In a similar comment, c ommenter 0228 quoted § 63.456(b) as follows : The owner or operator of the affected source experiencing an exceedance of its emission limit(s) during a malfunction shall notify the Administrator by

telephone or facsimile (FAX) transmission as soon as possible, but no later than two business day s after the initial occurrence of the malfunction, if it wishes to avail itself of an affirmative defense to civil penalties for that malfunction. C ommenter 0228 suggested that this section be changed so that EPA broadens its communication options to include electronic media such as e

- mail to be used when the facility contacts the Administrator. The commenter’s state compliance staff sometimes requests submittal of the 48

- hour notifi cation via e

- mail rather than b y fax or telephone. In cases where telephone is more expeditious or there is cause for discussion, the regulatory agency might ask the owner or operator to follow up the phone call with a written form sent via e

- mail. **Respo nse**  **:** Based on Response from Shipbuilding/Wood Furniture p. 25 The EPA generall y accepts documents in electronic format, as long as the format is compatible with the requirements of the standards. For the affirmative defense provisions, the owner or operator of a facility experiencing an exceedance of its emission lim it(s) during a malfunction must notify the Administrator by

telephone or fax transmission of the exceedance. However, the written reports required to demonstrate that the affirmative defense provisions have been met. In the case of signed logs, the EPA acc epts electronically signed operating logs , where the format and method of submission meets the regulatory criteria and are compatible with the EPA ’s and the delegated authorities’ electronic submission systems. Any source submitting records electronically should exercise due diligence to assure receipt b y the EPA and the delegated authority

.148

**100. Comment**  **:** Affirmative Defense Language

. Commenter 0168 suggested that EPA clarify its affirmative defense provisi ons. While the commenter preferred that EPA use a r ebuttable presumption, should the Agency keep the affirmative defense concept, the commenter suggested the following modifications to the language to make it more u sable. The commenter understood that most of the provisions EPA proposed for the affirmative defense c ame from earlier guidance memos. While these provisions were in guidance, the Agency did not need to be careful of the wording , since they

were only

guidance and did not have the weight of regulation. However, if the Agency

wants to codify

this guidance into regulatory language, several changes are needed. For example, EPA should drop the reference to “any” activity in this section. There are also several references to “All” that would make it difficult to satisfy the requirements of an affirmativ e defense. In addition, the language in the provision is contradictory . In paragraph (a), the phrase “preponderance of evidence” is used , while later in that paragraph (iii), the language refers to “an y activity , ” meaning that more than preponderance of ev idence is needed. This same trend occurs in paragraphs (5) “All possible,” (6) “All,” (7) “All of the actions,” and (8) “At all times.” While “all” would include “preponderance,” “preponderance” does not mean all of the time. The commenter suggested that the phrase “preponderance of evidence” is adequate and the references to “all” and “any” in the later paragraphs should be modified. Commenter 0162 argued that the proposed affirmative defense as written was unreasonable and impracticable . According to the commenter, man y aspects of the affirmative defense would make it unavailable as a practical matter for many, if not most, malfunctions. The commenter said that EPA needed to substantiall y revise and streamline the proposed affirmative defense for it to be of practical value. Commenter 0162 stated that the affirmative defense provision in proposed §63.456(a) lists numerous conditions that the commenter said may be appropriate in determining whether excess emissions during a malfunction should be considered a violation, but ought not be listed as mandatory criteria, all of which a source has to meet to even raise an affirmative defense. As an example, the commenter cited proposed §63.456(a)(1)(i), which requires that, to establish an affirmative defense, the s ource must prove that the excess emissions were “caused b y a sudden, infrequent, and unavoidable failure of air pollution control and monitoring equipment, process equipment, or a process to operate in a normal or usual manner....” According to the commenter , there is no apparent reason wh y a “sudden” and “unavoidable” equipment failure or process upset leading to emissions greater than the MACT emission limitation should be considered a violation of the standards if it is not “infrequent,” even though it is “not part of a recurring pattern indicative of inadequate design, operation, or maintenance” and “[c]ould not have been prevented through careful planning, proper design or better operation and maintenance practices” (proposed §63.456(a)(1)(ii)&(iv) )

. Comm enter 0162 also noted that a number of the conditions for establishing an affirmative defense use phrases that are subject to a wide range of interpretations and do not appear reasonable or cost

- effective. The commenter inquired how an enforcement authority or judge could determine whether “proper design” or “better operation and maintenance practices” could have prevented a malfunction (§63.456 (a)(1)(ii)), whether a recurring malfunction is a result of “inadequate design” (§63.456(a)(1)(iv)), whether repairs were made “as expeditiously as possible” (§63.456(a)(2)), whether the source took “all possible steps” to minimize the impact of the excess emissions (§63.456(a)(5)), and whether emissions control sy stems “were kept in operation if at all possible”(§63 .456(a)(6)).149

Commenter 0162 acknowledged that, in some cases, it may have been possible to prevent the malfunction or further reduced the excess emissions if the source had spent huge amounts of money with little emission reduction or had imposed economically impracticable constraints on its operation. According to the commenter, the affirmative defense, as proposed, leaves open the possibility

that a source will be considered to be in violation because the enforcement authority decides subjectivel y that, in on e or more respects, it would have been “proper” or “possible” for the source to take further steps to prevent or minimize the malfunction. 142 Ineffect, the commenter contended, EPA or the court may impose an extreme version of MACT during malfunction period s, without any application of the beyond

- the

- floor factors in CAA section 112(d)(2). The commenter argued that, at a minimum, the vague and unqualified descriptors in the criteria for demonstrating the affirmative defense will inevitably lead to varying co nclusions as to whether a violation has occurred, resulting in inconsistency from one jurisdiction to the next. Commenter 0162 objected to the language in proposed §63.456(a)(6), which requires, as a condition for the affirmative defense, that all emission s “control sy stems were kept in operation if at all possible.” The commenter argued that the phrase “if at all possible” should not be used because it is an extreme term that bears no relation to good air pollution control practices. The commenter also indicated that this provision should be qualified, as the commenter said EPA has qualified similar provisions in the NESHAP GP in § 63.6. As an example, the commenter said these conditions should be qualified with caveats that the operation must be consistent with safety and good air pollution control practices, that it does not require the source to make further efforts to reduce emissions below what the standards require, and that it does not require regular operation of backup or standby pollution control equipment. 143 The commenter noted that that EPA has long recognized, in the NSPS GP , that it is appropriate to require sources to operate the affected facility

and related air pollution control technology “to the extent practicable...consistent with good air pol lution control practice for minimizing emissions” during SSM periods, not “if at all possible” (see § 60.11(d); see also, e.g. , § 63.480(j)(4) (during SSM events, Group I Poly mer & Resin plants are required to use “to the extent reasonabl y available, measure s to prevent or minimize excess emissions to the extent practical.”)). Commenter 0162 argued that EPA cannot abandon those rational approaches and adopt the kind of absolute requirements implied by the proposed rule, without an explanation of why it is nec essary and appropriate to do so. The commenter pointed out that EPA recentl y agreed to insert language in several NESHAPs to clarify that the general duty

to minimize emissions “does not require the owner or operator to make any further efforts to reduce e missions if levels required b y this standard have been achieved ” (76 FR 22566, 22583, col. 3 (April 21, 2011)). According to commenter 0162, proposed §63.456(a)(4) would preclude a facility from taking advantage of the affirmative defense if the malfunctio n involved bypassing control equipment or a process and the by pass was not “unavoidable to prevent loss of life, severe personal injury , or severe property damage.” The commenter asserted that this language is stated in such strong terms that it may be dif ficult or impossible for a source to demonstrate that it

142 In contrast, commenter 0162 noted, EPA has included provisions in other NESHAPs explicitly recognizing that back

- up control devices are not required. See, e.g. , 40 CFR 63.480(j) (“Back

- up control devices are not required, but may be used if available.”). 143 According to commenter 0162, EPA also determined it was appropriate to include those kinds of caveats in its regulation requiring proper operation and mainten ance of wastewater treatment facilities, in 40 CFR 122.41(e).150

meets this criterion, even though b ypassing the control equipment or the process was an appropriate exercise of good air pollution control practices. The commenter cited an example that a by pass can constitute the best air pollution control practice in response to an upset in order to prevent excess emissions ( e.g. , to avoid fouling of pollution control equipment media that in turn would result in reduced pollution control equipment efficiency or incr eased pollution control equipment downtime). The commenter further noted that there can be substantial room for disagreement about what constitutes “severe” property damage. The commenter also inquired about the degree of injury to emplo ye es that the by pas s must avoid in order to qualify as avoiding “severe” personal injury . According to the commenter, besides the unclear and subjective nature of these criteria, there is nothing inherent to section 112 standards that requires a source to avoid by

passing control equipment to such a degree. Lastly , the commenter argued that it is not apparent, and that EPA has not attempted to explain, why the CAA would not allow by passing “a process” in this way

. Commenter 0162 also objected to the language in proposed §63.45 6(a)(5), under which a source claiming the affirmative defense must prove that: “All possible steps were taken to minimize the impact of the excess emissions on ambient air quality , the environment and human health.” In addition to objecting to the subjective term “all possible steps,” the commenter also objected to the disconnect in this provision between the absolute and extreme requirement of the affirmative defense and the provisions of the CAA designed to attain ambient air quality standards and protec t human health and the environment. According to the commenter, the CAA does not require sources to take “all possible steps” to control emissions, even to minimize the impact of hazardous air pollutant emissions on human health under CAA section 112(f). In addition, the commenter indicated that it is unclear how this criterion for qualifying for the affirmative defense differs from proposed §63.456(a)(3), which requires that the frequency , amount, and duration of excess emissions “were minimized to the max imum extent practicable.” The commenter recommended that §63.456(a)(5) be eliminated, unless EPA explains what additional showing would be needed b y that paragraph. According to commenter 0162, the requirement in proposed §63.456(a)(9) that the source “hav e prepared a written root cause anal ys is to determine, correct and eliminate the primary causes of the malfunction and the excess emissions resulting from the malfunction event at issue” again does not implement the statutory criteria for standard

- setting under section 112. The commenter stated that the requirement, if read literally , would mean that a source could never take advantage of the affirmative defense if the source was unable to determine the primary cause of the malfunction or was unable to corr ect that cause. The commenter noted that EPA has defined a malfunction as an event that is “unavoidable” and unforeseeable, and “not reasonabl y preventable” (see proposed §63.456(a)(1)(ii)&(iii) and § 63.2) and indicated that, in many cases, it is expected that the primary cause(s) of the malfunction will not be ascertainable, or it will not be possible to identify

a way to ensure the malfunction will not recur. 144 Inaddition, the commenter argued that requiring the facility to eliminate the primary

causes of the malfunction

— without regard to “taking into consideration the cost of achieving such”

144 According to commenter 0162, EPA has long acknowledged this reality in the NSPS GP , which requires that written reports of excess emissions include the “nature and cause of any malfunction, if known....” See 40 CFR 60.7(b)(2) (emphasis added). The commenter argued that it would be arbitrary and capricious for EPA not to include similar language here.151

elimination and the “non

- air quality health and environmental impacts and energy requirements” associated with its elimination

—is unreasonable and entirely inconsiste nt with the criteria for standards established under CAA section 112(d). 145 Commenter 0168 suggested that EPA consider making the following modifications to the regulatory

language in §63.456 (using strikeout to show text deleted and underline to show text a dded) to address the concern s mentioned above and to make affirmative defense a more useful tool : § 63.456 Affirmative Defense for Exceedance of Emission L imit During Malfunction. In Response to an action to enforce the standards set forth in paragraphs §§ 63.443(c) and (d), 63.444(b) and (c), 63.445(b) and (c), 63.446(c), (d), and (e), 63.447(b) or § 63.450(d) the owner or operator may assert an affirmative defense to a claim for civil penalties for exceedances of such standards that are caused b y malfun ction, as defined at 40 CFR 63.2. Appropriate penalties may be assessed, however, if the owner or operator fails to meet the burden of proving all of the requirements in the affirmative defense. The affirmative defense shall not be available for claims for injunctive relief. (a) To establish the affirmative defense in any action to enforce such a limit, the owner or operator must timely

meet the notification requirements in paragraph (b) of this section, and must prove b y a preponderance of evidence that: (1) The excess emissions: (i) Were caused b y a sudden, infrequent, and unavoidable not reasonably preventable failure of air pollution control and monitoring equipment, process equipment, or a process to operate in a normal or usual manner, and (ii) Cou ld not have been reasonabl y prevented through careful planning, proper design or better operation and maintenance practices; and (iii) Did not stem from any activity or event that could have been reasonably foreseen and avoided, or planned for; and (iv) Were not part of a recurring pattern indicative of inadequate design, operation, or maintenance; and (2) Repairs were made as expeditiously as possible when the applicable emission limitations were being exceeded. Off

- shift and overtime labor were used, t o the extent practicable to make these repairs; and (3) The frequency , amount and duration of the excess emissions (including any by pass) were minimized to the maximum extent practicable during periods of such emissions; and (4) If the excess emissions r esulted from a b yp ass of control equipment or a process, then the by pass was unavoidable to prevent loss of life, personal injury , or severe property damage; and

145 As an example, commenter 0162 stated that it might be theoretically possible to eliminate the e xcess emissions associated with the malfunction by installing totally redundant pollution control equipment, or pollution control equipment with far more capacity than needed for normal operations. However, the commenter argued, this would not reflect the performance of the best performers on which the MACT “floor” is to be based, nor would it appear to take cost and other factors into consideration as the statute requires for beyond

- the

- floor MACT standards. The commenter further argued that the proposed r equirement to eliminate “the primary causes of the malfunction” and not just to eliminate “the excess emissions resulting from the malfunction event” lies entirely outside of EPA’s authority under the CAA, which the commenter said is limited to establishing and enforcing emission limitations, not dictating plant operations.152

(5) All possible Reasonable steps were taken to minimize the impact of the excess emissions o n ambient air quality , the environment and human health; and (6) All e Emissions monitoring and control s ys tems were kept in operation if at all possible, consistent with safety and good air pollution control practices; and (7) All of the aActions in resp onse to the excess emissions were documented by properl y signed, contemporaneous operating logs; and (8) At all times, t T he affected source was operated in a manner consistent with good practices for minimizing emissions; and (9) A written root cause anal ys is report has been prepared, the purpose of which is to determine, correct, and eliminate mitigate the primary causes of the malfunction and the excess emissions resulting from the malfunction event at issue. Facility personnel will determine the app ropriate ty pe of analy sis required (may include but not limited to root cause anal ys is, failure mode and effect, fault tree, etc.) to identify the cause of the malfunction . The analy sis report shall also specify, using best monitoring methods and engineeri ng judgment, the amount of excess emissions that were the result of the malfunction. (b) Notification. The owner or operator of the affected source experiencing an exceedance of its emission limit(s) during a malfunction shall notify the Administrator by telephone or facsimile (FAX) transmission as soon as possible, but no later than two business day s after the initial occurrence of the malfunction, if it wishes to avail itself of an affirmative defense to civil penalties for that malfunction. The owner or operator seeking to assert an affirmative defense shall also submit a written report to the Administrator within 45 day s of the initial occurrence of the exceedance of the standard in paragraphs §§ 63.443(c) and (d), 63.444(b) and (c), 63.445(b) and (c), 63.446(c), (d), and (e), 63.447(b) or § 63.450(d) to demonstrate, with all necessary supporting documentation, that it has met the requirements set forth in paragraph (a) of this section. The owner or operator may seek an extension of this deadline for up to 30 additional day s by submitting a written request to the Administrator before the expiration of the 45 day period. Until a request for an extension has been approved b y the Administrator, the owner or operator is subject to the requirement to submit su ch report within 45 days of the initial occurrence of the exceedance. **Response :**  Based on Response from Shipbuilding/Wood Furniture Many of the conditions in the affirmative defense are modeled after the affirmative defense in EPA’s State Implementation Plan ( SIP ) SSM policy , see, e.g. , State Implementation Plans: Policy Regarding Excessive Emissions During Malfunctions, Startup, and Shutdown (Sept. 20, 1999); other conditions are modeled after a Federal Implementation Plan (FIP) promulgated by EPA ( § 50.1 312). The EPA’s view is that use of consistent terms in establishing affirmative defense regulations and policies across various CAA programs will promote consistent implementati on of those rules and policies. The EPA believes the affirmative defense criteria are well

- defined and will assist EPA and the courts in making reasoned determinations as to the establishment of affirmative defenses. The EPA and the courts have expertise and experience in evaluating and appl yi ng criteria such as those for the affirmative defense. As noted above, many of the conditions were modeled after the conditions of the affirmative defense in EPA’s SIP SSM policy , which several states have adopted into their SIPs. We do not have any indi cation that parties to enforcement proceedings153

have had an y significant difficulties applying the terms of these SIP affirmative defenses. However, EPA believes that some of the terms or phrases in the regulatory text establishing the affirmative can be re vised or streamlined to some extent. Based on Response from Oil and Gas The EPA has evaluated some of the affirmative defense criteria as follows for promulgation:

 Timely

Notification : The EPA has removed the requirem ent to notify the EPA within 2 day s of violation of a standard in order to be able to avail themselves to a claim for affirmative defense . The EPA instead allows owners or operators seeking to assert an affirmative defense to demonstrate, with all necessary supporting documentation (as was required under the proposed 45

- day report), that it has met the affirmative defense criteria by submittal of the affirmative defense report in the first periodic compliance, deviation report or excess emission report otherwise required after the initial occur rence of the violation of the relevant standard (which may be the end of any applicable averaging period). If such compliance, deviation report or excess emission report is due less than 45 day s after the initial occurrence of the violation, the affirmativ e defense report may be included in the second compliance, deviation report or excess emission report due after the initial occurrence of the vio lation of the relevant standard

. This change provides sources with sufficient time to demonstrate that they hav e met the required affirmative defense criteria.
 “Infrequent” Events : The EPA believes that if malfunctions occur on a frequent basis that the basis for the malfunction more likely falls in the categories of poor design, poor operational decision making, o r failure to operate a source in a normal manner and has retained the word “infrequent” in this criteria element.
 “ Off

- shift and overtime labor”: The EPA believes that , rather than impair a sources response to a malfunction, the use of off

- shift and overt ime labor supports the premise that urgency

is necessary to minimize to the maximum extent practicable all excess emissions associated with a malfunction and has retained this language in the criteria. Severe Property Damage: The EPA believes that a bypass of control equipment or a process, which results in a violation, should be an exception and not undertaken lightl y, and has maintained the word “severe” in this criteria.
 Signed Operating Logs : As an alternative, the EPA accepts electronicall y signed ope rating logs where the format and method of submission meets the regulatory criteria and are compatible with the EPA and the delegated authorities’ electronic submission sy stems. Any

source submitting records electronically should exercise due diligence to ass ure receipt b y the EPA and the delegated authority

.  Root Cause Analy sis : The EPA believes it has provided clear criteria within the affirmative defense provisions to support the development of an affirmative defense report. The EPA believes that these provisions will result in a minor administrative burden, but will result in sources analyzing their violation emissions to reduce or avoid those emissions in the future, which is an environmental benefit. A root cause anal ys is is not mandatory

and is only

required if a source seeks to assert an affirmative defense. However, such an an al ys is is beneficial in resolving or preventing violations and excess emissions whether the source seeks to assert the affirmative defense or not. A root cause anal ys is is one example of what constitutes good air pollution control practices to154

minimize emi ssions. A root cause analy sis is not required for every malfunction, as specified above, and is only required for those malfunctions for which the source chooses to assert an affirmative defense

. **101. Comment**  **:** Burden

. Commenter 0162 said that it was uncle ar where EPA found the legal authority in the CAA to shift the burden to the regulated community of proving (or disproving) essential elements of an alleged violation. The commenter stated that the CAA is silent as to the issue , and “the ordinary

default r ule [is] that plaintiffs bear the risk of failing to prove their claims.” Shaeffer v. Weast , 546 U.S. 49 (2005), quoting McCormick on Evidence §337, at 412 (“The burdens of pleading and proof with regard to most facts have and should be assigned to the plaintiff who generally

seeks to change the present state of affairs and who therefore naturally should be expected to bear the risk of failure or proof or persuasion”); C. Mueller & L. Kirkpatrick, Evidence §3.1, p. 104 (3d ed. 2003) (“Perhaps the broadest and most accepted idea is that the person who seeks court action should justify the request, which means that the plaintiffs bear the burdens on the elements in their claims”). According to the commenter, while the Supreme Court has recognized exceptions su ch as affirmative defenses, courts retain the authority to establish such rules unless Congress acts to delegate that authority

. Finally , commenter 0162 rejected as unreasonable and unnecessary the requirement in proposed §63.456(b) to notify the Administrator by

telephone or fax as soon as possible, but no later than two business day s after the malfunction begins, and then to submit a written report within 45 day s of the initial occurrence of the malfunction that demonstrates, “with all necessary supporting documentation,” that the source met all of the multitude of criteria for the affirmative defense. The commenter stated that it is novel at best for a person to be determined to have acted unlawfully

unless the person has submitted his entire def ense before he is even notified of a potential enforcement action. The commenter pointed out that, in many cases, it would be obvious to the enforcement authority , based on the kind of short malfunction or deviation report sources already submit under man y air programs, that an exceedance of the proposed standards resulted from an unforeseen and unavoidable equipment failure or process upset. According to the commenter, it is extremely inefficient and burdensome, for both sources and regulators, to require a complete justification of the affirmative defense before the enforcement authority has indicated any need for further investigation. Other commenters (0164, 0168, 0163 and 0 207 **)** also pointed out that , since EPA would require a source operator to demonstrate he qualifies for the affirmative defense at the time the exceedance occurs, the p ro posed SSM p rovisions would impose huge paperwork burdens on industry and on the enforcement agencies that are not necessary or justifiable. Commenter 0164 stated that promulgating a requirement that EPA knows cannot be met with the identified control technology , and then forcing a company to prove it is entitled to suspension of civil penalties for such events, raises serious constitutional questions. Commenter 0164 not ed that even if it were legally acceptable (which it is not) for EPA to promulgate unworkable emission standards and then offer an affirmative defense to penalties for the expected exceedances of those standards, the restrictions and requirements EPA propo ses for the affirmative defense are unreasonable and impracticable. If EPA persists in relying on a defense contained in the standards in lieu of promulgating proper standards that appl y during malfunction periods, the affirmative defense in the p roposed r

ule would at a minimum require substantial modification and streamlining.155

According to commenter 0162, since the affirmative defense is only available if all criteria are met, including the 48

- hour and 45

- day notifications, and since sources will have no way of knowing whether there might be an enforcement action or citizen suit at some point in the future addressing the period affected b y a malfunction, sources will need to submit notifications of the malfunction, with all the supporting documentation, wh enever a malfunction defense could be claimed. The commenter asserted that this will swamp EPA and state agencies with unnecessary

paperwork, and for no clear benefit. The commenter further noted that, if EPA ultimately

were to conduct a rulemaking to elim inate the excess emission provisions, despite the commenter’s arguments for retaining them, there would be even more oral and written reports under the proposed affirmative defense. The commenter noted that the events covered b y the excess emissions may

oc cur often and, while they may last onl y a few minutes, a mill would have no way

of knowing whether those incidents might later be part of an enforcement action, so the mill may

feel compelled to report each of them under the affirmative defense notificatio n **Response:** Based on R esponse from Secondary Pb **The** EPA’s view is that an affirmative defense to civil penalties for exceedances of applicable emission standards during periods of malfunction appropriately balances competing concerns. On the one hand, citizen enforcers are concerned about additional complications in their enforcement actions. On the other hand, industrial sources are concerned about being penalized for violations caused by malfunctions that could not have been prevented and were otherwise appropriate handled (as reflected in the affirmative defense criteria). The EPA has used its section 301(a)(1) authority to issue regulations necessary

to carry out the Act in a manner that appropriatel y balances these competing concerns. As discussed prev iousl y, the EPA has revised the immediate notification and 45

- day malfunction report. The EPA has removed the requirements to notify the EPA within 2 day s of violation of a standard and has allowed owners or operators to submit the affirmative defense repo rt in the next periodic compliance, deviation report, or excess emission report. This should reduce the burden on the agencies and industry

. **102. Comment**  **:** Injunctive Relief

. Commenter 0168 noted that EPA does not allow facilities to assert an affirmative defense for the exceedance of an emission limit during malfunctions if EPA is seeking to enforce that emission limit through injunctive relief. The commenter said that the Agency apparently takes that position based on a memorandum, State Implementation Plans: Policy Regarding Excessive Emissions During Malfunctions, Startup, and Shutdown at 2 (Sept

. 20, 1999). (SIP SSM Memo) The commenter asserted that this policy is wrong. The typ e of legal acti on or relief should have no bearing on the availability of this defense. A malfunction is not affected b y the type of enforcement action that EPA may eventuall y bring. Indeed, because a malfunction is not reasonably preventable, enforcement actions, regardless of ty pe, have no deterrent effect on them. Therefore, the typ e of legal action EPA uses to enforce a violation of its emission limits is simply

irrelevant to whether the violation should be excused because of circumstances beyond the facilities’ control. Consequently , commenter 0168 asserted that not allowing an affirmative defense in an action for injunctive relief is arbitrary and capricious

. As the D.C. Circuit Court stated in Essex Chem. Corp. v. Ruckelshaus , 486 F.2d 427. 433 (D.C. Cir. 1973) a ca se reviewing a section 111 rule, the D.C. Circuit C ourt held that SSM provisions are “necessary to preserve the156

reasonableness of the standards as a whole.” The D.C. Circuit Court of Appeals has also noted that “[a] technology

- based standard discards its f undamental premise when it ignores the limits inherent in the technology.” NRDC v. EPA , 859 F.2d 156, 208 (D.C. Cir. 1988). Therefore, EPA should not apply

a policy drafted to “ensure that SIPs provide for attainment and maintenance of the national ambient air quality standards (“NAAQS”) and protection of prevention of significant deterioration (PSD) increments” and other risk

- based programs, SIP SS M Memo at 2, to the CAA section 129 technology

- based program. **Response :**  Based on Response from Secondary Pb

. The EPA has addressed the issue of affirmative defense and injunctive relief here and in other recent rulemaking decisions. In exercising its authority under section 112 to establish emission standards (at a level that meets the stringency

requirements o f section 112), EPA necessarily defines conduct that constitutes a violation. The EPA’s view is that the affirmative defense is part of the emission standard and defines two categories of violation. I f there is a violation of the emission standard and the source demonstrates that all the elements of the affirmative defense are met, onl y injunctive relief is available. All other violations of the emission standard are subject to injunctive relief and penalties. Based on Response from Shipbuilding/W ood Furniture Many

of the conditions in the affirmative defense are modeled after the affirmative defense in EPA‘s SIP SSM policy , See, e.g., State Implementation Plans: Policy Regarding Excessive Emissions During Malfunctions, Startup, and Shutdown (Sept. 20, 1999); o ther conditions are modeled after a FIP promulgated by EPA. ( § 50.1312) The EPA‘s view is that use of consistent terms in establishing affirmative defense regulations and policies across various CAA programs will promote consistent implementation o f those rules and policies. Although, as the commenter notes, the SIP policy does not apply

to technology

- based standards because the expectation was that technology

- based standards would contain provisions that already account for technological limitation s, nothing in the policy addresses the form that such provisions in technology

- based standards should take. As explained above, EPA has determined that including affirmative defense provisions in such standards is appropriate and reasonable. The commenter do es not explain their view that the terms of the SIP policy

are not appropriate to address malfunctions in the CAA section 112 context. The affirmative defense does not require a facility to prove its innocence rather than requiring an enforcement authori ty to prove a violation of the CAA or change the burden of proof with respect to establishing a violation. The affirmative defense applies only where a violation has been established. The burden of proof that a violation occurred remains with the plaintiff in an enforcement action. See, e.g., § 22.24. If a violation has been established and a source wishes to assert the affirmative defense with respect to penalties, the source does bear the burden of establishing that the elements of the affirmative defense have been met. This burden

shifting is appropriate because the source is in a better position to determine the facts required to establish the defense. See, e.g., Arizona Pub. Serv. Co. v. EPA , 562 F.3d 1116, 1120, 1129

- 30 (10th Cir. 2009) (rejecting indus try challenge to EPA‘s use of an affirmative defense to address excess emissions during malfunction events.). The notification and reporting requirements are not unreasonable and are consistent with other malfunction reporting and notification requirements that have been applied without significant difficulty. ( See, e.g., §§ 63.6(e)(3)(iv) and 63.10(d)(5)(ii)

. ) Section 114 of the CAA clearly provides authority

to require such reports.157 

## 8. **Excess Emissions Allow**  **ances 103**  **. Comment:**  Excess Emissions Provisions Must Be Removed

. Commenter 0218 recommended that the EPA remove the “ excess emissions provisions ” for all parts of the pulp and paper source categ ory , stating that exempting sources from compliance with emission standards at an y time violates CAA section 112 and section 302, which makes clear that emission standards under section 112 must require continuous compliance. The commenter argued that the excess emissions allowance provisions are just as unlawful as the SSM exemption that the D.C. Circuit Court found to be unlawful, and for the same reasons. The commenter stated that :
 The provisions should require continuous control;
 The EPA should not consider an y of the alternatives that still allow an exemption; and
 The EPA may

not set an “alternative numerical emission limit ” that would apply during times when “ no control device is available ” due to equipment or process “ downtime, ” or some other problem in the sy stem that is a malfunction

. The commenter note d that , as EPA ’s proposal makes clear th at there is no evidence that the malfunctions, downtime, losses, damage, and other problems described could possibly qualify for a work practice s tandard under section 112(h)(4), the EPA must set a numerical emission standard “ whenever it is feasible ” to d o so . The commenter concluded that it may be necessary

for sources to appl y backup or secondary control devices, or detection or repair alerts, in order to prevent uncontrolled emissions. The commenter stated that the EPA ha d no lawful or rational basis fo r failin g to remove all exemptions for “ excess emissions ” for this source category

. **Response :**  We acknowledge the commenter’s concern regarding excess emission allowances. We have received more information from the industry regarding these allowances and will take action on them at a later date. **10 4**  **. Comment:**  Future C orrespondence/D iscussion

. Commenter 0162 stated that, in addition to conducting the 8

- year review of developments in control technologies under CAA section 112(d)(6) and the residual risk review under CAA section 112(f) for the pulp and paper category , EPA has indicated recently that it is considering eliminating or modifying the excess emission provisions in § § 63.443(e) and 63. 446(g) (See 76 FR 81346). The commenter contended that it would be improper and unlawful to do so. Moreover, EPA would need to publish a proposed rule for public comment before it could change the excess emission provisions. The commenter appreciate d EPA granting an extension until June 27, 2012 for commenter s to provide information related to excess emission provisions. 146 Th e commenter said th is time w ould be critical for NCASIto undertake the survey described in their letter to Robin Dunkins of EPA

. 147 Alth ough the comm enter could have deferred providing any information on

146 See February 22, 2012 letter from EPA Assistant Administrator Gina McCarthy to AF&PA Vice President Paul Noe. 147 See e

- mail dated February 15, 2012 from Vipin Varma of NCASI to Robin Dunkins of EPA’s Sector Policies and Programs Division.158

this issue, the commenter shared their legal views and general observations about the need and use for the excess emissions provisions. The commenter stated they will provide additional co mments on the subject before June 27, 2012. The commenter stated that the pulp and paper industry was not aware of the potential for evaluation of the excess emissions allowances until approximately 1 month before the proposed rule was published. As such, there has been little coordination between the Agency and the commenter to discuss the justification for these provisions or the implications of changing them. Therefore, in addition to filing subsequent comments, the commenter would like to work with the Agency

and set up meetings to discuss these issues, as they are complex, and an efficiency will be gained through coordination to assist the Agency in comprehension of these s ys tems and their limitations and to develop realistic conclusions. **Response :**  We acknowledge the commenter’s concern regarding the removal of the excess emission allowances. We are deferring action on the allowances until a later date and will follow the proper regulatory procedures of proposing the changes, providing a public comment period, and promulgatin g a final rule. We acknowledge and appreciate the commenter’s efforts for providing more information regarding the allowances. We have been coordinating efforts to discuss the allowances with industry , and the knowledge gaine d during the discussions, as well as the data we receive d on June 27 th , have greatl y assist ed us in evaluating the removal of the excess emission allowances. **10 5**  **. Comment:**  Current Excess Emission Provisions Represent MACT and Were Included in the MACT Flo or . Commenter 0162 stated that the excess emission provisions in the current s ubpart S rule reflect EPA’s careful determination, after ye ars of study of a large quantity of emissions information and public comments, that the MACT “floor,” representing the emissions of the “best performers,” includes emissions during unavoidable periods of releases of uncontrolled or partiall y- controlled pulping process vent gases and unavoidable sewering of untreated or partiall y- treated pulping process condensates (See 63 FR 18504, 18529 (April 15, 1998)). The commenter cited the 1998 FR notice, as follows: EPA established appropriate excess emission provisions to approximate the level of backup control that exists at the best

- performing mills and the associated period of time during which no control device is available.” Id . After “an analy sis of the public comments and the available data regarding excess emissions and the level of backup control in the industry ,” EPA determined that the “best

- performing mills achieve a one percent downtime in their LVHC sy stem control devices” and “best

- performing mills achieve a four percent downtime in the control devices used to reduce emissions from their HVLC sy stem to account for flow balancing problems and unpredictable pressure chan ges inherent in HVLC control sy stems.” Id . “The allowances address normal operating variations in the LVHC and HVL C sy stem control devices for which the equipment is designed. The variations would not be considered startup, shutdown, or malfunction under the Part 63 General Provisions....” (See 63 FR 18530). The 10 percent excess emission provisions for steam strippers s ys tems “accounts for stripper tray damage or plugging, efficiency losses in the stripper due to contamination of condensate159

with fiber or bla ck liquor, steam supply downtime, and combustion control device downtime.” Id

. The commenter noted that EPA adopted the excess emission provisions after reviewing extensive data from continuous monitoring sy stems and considering industry comments . Industry told EPA that , while some mills have backup combustion devices as part of their LVHC control sy stem, venting of pulping gases is an essential safety practice (because of their explosion hazard) . It is essential even for those s ys tems with backup control devices , since the startup of, and transfer of vent gases to, the backup controls cannot be immediate or automatic for safety reasons, and operating variability in the control devices themselves i s unavoidable fo r process and other reasons. 148 The commenter noted that , for HVL C sy stems, few mills had backup controls that could handle the large volume of vent gases, so any standard that required the use of backup devices would have been beyond the MACT “floor” and wo uld not have been cost

effective due to the low concentration of pollutants in the large gas stream. 149 In short, the commenter contended that the MACT determinations EPA made when promulgating the original s ubpart S emission standards correctl y concluded th at available technology

involves unavoidable periods where not all vent gases or condensates can be routed to the control device, and/or when the control device is inoperable or necessarily operating at a reduced rate. The s ubpart S emission standards (inc luding the excess emission provisions) were designed to reflect the performance of the MACT technology and the actual performance of the “best performing” mills. Without the excess emission provisions, the remainder of the s ubpart S emissions standards wou ld impose limitations not achieved even b y the “best performers” and not demonstrated as achievable at any facility. The commenter argued that this plainly is not what Congress intended. 150 **Response :**  We acknowledge the commenter’s discussion of the development and use of the excess emission allowances. We also agree that the excess emission provisions were developed using extensive data during the promulgation of the original rule. We are deferring action regarding the excess emission allowances in order t o analyze more recent information that we have obtained from industry

. **10 6**  **. Comment:**  N o Technical Justification for Eliminating Excess Emission Provisions

. Commenter 0162 noted that EPA is supposedly carrying out Congress’ directive in CAA section 112(d)(6 ) that, at least every 8 years, EPA review whether “developments in practices, processes, and control technologies” necessitate revision of MACT emissions standards. The commenter

148 See, e.g. , Pulp, Paper and Paperboard Industry

– Background Information for Promulgated Air Emission Standards

– Final EIS, EPA

- 453/R

- 93

- 050b (October 1997) (“BID”) at 4

- 81, 4

- 82 to 4

- 84; AF&PA April 18, 1994 comments on the proposed MACT standards for Pulp and Paper Mills, p. MACT

- 61 (events resulting in venting of NCGs are “integral to process variability,” and combustion devices will “predictably” not perform at their design efficiency ”some small p ercentage of the time, even when they are being operated properly and all equipment is in order”); id. p. MACT

- 173

- 74. 149 See 63 FR 18529; BID at 4

- 81 to 4

- 82; AF& PAA pril 18, 1994 comments at MACT

- 61 (degree of venting allowance needed is “independent of the availability of backup combustion devices because of the safety and engineering concerns”); id. at MACT

- 174 (backup combustion devices for HVLC systems could b e an additional cost of $1 billion. 150 See, e.g. , Sierra Club v. EPA , 353 F.3d 976, 980 (D.C. Cir. 2004); Sierra Club v. EPA , 167 F.3d 658, 665 (D.C. Cir. 1999).160

stated that nothing has changed about the technology available to control vo latile HAP emissions at pulp mills that eliminates the unavoidable excess emissions during the events that EPA accuratel y described when promulgating the current MACT standards. Absent such new technology , the commenter believes there is no statutory predi cate for EPA to go back and change the MACT standards at this time. 151 The commenter argued that even if the section 112(d)(6) technology review were an opportunity

to second guess and revise the existing MACT standards, EPA has no technical basis for eliminating the s ubpart S excess emission provisions. The commenter stated that an agency cannot simply

change its mind and reach a diametrically

- opposed conclusion from the determination made in a prior rulemaking. Rather, EPA must demonstrate sufficient basis for changing its prior conclusions; in this case, technical justification for concluding that mills with MACT controls do not experience the unavoidable variability described b y EPA in promulgating the s ubpart S rule and accommodated by the excess emission provisions. 152 The commenter stated that there is no health or environmental imperative for eliminating the excess emission provisions in s ubpart S. The commenter noted that EPA has just completed its “residual risk” review and concluded that there is no significant risk from emissions (including excess emissions) allowed un der s ubpart S. The commenter noted that the emissions data that EPA used in its risk modeling included emissions during by passing of control equipment or other excess emissions covered b y the s ubpart S excess emission provisions. Similarly , commenter 0172 contended that it would be improper and unlawful for EPA to limit or eliminate the excess emissions allowances for LVHC, HVLC, and strippers. The commenter argued that EPA does not have the authority to modify

or eliminate the excess emissions allowance provisions for pulp mill venting or steam strippers included in s ubpart S. These existing provisions were part of the MACT floor for this subcategory and cannot be modified without demonstrating that there have been “ developments in practices, processes and control technologies ” or that there is a change necessary to protect human health in a “residual risk” review. The commenter asserted that EPA has not made either demonstration. **Response :**  We acknowledge the commenters ’ concern s regarding the removal of the excess emission allow ances. We have received more information regarding these allowances and will take action on them at a later date. **1 07**  **. Comment:**  Intervening Court Decisions Do Not Justify Eliminating Excess Emission Provisions

. Commenter 0162 argued that intervening court decisions do not justify eliminating the excess emission provisions. The s ubpart S NESHAP was never judicially challenged, and the time for such a challenge under CAA section 307(b) has long passed. Even if there were some portion o f an opinion in one of the many cases challenging other NESHAPs that was contrary to the approach EPA took in promulgating s ubpart S, that would not provide a means nor a

151 Cf. NRDC v. EPA , 529 F.3d 1077, 1084 (D.C. Cir. 2008) (rejecting contention that CAA section 112(d)(6) requires EPA to “start from scratch” and develop new MACT standards). 152 See, e.g. , FCC v. Fox Television Stations, Inc. , 556 U.S. 502, 129 S. Ct. 1800, 1811 (2009) (“a reasoned explanation is needed for disregarding facts and circumstances that underlay...the prior policy”); Transactive Corp. v. United States , 91 F.3d 232, 237 (D.C. Cir. 1996).161

justification for reopening s ubpart S standards that were never challenged on that grounds. 153 Regardless, the commenter contended that none of the holdings in other cases undercuts inclusion of the excess emission provisions in s ubpart S. The commenter acknowledged that EPA may believe that elimination of the excess emission provisions is justified or required b y the D.C. Circuit Court ’s decision in Sierra Club v. EPA , 551 F.3d 1019 (D.C. Cir. 2008), cert. denied, 130 S. Ct. 1735 (2010), which vacated the “exemption” for excess emissions during SSM events contained in the 40 CFR p art 63, s ubpart A GP . The commenter noted EPA’s suggestion that the excess emission provisions are “arguabl y at odds with” that decision (See 76 FR 81346). To the contrary , the commenter believes the D.C. Circuit Court ’s Sierra Club decision is not inconsistent with, and would not justify EPA’s retroactive elimination of, the s ubpart S excess emission provisions. The commenter provided three reasons in support of their position:

 First, the Sierra Club decision interpreted the NESHAPs GP , not the s ubpart S NESHAP or indeed an y categorical NESHAPs.

 Second, the decision addressed an exemption for startups, shutdowns, and malfunctions, while the s ubpart S excess emission provisions for pulping vent gases specifically does not address excess emissions during SSM (see §63 .443(e)), and the provision for pulping condensates onl y covers such events because EPA did not have data to distinguish those situations from “normal stripper operating emissions” ( s ee 72 FR 18529

- 30).

 Third, the Sierra Club decision rejected the GP ’ s blanket, open

- ended exemption for emissions during SSM periods, finding it to be inconsistent with Congress’s intention that “there must be continuous section 112

- compliant standards” for sources subject to MACT standards, rather than periods where no standard of an y kind applies. See 551 F.3d at 1027. The problem with the GP SSM exemption, in the D.C. Circuit Court’s eyes, was that it allowed sources to be exempt from any standard at all, and that it was not derived (b y EPA’s admission) applying the factors i n CAA section 112(d) or 112(h). See id. at 1027

- 28, 1030. The Sierra Club opinion did not address a situation, such as the s ubpart S standards, where EPA finds that the MACT standard, which applies continuously , must account for periods of higher emissions during unavoidable operational variability

to accuratel y reflect the available technology and the best performers’ emissions. 154

153 See id. and, e.g. , Sierra Club v. EPA , 353 F. 3d at 986 (MACT standards judged on the adequacy of EPA’s explanation in the particular rulemaking, not on wh at EPA did based on a different record in a different rulemaking). 154 See BID at p. 1

- 41 (“

EPA established excess emission allowances to approximate the level of downtime and number of backup control devices that exist at the best

- performing mills. The Excess emissions allowances are designed to account for periods when the control device is inoperable and when the operating parameter values established during the initial performance test cannot be maintained due to problems with the process. ”). Thus, the co mmenter contended that EPA’s statement, in the preamble to the proposed rule, that the excess emission provisions of the current regulations “create time periods during which a source does not have to comply with a CAA section 112

- com

pliant standard” (see 76 FR 81 346) is simply contrary to the record for the existing Subpart S rulemaking.162

**Response :**  We acknowledge the commenter’s concern regarding the removal of the excess emissio n allowances. We have received more information regarding these allowances and will take action on them at a later date. **10 8**  **. Comment:**  Provisions Are Consistent with CAA

. According to c ommenter 0162 , EPA lacks authority to go back and re

- assess the existing MACT standards for reasons unrelated to CAA sections 112(d)(6) and 112(f). But even if EPA did have authority , the commenter argued that the excess emission provisions in the existing s ubpart S regulations are entirely consistent with the CAA and with past EPA practice. The commenter stated that the excess emissions provisions represent the performance of the best

- performing mills. The commenter stated that without the excess emission provisions, the s ubpart S standards would violate CAA section 112 because section 112(d) standards are supposed to represent "the emissions control that is achieved in practice" b y the best performers, which means that the best

- perfoming mills would not violate the standards, which “onl y results if ‘achieved in practice’ is interpreted to mean ‘achieved under the worst foreseeable circumstances.’” Sierra Club v. EPA , 167 F.3d 658, 665 (D.C. Cir. 1999). The courts (and EPA) have recognized that there is variability in the performance of control technologies, which needs to be accounted for in establishing emission limitations based on the MACT floor. See, e.g. , Cement Kiln Recycling Coalition v. EPA , 255 F.3d 855, 862

- 865 (D.C.Cir.2001). As the record reflects, it is certainly foreseeable that even the best performers would experience violations of the MACT standards, due to process variability and control technology

limitations, without an excess emission allowance. According to the commenter , EPA has implie d that the excess emission provisions in the existing s ubpart S regulations somehow are inconsistent w ith the D.C. Circuit Court ’s vacatur of the NESHAP GP SSM exemption because they do not provide a numerical limitation on emissions during certain periods (See 76 FR 81346). However, according to the commenter, nothing in Sierra Club v. EPA said that MACT standards have to be the same at all times; to the contrary , the Court recognized that they might not be. See 551 F.3d at 1021, 1027. The commenter stated that the excess emission allowances are no different in principle from the averaging periods that EPA applies almost universally in setting the MACT standards: a source complies with the average emission limitation even though there are times during the averaging period when the source’s emissions are much higher than the rate specified in the standard. A lso, EPA has included excess emission provisions analogous to those in s ubpart S in NSPS issued under CAA section 111, even though the same definition of “emission limitation” and “emission standard” (relating to limiting emissions of air pollutants on a c ontinuous basis) applies to NSPS. For example, in the NSPS for Kraft pulp mills, EPA recognized the complex factors affecting recovery furnace operations and provided an excess emission allowance (§60.284(e)), in addition to the SSM provision in §60.8(c). The commenter stated that, in effect, elimination of the excess emission provisions would put pulp and paper mills in a “Catch

- 22” situation: the MACT standards would no longer accommodate the excess emissions that EPA knows will occur regularl y during nor mal mill operations, as a result of process variability and control equipment operations and availability

. Yet those same events would appear to be ineligible for the “affirmative defense” that EPA proposes as a means of addressing excess emissions that oc cur despite a source’s proper design and operation, since the “affirmative defense” is only available for excess emissions that result163

from unforseeable and infrequent events ( s ee proposed §63.456(a)). This would be unreasonable, arbitrary and capricious, and not in any way required b y the CAA or judicial precedent. **Response :**  We acknowledge the commenter’s concern regarding the removal of the excess emissio n allowances. We have received more information regarding these allowances and will take action on them at a later date. **10 9**  **. Comment:**  Excess Emission Provisions Necessary D ue to Inherent Process Variability , Design, and Technology

Reasons

. Commenter 0162 stated that the exces s emissions provisions are necessary

to accommodate inherent process variability , design, and technology features. Provisions for a small amount of LVHC and HVLC sy stem venting and stripper downtime were developed as part of the MACT “floor,” based on the fact that even the best

- performing units could not meet the standards at all times. As the technology for the collection and treatment of HAPs under s ubpart S has not changed, neither has the capability for mills to operate without needing these provisions . These provisions are necessary due to process variability and not for situations defined as SSM. These events generally are not due to situations where some equipment has broken down and must be repaired to correct the situation, but are due to process v ariability

and safety interlocks which have caused a situation that requires a release. Commenter 0172 explained that vent gas collection sy stems are built to collect emissions from process equipment and to route these emissions to a single control device for destruction. Examples under s ubpart S include collection of vent gases from digester sy stems (which are commonly

composed of multiple batch digesters), evaporator trains (some mills have more than one), condensate collection tanks, turpentine recovery s ys tems, stripper feed tanks, and heat recovery s ys tems. The collected gases from these sy stems are routed to an incineration device (ty pically a stand

- alone incinerator, lime kiln or boiler) for destruction. This incinerator may be located a considerable distance from the process equipment and , thus , very long piping runs are involved. In order to protect the s ys tem, safety release vents are built into the piping s ys tem to protect it from over

- (or under

- ) pressure spikes from the process equipment. These devices are referred to as pressure/vacuum (PV) valves and rupture disks. According to commenter 0172, e ven at the best performing mills, at all times during periods of SSM, the process equipment may be subject to over

- pressure or high

- temperature spikes. Furthermore, given the complexity of these sy stems and the sources they control, there may be normal operating periods where process variability creates a momentary

pressure or temperature fluctuation. These pressure/temperature spikes need to be relieved by releasing to the atmosphere immediately through the PV valves close to the process e quipment to prevent damage to the piping sy stem. Opening a vent valve at the control device (which may be located a long distance from the process equipment) does not provide sufficient protection for the piping sy stem. The EPA must retain the excess venti ng allowance for these situations to avoid unfairly penalizing facilities for safety- related venting to protect key process equipment. C ommenter 0172 stated that EPA must recognize that the venting allowance applie s to the vent collection s ys tem as well as the final control device. The EPA has stated that the venting allowance applies only

from the sy stem as a whole and not from individual sources and that the control device must be inoperative for the gas stream to legitimatel y by pass the control164

sy stem. 155 However, as described above, to protect vital equipment , there are normal operational situations requiring venting of gases immediatel y in the closed

- vent collection sy stem near the process equipment , which may be l ocated far from the control device. Even if it were possible to vent at the control device in such instances, EPA’s interpretation that the venting allowance is applicable onl y if the control device is inoperative is not appropriate given the complex nature of the closed

- vent collection sy stem. The most obvious solution, and the one that minimizes emissions to the maximum extent possible, would be to recognize the safety and technical need for localized pressure relief b y allowing venting (subject to the 1 percent/4 percent allowance) any where within the closed

- vent collection sy stem where safety- related venting is required , while maintaining normal operation of the final control device to control emissions from all the other process equipment in the sy stem. C ommenter 0172 stated that venting from LVHC and HVLC s ys tems can occur as a result of normal process variability not associated with startups, shutdowns, or malfunctions in pulp mill process equipment, closed

- vent collection sy stems, or vent gas control equipment. The 1 percent/4 percent venting allowance is necessary to protect mills from enforcement exposure during these normal events. One example of this variability is a sudden change in the steam sy stem pressure , which can be caused by sudden shutdown of process equipment outside the pulp mill (such as a paper machine) or an operational problem with one of the boilers themselves (such as interruption of fuel flow to a power boiler or loss of black liquor to a recovery furnace). This sudden spike or reduction of steam pressure could cause two problems resulting in venting from the closed vent control sy stem or at the final control device:
 Steam eductors in the vent gas control sy stem would not maintain sufficient vacuum in the closed vent control s ystem , causing an overpressure situation which would cause the PV valves to open.
 This sudden change in steam header pressure could cause operational problems in pulp mill equipment such as an evaporator s ys tem. The sudden pressure change could cause the evapo rator to “carry

over” black liquor from one of the effects into the vapor space of the unit, creating an unstable operating condition , with the likelihood of LVHC gas venting due to overpressure. C ommenter 0172 contended that it is impractical and/or unre asonabl y expensive to completely

eliminate LVHC and HVLC venting due to the safet y considerations and process variability . Therefore, at a minimum, EPA must retain the 1 percent/4 percent venting allowance to cover these situations. Without the venting all owances, mills would need to eliminate all venting not related to safety or normal variability . For a mill to completel y eliminate all the other vents would require extraordinarily costly process modifications. Following are some examples of these process m odifications:
 Full engineering anal ys is of the process equipment, vent gas collection s ys tem and final control devices. It is anticipated that significant capital would be required to make these sy stems completel y vent
- free (such as “bumpless transfer” be tween control devices).
 Even though mills presently have backup s ys tems for LVHC incineration, many are not kept in a “hot” condition and , thus , are subject to a waiting period before being available for burning of LVHC gasses. To keep backup control devi ces in a “hot” mode would

155 See EPA Region 9 Applicability Determination M990012 (September 30, 1999).165

involve extra operating costs. Some existing backup control devices are not 100 percent reliable and mills would have to install a third backup.
 As noted above, HVL C sy stems at many mills do not have backup incineration sources. Without the venting allowance, these facilities would need to install a backup control device and, to be 100 percent reliable, perhaps even a third backup. **Response :**  We appreciate the information provided by the commenter regarding the excess emission al lowances. We will use this information, as well as information we receive d from industry

to further investigate these allowances. We will take action on the excess emissions allowances at a later date. **1 1**  **0. Comment:**  Commenter 0228 requested that EPA maintain the 1 percent and 4 percent vent allowances. These limits reflect the reality that, given the complexity of the NCG collection sy stems, vents are inevitable. Collection sy stems in pulp and paper mills are effective at capturing gases generated at various points within the process, preventing those gases from becoming explosion hazards, and delivering gases to combustion units. Unplanned events such as combustion unit shutdowns, pressure changes within the sy stem, flame arrester pluggages, or valve malfunctions occur at even the best

- controlled mills. Due to the unpleasant odor of NCG gases and the impacts of that odor within the mill and local communities, facilities do not generall y vent unless there is some kind of operational or safety- related event that makes venting necessary to prevent damage to equipment and/or maintain a safe working environment. The commenter has regulated the release of NCGs since the earl y 1990s ( see Maine Department of Environmental Protection Rule 06

- 096 CMR 124 , “Total Reduced Sulfur Control from Kraft Pulp Mills” ). An important part of that regulation limits individual LV HC gas release events to 40 minutes. The restricted duration of individual LVHC gas events discourages mills from venting for long periods of time and reduces the likelihood that mills will ultimately exceed the 1 percent quarterly

limit on LVHC gas vents required under s ubpart S. The combination of the 40 minute individual event limit and 1 percent quarterl y limit has proven to be an effective and practical method of limiting LVHC emissions. The commenter suggest ed that EPA consider such a duration limit for individual LVHC events. As opposed to considering every vent a potential violation, the 40

- minute limit combined with the 1 perc ent quarterly aggregate limit would reduce the number of affirmative defense cases submitted by affected facilities. **Response:** We appreciate the information provided by the commenter regarding the excess emission allowances. We will use this information, as well as information we receive d from industry

to further investigate these allowances. We will take action on the excess emissions allowances at a later date. **111 .**  **Comment:** Information Requested by EPA on Releases Emission s Estimates

. Commenter 0162 noted that EPA requested information on the estimated emissions that occur during periods covered b y the excess emission provisions. The commenter stated that it is not possible to quantify emissions on a site

- or event
- specific basis. The commenter is no t aware of an y successful measurements of releases from vents during a release. The commenter explained that emissions will vary based on the cause, location, and source of the release. Emissions will vary not only between mills and sources but between the166

same sources at the same mill under different circumstances. The commenter noted that NCASI has developed limited data sets for main vents (vents immediately prior to the control device that include gases from all collected sources) under normal operation s. However, site

- specific data cannot be collected for the releases listed above , as the events cannot be anticipated, the events are typicall y short in duration, and it is unsafe to perform sampling. The commenter stated that the reasons EPA gave for not setting emission limits in the original standards have not changed: At proposal EPA did not have sufficient data to establish a mass emission limit or a mass emission reduction percentage across each mill. Since proposal [ in 1993 ] , EPA obtained site

- specif

ic information that was used to develop emission factors for various sy stems at a mill. However, these emission factors represent average or typical systems and are not specific to each mill. While EPA believes such information may be used to estimate nati onal impacts, it is not adequate to determine the MACT floor level of control ( i.e. , the factors are not representative of the actual emissions at each mill but may be used to represent ty

pical emissions from all mills). Actual mass emission levels or mass emission reductions would still be required. Information on the controls for various systems at each mill was available to EPA. Therefore, EPA decided to develop MACT floors on a unit ( i.e. , sy stem) basis. 156 The commenter noted that estimating total source category emissions associated with the excess emission provisions is very difficult, for the same reasons. The commenter stated that , during the extended comment period that EPA has allowed for comment on the excess emission provisions of the s ubpart S st andards, AF&PA, NCASI , and industry representatives will be exploring way s in which the industry might respond to EPA’s request for emission estimates. Work Practices Currently Employed

. Commenter 0162 stated that mills were required to develop SSM p lans under s ubpart S, and that mills use these plans and standard operating procedures to define the work practices mills must follow to minimize emissions during a release. Procedures To Monitor Releases

. Commenter 0162 stated that, depending on the process an d sy stem design, mills monitor the location and time of releases by pressure (most popular), valve position, temperature at the vent location or flow meters. Facilities record this in formation either electronicall y or in log books and report events as currentl y required under s ubpart S. Ventless Transfer S ys tems
. Commenter 0162 stated that some sy stems can be designed for ventless transfer between the primary and back

- up control device; however, these s ys tems cannot prevent venting 100 percent of the time. The commenter noted that these sy stems would only experience ventless transfer if all the conditions are met such that the inte rlocks do not prevent introduction of the gases to the alternate treatment device. However, some units cannot be designed for ventless transfer. Examples include:

 Sy stems with recovery furnaces, to assure that the burner is not plugged. Light

- off of the igniter must be initiated at the burner front, and then only after inspecting the burner opening in the furnace wall to ensure that there is no plugging

.

156 See EPA

- 453/R

- 93/050b, October 1997, page 4

- 6.167

 Sy stems that have different ty pes of boilers as the Primary and Back

- up Control Devices ( i.e. , one boile r is under positive pressure , and the other boiler is under negative pressure)

.  Sy stems such as oxidizers that were installed as Back

- up Control Onl y (these units are ty picall y not maintained in a “hot” state to immediately accept gases to minimize fuel burning and emissions, and for energy conservation)

. **Response :**  We appreciate the information provided by the commenter regarding the excess emission allowances , SSM plans, procedures to monitor releases, and ventless transfers

. We will use this information, as well as information we received from industry to further investigate these allowances. We will take action on the excess emissions allowances at a later date. **1 12**  **. Comment:**  Response s to EPA’s Questions on Provision Options Work Practice Justification. As noted above, the commenter contended that the excess emission provisions should be maintained in the rule because the provisions are necessary for technological reasons , due to sy stem design for safety and process operating variability

– not due to a desire to avoid penalty for excess emissions during periods of SSM. The commenter asserted that EPA must propose a new rule and allow for comment prior to revision of the standard. Although the commenter disagree d that a change to the provision is required, the commenter asserted that the onl y acceptable alternative is a work practice. The commenter pointed out that the CAA states “i f it is not feasible in the judgment of the 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

.” 157 Inorder for an emission standard to be infeasible , the Admi nistrator must determine that “ the application of measurement methodology to a particular class of sources is not practicable due to technological and economic limitations. 158 Technological Limitations . Commenter 0162 stated that development of a numerical e missions standard (other than tracking vent time) is not feasible due to technology limitations. The commenter stated that there are no data available to quantify site

- specific emissions from the vents of LVHC and HVLC sy stems. In addition, the emissions i mpact of stripper downtime is not clearl y understood , as condensates would generall y be sewered to the wastewater treatment sy stem. The commenter noted that there may be unknown losses to the air from any sewers that are open to the atmosphere prior to introduction to the biological treatment sy stem. The commenter stated that , even if time were allowed to collect additional data, it is not possible to measure the emissions from excess emissions events , because the exact time and location of the event cannot be anticipated and the events are generall y short in duration. In addition, collection of these gases is not alway s possible , as the locations are not alway s accessible and sampling of NCG gases outside the collection sy stem would be dangerous. For these reasons, there is not sufficient data available to develop a numerical emission standard.

157 See CAA s ection 112(h)(1)

. 158 See C AA s ection 112(h)(2)(B)

.168

Economic L imitations . Commenter 0162 stated that if EPA were to eliminate the excess emission provisions, mills would need to install duplicate systems for collection and treatment of both NCG gases and condensates. This includes:
 Installing equipment to send HVLC gases to a backup control device (assuming the facility has an available control device that can be used as a backup) ,  Installing redundant HVLC and LVHC gas collection systems, and/or
 Installing back

- up steam strippers

. The commenter estimate d that the costs to install these s ys tems is $1.6 billion, which is cost
- prohibitive and unnecessary , given that EPA has determined that the risks associated with the cur rent rule, which included emissions during venting, are acceptable. The commenter noted that , even with these installations, there is no guarantee that a mill would be able to prevent all incidents of stripper downtime and/or venting due to process variabi lity and safety concerns. The commenter provided the breakout of their cost estimate in Table 9 below and included additional details in Attachment 5 of their comment (0162).

**Table 9. Capital Cost Estimate for Redundant Systems** 

**(Submitted by Commenter 0162)**  **System Capital cost**  HVL C Redundant Control Costs $ 500 M Redundant LVHC/HVLC Collection Systems $ 700 M Back

- Up Strippers $ 400 M **T OTAL**  **$ 1.6 B Response**  **:** We appreciate the information provided by the commenter regarding a justification for replacing the excess emission allowances with a work practice (if necessary) and the technological and economic limitations associated with other regulatory approaches

. We will use this information, as well as information we receive d from industry to furth er investigate these allowances. We will take action on the excess emissions allowances at a later date. **1 13**  **Comment:** Several other commenters (0163, 0167, 0170 , 0207, and 0212) were also opposed to elimination of venting and stripper downtime allowances, and provided similar arguments to those presented above. Commenter 0163 oppose d removal of the excess emissions allowances b ecause they are necessary for the sa fe and orderl y operation of mill processes and were included as part of the original MACT floor and are reflective of the best

- performing mills . The commenter noted that EPA propos ed in th e December 27, 2011 rulemaking to remove language that excludes SSM events from the LVHC and HVL C allowances and includes such SSM events in the steam stripper venting allowance. The commenter oppose d these changes until such time that EPA receives and adequatel y evaluates the information that it has requested concerning industry and state practices. The commenter stated that they have not had enough time to evaluat e and prepare response s to the information requests concerning the allowances. The commenter understood from NCASIthat EPA will accept this information until June 27 , 2012

. Commenter 0167 stated that emission allowances represent the MACT floor determinat ion and are necessary to account for emissions during unavoidable periods of releases169

of uncontrolled or partially uncontrolled pulping process vent gases and unavoidable sewering of untreated or partiall y untreated pulping process condensates. Without the emission allowances, the remainder of the s ubpart S emission standards would impose limitations not achievable b y the best performers and not demonstrated at any facility . The commenter stated that the EPA has provided no technical justification fo r elimi nating these allowances. The commenter stated that the EPA has the obligation to evaluate the residual risk from individual MACT categories , as well as identify

an y technology

improvement , and the EPA does not provide an y justification from either. Commenter 0170 stated that e limination of vent and downtime allowances, as considered in the proposal, would make process gas destruction requirements unachievable, even with construction of new redundant control sy stems at great cost and little benefit, d uring periods when venting to the atmosphere is necessitated in order to compl y with insurance and process safety codes, to protect equipment and to ensure a safe work environment f or employees. Commenter 0207 stated that a limited amount of venting of NCG s consisting of LVHC and HVLC streams must take place in the course of daily operations, as well as in startup and shutdown of processes. These short periods of excess emissions are not “malfunctions” in any real sense. They

are part of the design and prop er operation of the equipment covered under the rule. The commenter stated that facilities should not have to resort to defending these unavoidable events from enforcement. The commenter stated that allowances for some excess emissions are necessary

for sa fe, efficient, and environmentally responsible operation of the array of equipment employed for HAP collection and control. These s ys tems are closel y integrated into complex pulping and combustion operations. Commenter 0207 stated that the EPA has presente d no evidence demonstrating that limited venting results in increased health risks or environmental impacts. The commenter contended that the A gency has not justified the need for their compan y and others to spend enormous amounts of money to install backup, redundant or “upgraded” equipment to reduce venting further. The commenter urged the EPA to retain the s ubpart S venting allowances. The commenter stated that if the A genc y wanted to revisit venting of LVHCs and HVL Cs, it should examine the data the industry ’s mills submitt ed as part of their quarterl y or semiannual compliance reports, as well as any other pertinent information the industry can suppl y before the rule is finalized. The commenter contended that the data would support the company ’s position that some venting is necessary and acceptable. The final version of the rule should provide adequate venting allowances for control equipment and for limited venting during startup and shutdown of some processes. Man y such events do not meet the common

- sen se definition of “malfunction.” **Response :**  We appreciate the commenters’ concerns regarding the removal of the excess emission allowances. We will use this information, as well as inf ormation we receive d from industry to further investigate these allowances. We will take action on the excess emissions allowances at a later date. The EPA views the amendments to remove the SSM exemption (through corrections to General Provisions referenc es) as a separate issue from the excess emissions allowances. If , upon further anal ys is of the information provided by industry , we find reasons to distinguish between170

startup/shutdown periods and normal operations in the context of our approach for handling the excess emissions allowances, then we will address those concerns when we propose our findings relative to the excess emissions allowances. However, for today ’s action , EPA considers the SSM exemption a separate issue decoupled from the excess emissi ons allowances and is proceeding with removal of the SSM exemption. 

### 8.1 **LVHC Systems (1 Percent) 11**  **4 .**  **Comment:** Commenter 0162 stated that LVHC NCG gases are potentially explosive and cannot be burned safely

without supplemental fuel. Most mills have both a primary and back

- up control device 159 for the treatment of LVHC gases. These gases must be incinerated with support fuel and be interlocked to failsafe on loss of support fuel, combustion air, and/or boiler load. The flame safety

s ys tem will not permit the gases to be admitted until the burner is operating on supplemental fuel and ignition is proven. Therefore, for gases to be introduced into any control device, several conditions, also known as permissives, must be met and the sy stem has a series of interl ocks that will not allow the introduction of gases unless all conditions are satisfied. These conditions are required for both safety and protection of process equipment. The safety interlocks are required b y both Factory Mutual Insurance and the National Fire Protection Association for burning of these non

- condensable gases. Also, when these gases are burned in a recovery furnace, there are safety guidelines issued b y the Black Liquor Recovery Advisory Committee. Depending on the control device, the s ys tem may have an ywh ere from nine to fifteen interlocks. The commenter stated that the most common cause of an LVHC release is due to the loss of a flame or burner permissive for the control device. These events are typically short in duration and the situation quickly resolves itself. An example is an intermittent loss of burner in the destruction device due to loss of flame or flame scanner detection temporaril y during cleaning of oil gun(s) on oil fired unit. Safe destruction of LVHC gases requires the presen ce of a burner in the destruction device for safety reasons to assure combustion of the gases. In most cases, the permissive allows a return to normal operation in less than five minutes. In cases where this does not occur, the mill would try to transfer treatment of the gases to the back

- up control device. The commenter stated that, in situations where the back

- up control device is not immediately

available ( i.e. , due to maintenance, the back

- up s ys tem is not “hot”, etc.), the mill must analy

ze the situati on and decide how to minimize emissions. I f the mill anticipates the permissive will allow a return to normal operation in a reasonable amount of time, the facility will continue to operate rather than to implement an emergency shutdown that could result i n higher emissions. If this is not the case, the mill will shutdown the s ubpart S sources. Most states recognize this situation in that they allow facilities to run for a period of 1

– 4 hours (depending on the state) with the control device down before re quiring notification and corrective action. The commenter provided the following examples of events that can cause the isolation of the destruction device and venting of the LVHC NCG stream:
 Low steam supply

pressure to the inductor, or
 Low steam flow to the inductor, or

159 Common control devices for LVHC gases include power boilers, lime kilns, stand

- alone thermal oxidizers, and recovery furnaces.171

 Low inductor outlet NCG flow, or
 Low inductor inlet vacuum, or
 High temperature downstream of inductor (flashback), or
 NCG nozzle pressure is inadequate (ensures proper furnace penetration), or
 Loss of main NCG header rupture disc, or
 A pre ssure instrument detects a high pressure event, or
 Main vent or double block and bleed valve vent valve not showing closed by limit switch, or  Main auxiliary

- fuel valve failure to open, or
 Loss of destruction device BMS permissive, or
 Low destruction devic e temperature, or  Dedicated destruction devices: o Loss of quencher permissives o Loss of scrubber permissives o In cinerator

—quencher outlet temperature high

- high alarm
 Any other condition relating to the safe operation of a destruction device Another cause of unplanned releases is process variation. During these events, there is a vent at the process source until the operator or process logic control s ys tem can verify that there has not been an explosion in the sy stem and the permissives will allow collection of the vent. In these situations, the sy stem is operating within its design parameters and repairs are not necessary . An example is a paper machine trip which causes a domino effect throughout the mill ( i.e. , the machine trip causes a swing in the steam header pressure which results in over pressurization at the pulping equipment and a vent to open to relieve the pressure and prevent an explosion). The NCG sy stem (LVHC or HVLC) will also automatically vent gases to atmosphere for an y of the following process reasons associated with collection of individual sources which also ty picall y cause the collection sy stem main vent location to open by

- passing the control device: high temperature, high pressure, or b yp ass rupture disc ruptured. **Respon se**  **:** We appreciate the commenters’s concerns regarding the excess emission allowances for LVHC s ystems. We will use this information, as well as information we receive d from industry

to further investigate these allowances. We will take action on the excess emissions allowances at a later date. 

### 8.2 **HVLC Systems (4 Percent) 11**  **5 .**  **Comment:** Commenter 0172 note d that when s ubpart S was promulgated in 1998, EPA recognized that existing HVL C sy stems in the industry did not have backup control devices and , therefore , established a 4 percent venting allowance for those times when the sole control device was shut down for maintenance. Stated differently , backup control for HVLC s ys tems was not part of the MACT floor. Th e commenter contended that th is is still true today , as most mills have not installed backup HVLC controls. As previously noted, the floor cannot be modified without demonstrating there have been “developments in practices, processes and control technologies .” If EPA were to eliminate the 4 perc ent HVLC venting allowance, this would be a de facto mandate for mills to install a backup control device to be in continuous compliance with the new172

standard ( i.e. , continuous collection and destruction without an excess emission allowance). The EPA has n ot conducted a beyond

- the

- floor analy sis to justify this approach. Commenter 0162 stated that the HVLC s ys tem is similar to the LVHC s ys tem in ca u ses of venting events. 160 The commenter explained that the main difference is that most HVL C sy stems do not hav e back

- up control devices. Therefore, when the permissive prevents treatment of the gases, the mill must decide if emissions will be best minimized by waiting for the control device to become available or shutting down the HVL C sources. The commenter provi ded the following examples of events that can cause the isolation of the destruction device and venting of the HVL C NCG stream:

 Loss of HVL C fan, or
 Low HVLC fan outlet flow, or
 Low HVLC fan inlet vacuum, or
 High temperature downstream of HVL C fan (flashba ck), or
 Loss of main NCG header rupture disc, or
 A pressure instrument detects a high

- pressure event, or  HVL C vent valve not showing closed by limit switch, or
 Loss of destruction device burner management sy stem permissive, or
 Low destruction device temperature, or  Any other condition relating to the safe operation of a destruction device. C ommenter 0162 stated that EPA recognized that most of the MACT “floor” mills controlling HVLC sources did not have back

- up control devices, and , therefore , EPA provided for a longer excess emission provision under the rule. The commenter noted that , due to the volume of HVLC gases, the control options are typically limited to either a stand

- alone incinerator, power boiler, or recovery furnace, and the gases are injected a s combustion air. **Response :**  We appreciate the information provided by the commenter s regarding the excess emission allowances for HVLC sy stems. We will use this information, as well as information we receive d from industry to further investigate these allowances. We will take action on the excess emissions allowances at a later date. 

### 8.3 **Steam Stripper Systems (10 Percent) 11**  **6 .**  **Comment:** Commenter 0172 stated that a steam stripper excess emission allowance is essential for pulp mill process equipment . As with control devices for HVLC s ys tems described above, when s ubpart S was promulgated EPA recognized that steam strippers, even at the best performing sources, require d periodic routine maintenance. Because bac kup condensate treatment was not considered as part of the MACT floor at these facilities, EPA established a 10 percent excess emission allowance to cover periods of required maintenance. Should EPA eliminate this allowance, facilities would be required to install a backup s ys tem to treat process condensates when the steam stripper was shut down for routine maintenance. The onl y options

160 “T he best

- performing mills achieve a four percent downtime in the control devices used to reduce emissio ns from their HVLC system to account for flow balancing problems and unpredictable pressure changes inherent in HVLC systems” (See 63 FR Vol. 72 at 18529 (April 15, 1998))173

for backup control would be to install a new stripper (the commenter cited EPA ’s estimate of $5.3 million for a new stripp er) or hardpipe condensates to the waste water treatment s ys tem. In addition to the cost of installing the necessary piping s ys tems, hardpiping may not be feasible at all waste treatment plants without significant capital expense to improve aeration capacity or even enlarge the footprint of the sy stem. As with HVL C sy stems, EPA has not done a beyond

the

- floor analy sis to justify this approach. Commenter 0162 stated that , under the existing MACT standards for both steam strippers and stand

- alone biological treatment s ys tems that treat only condensates, periods of excess emissions are not violations , provided that such periods do not exceed 10 percent of the total process operating time in a semi

- annual reporting period. (See §63.446(g).) This provision was included in the current rule because the MACT “floor” mills did not have back

- up control device s and could not treat condensates at all times. 161 The 10 percent excess emission allowance includes SSM events, and the commenter asserted that it should continue to include SSM events because there is no backup for these s ys tems. These sy stems require maintenance, and when there are problems with their operation, the sy stems can require significant work to get them back to serviceable condition. **Response :**  We appreciate the information provided by the commenter s regarding the excess emission allowances for steam strippers. We will use this information, as well as information we receive d from industry to further investigate these allowances. We will take action on the excess emissions allowances at a later date.

161 “T he appropriate excess emissions allowance for steam stripper systems was determi ned to be 10 percent. The provision accounts for stripper tray damage or plugging, efficiency losses in the stripper due to contamination of condensate with fiber or black liquor, steam supply downtime, and combustion control device downtime. This dow ntime provision includes all periods when the stripper systems are inoperable including scheduled maintenance, malfunctions, startups, and shutdowns.” (See 63 FR 18530 (April 15, 1998)).174 

## 9. **Te sting and Monitoring**  **11 7**  **. Comment:**  Commenter s 0162 and 0207 objected to the proposed new revision in § 63.457(o), which states that performance tests shall be conducted under “ such conditions as the Administrator specifies to the owner or operator base d on representative performance of the affected source for the period being tested. Upon request, the owner or operator shall make available to the Administrator such records as may be necessary to determine the conditions of performance tests. ” The commenter s argued that, depending on what “conditions” the Administrator specifies, it may be impossible to conduct performance testing in the time frame required, while simultaneously meeting all the conditions the Administrator or her designee may specify . The commenter s stated that this new provision makes it unnecessarily difficult to develop testing protocols and successfully conduct performance tests. According to the commenter s , performance tests should be conducted under normal operating conditions, taking into account real

- world constraints and considerations. To illustrate this argument, commenter 0162 noted that the actual load or capacity to which an y digester, pulp washing line, or bleach plant (and their supporting steam stripper or wastewater treatment plant) can operate depends on the capacities of tanks holding pulp and the demand for pulp from pulp and paper machines (unless the pulp is discharged to the sewer, a highl y undesirable outcome). According to the commenter s , a number of other short

- term process fluctuations and unplanned events can have an impact on pulp production and supporting operations. The commenter s stated that mills provide stack test notice 60 day s in advance and plan for stack tests in good faith to run under conditions that represent normal operation. The commenter s noted that normal operation includes many load conditions and load mixes at mills with multiple lines. The commenter s concluded that the rule should simply require that performance tests be conducted under normal operating conditions. The c ommenter s noted that special conditions and alternative operating scenarios (such as running onl y one scrubber in a series of two scrubbers) are addre ssed in p art 70 operating permits, which also address the compliance demonstration requirements for these scenarios. **Response :**  We do not agree that these requirements make it impossible to conduct the performance test or unnecessaril y difficult to develo p the test protocol. The language specifying the conditions under which the performance tests are to be condu cted is typical of those conditions specified for many processes and control measures , which can vary greatly . The Agency understands that some pro cesses may present unique challenges in specifying a narrow range of process conditions and control device operating conditions under which the performance test must be performed

. However, this does not preclude the facility from providing to the regulatory authority in the test protocol or test plan the range of operating conditions and control device conditions which they expect to exist at the time of the performance test. By having facilities provid e the expected test conditions and supporting rationale that these conditions are representative of the facility ’s emissions performance, the regulatory authority can175

determin e whether these conditions are acceptable and consistent with the intent of the rule and the EPA’s CAA n ational s tack t esting guidance

. 162 

### 9 **.1 Repeat Testing**  **11 8**  **. Comment:**  Commenter 0162 did not object to the proposal requiring performance testing once every

5 years for facilities that comply with standards in §63 .446 using steam strippers. The commenter noted that facilities that use strip pers are currentl y required to conduct an IPT and then monitor surrogate parameters against limits developed during the IP T. While the commenter noted that strippers are efficient sy stems when properly operated and maintained and believes that monitoring s urrogate parameters is appropriate to indicate continuing stripper removal efficiency , the commenter did not object to EPA’s proposal to require performance testing every 5 years, noting that this would provide additional compliance documentation. **Response :**  The EPA proposed 5

- year repeat testing for stripper off

– gases , which are part of the LVHC s ys tem by

definition. The EPA did not propose, and , therefore, is not promulgating regulatory

language requiring repeat performance testing for process liquids in this action. However, EPA does intend to propose repeat process liquid testing for steam strippers in a future action addressing the excess emissions allowances as a result of the comments received stating that steam stripper performance can degrade over ti me. **1 19**  **. Comment:**  Three c ommenter ( 0162 , 0163, and 0172) agreed with EPA’s decision not to propose additional emissions testing for facilities that comply with the CCA approach, due to the complexity and difficulty of these compliance demonstrations (76 FR 81347). C ommenter 0162 noted that these compliance demonstrations generally require the testing of both gas and liquid streams on multiple operating s ys tems. According to commenter 0162 , this testing requires signi ficant time and resources that are not easily coordinated. C ommenter 0162 noted that, during the IP T for each facility using CCA, the facility has to demonstrate that the CCA approach would result in lower emissions than the traditional compliance approach for HVLC sy s tems , and the facility also has to conduct monitoring to ensure continuing compliance. C ommenter 0162 concluded that, while CCA is an alternative compliance approach, it is a conservative option and actuall y results in a higher treatment stand ard and thus lower emissions. Commenter 0163 noted that CCA approaches are site

- specific, and often complex. The commenter’s facility

using a CCA has established a monitoring s ys tem adequate to assure compliance, based on the measured baseline and the init ial performance demonstration. Absent a change in process configuration affecting condensate management, additional emissions testing would not provide an y further assurance of compliance. Commenter 0172 pointed out that it would also be inappropriate to r equire retesting of exempted sy stems (such as the knotting and screening 0.1/0.2 lb/ton exemption limit and decker water 400 ppm concentration limit) because these are not control l ed sy stems and it would be very difficult to perform such retesting.

162 See memorandum from L. Lund, EPA Office of Compliance, to Regional Compl iance/Enforcement Division Directors, Issuance of the Clean Air Act National Stack Testing Guidance , April 27, 2009, available online at: http://www.epa.gov/comp liance/resources/policies/monitoring/caa/stacktesting.pdf

.176

**Respon se**  **:** We acknowledge the commenters ’ support for our proposal not to require repe at testing for CCA compliance. We considered the complexity of the CCA approach ( e.g. , comparison to baseline emissions calculations and the fact that it often involves both air and/or liquid sampling) in arriving at this decision. We estimated that repeating the CCA compliance demonstration would cost $130,000 per facility

. 163 The repeat testing requirements in the final rule remain as proposed , with the exception of some clarifying language regarding test dates and equipment exempt from repeat testing

. The final rule clarifies that the first of the 5

- ye ar repeat tests must be conducted within 36 months (3 ye ars) of the effective date of the standards, and thereafter withi n 60 months ( 5 years) from the date of the previous performance test for facilities complying with the standards for kraft, soda and semi

- chemical pulping vent gases (§63.443(a)); sulfite processes (§63.444); and bleaching sy stems (§63.445). Quarterly samp ling for biological treatment s ys tems to demonstrate compliance with the kraft condensates standards in §63.446(e)(2) i s already required under subpart S

. We have added clarifying language to the repeat testing requirement in §63.457(a)(2) in the final ru le to address commenter 0172’s statement about knotters, screens, and deckers exempted from the subpart S standards if they meet the HAP emissions criteria specified in §63.443(a)(1)(ii) or (iv). The clarifying language confirms that the 5

- ye ar repeat test ing is not required for knotter or screen s ys tems exempted from the standards based on the criteria specified in §63.443(a)(1)(ii)(A) through (C), or for decker s ys tems exempted from the standards based on the criteria is §63.443(a)(1)(iv)(A) or (B). **1 20**  **. Comment:**  Commenter 0218 state d that the EPA must implement strong enforcement provisions to prevent emission spikes, malfunctions and other violations in a way that will be enforceable b y citizens in the t itle V permits for this source category

. The c ommenter recommended that the EPA require periodic testing that will assure compliance and show EPA, states, and the public whether or not the facilities are in compliance. The commenter mentioned the need for strict monitoring and enforcement provisions t o enforce the permit condition requirements of the Act , and monitoring requirements that are stringent enough so that EPA, states, and citizens can easily access information permitting them to assess whether a facility is in full compliance with the standards within a short period of time of any violation. The commenter suggested that the EPA require performance tests every year instead of every

5 years, to stay up - to
- date on the industry ’s emissions and compliance status and allow states and cit izens to gather data to assess and help assure compliance

. The commenter also asked that the EPA require continuous monitoring of emissions from this source category to assure compliance. **Response :**  The EPA believes that periodic testing every 5 years is sufficient an d cost

effect ive for this source category

. The EPA believes that the monitoring provisions are sufficient to ensure compliance between testing periods. Under the provisions of §63.15, the public can request access to reports submitted to the regulatory age ncy whenever they choose , with the exception of information protected through 40 CFR part 2 ( e.g. , confidential business

163 See memorandum from T. Holloway, K. Hanks, and C. Gooden, RTI, to J. Bradfield and B. Schrock, EPA, titled Costs, Environmental, and Energy Impacts for the Promulgated Subpa rt S Risk and Technology Review , May 15, 2012, in the docket for the subpart S rulemaking.177

information). In addition, as discussed in Section 9.3 below, EPA is promulgating requirements for electronic reporting of emissions test data that will improve public access to emissions information. 

### 9 **.2 Emissions Test Methods**  **1 2**  **1 .**  **Comment:** Commenter 0162 noted that EPA has requested comment on the appropriateness of rederiving the equation in subpart S to demonstrate compliance with the kraft condensate standards for biological treatment, specificall y, whether the equation should be rederived without MEK, since the current equation requires the sampling and anal ys is of MEK and that pollutant was rem oved from the HAP list in 2005 (76 FR 81347

- 81348). According to the commenter, evaluating this equation will not affect the residual risk assessment and has nothing to do with whether the technology has changed. The commenter recommended that this equatio n not be rederived. Commenter 0162 stated that they , along with NCASI , spent a significant amount of time and effort during the original rule development to derive equations that would best demonstrate compliance with the standard based on conservative estimates. The commenter noted that the approach assumes that non

- methanol HAPs are not biologicall y treated and, therefore, the facility must treat an additional quantity of methanol. According to the commenter, this is a conservative approach and actually requires additional treatment by each facility , so it results in lower emissions. Conversel y, c ommenter 0228 stated that the EPA removed MEK from the list of s ection 112 HAP in 2005 , and it should not be included in s ubpart S calculations. **Response :**  A s noted elsewhere b y commenters, the value of the “r

- factor” included in the biotrreatment s ys tem performance equation in §63.457(l) is ty picall y around 0.02. The EPA re viewed the site

- specific r

- factor values reported in the I CR and agrees that this mass ratio of non - methan ol HAPs to methanol HAPs is ty pically around 0.02, reflecting that approximately 2 percent of the measured HAP are non

- methanol HAP. 164 MEK is a fraction of this 2 percent. We have decided not to discontinue inclusion of MEK in the §63.457(l) equation , g iven the small fraction of HAP that MEK comprises, the comment requesting that we retain the original equation, and the fact that retaining MEK does not reduce the stringency of the standard. **1 22**  **. Comment:**  Comm enter 0225 stated that much of Port Townsend Paper Corporation’s reported emissions are simply drawn from industry

tables rather than from direct measurement. Attempts to retrieve emissions reports were unsuccessful. There is no point source r egistry , and the commenter stated they are unable to locate the central repository for criteria pollutant reporting. A ccording to the commenter, a memo between the Regional Air and W ashington Dept of Ecology attached to their comment indicates that PTPC is secure in refusing to provide certain emissions reports. **Response:** A combination of emissions testing and emission factor calculations are commonly

used to estimate emissions for purposes of mill emissions inventory development. This practice is not uniqu e to PTPC. Specific emissions testing requirements are outline d in f ederal and s tate/ l ocal rules and permits. Due to the costs of air emissions testing , it is often not

164 The average value of “r” reported in the ICR responses was 0.017, and the maximum was 0.06.178

practical to require emissions testing for every single pollutant. Emission factors ( ty picall y from NCASITechnical Bulletins) are often used for emissions inventory development when a site

specific emissions test is not available for a particular process and pollutant . Otherwise, there would be gaps in the emissions inventory

. However, mill

- specific data in the form of operating factors ( e.g. , pulp production rates, black liquor solids firing rates, annual operating hours) are used to calculate the emissions for each mill. While we did not find the referenced attachment in the docket, as stated in a previous response, under §63.15, the general public is able to request access to reports submitted to the regulatory agency whenever they

choose , with the exception of information protected through 40 CFR part 2 ( e.g. , confidential business information). In addition, as discussed in s ection 9.3 below, EPA is promulgating requirements for electronic reporting of emissions test data that will improve public access to emissions information. **1 23**  **. Comment:**  Commenter 0225 noted that under §§ 63.7(e) (2)(ii) and (f) and 63.8(f) of the NESHAP GP , a source may apply to the EPA for permission to use alternative test methods or alternative monitoring requirements in place of any required testing methods, performance specifications, or procedures in the fin al rule and any amendments. The commenter stated that at PTPC, alternate test methods allow them to use industry tables to estimate emissions OR reduce their testing to once a ye ar at a time of their own choosing OR submit one test instead of three. Given that there is a low level of oversight, the commenter is not confident of the results of such testing. The commenter asked that provisions be included to be sure that any alternate test methods are grounded in actual emissions in a meaningful way

. **Respons e**  **:** In this action , EPA is taking steps to amend 40 CFR part 63 subpart S in response to our findings relative to the residual risk and technology reviews. While we are adding provisions for 5

- year repeat testing (as noted in previous responses), w e are not adding any changes to the alternative testing procedures in the NESHAP GP . The GP contain specific criteria that are to be used in evaluating requests for use of alternative test methods, changes to test methods, or a reduced frequency of testing. Regardi ng oversight, the EPA retains authority for approval of alternative standards, alternative test methods, alternative monitoring methods, and alternative reporting/recordkeeping under §63.458 of subpart S. Regarding PTPC using industry tables to estimate em issions, as noted in a previous response, e mission factors (typically from NCASITechnical Bulletins) are often used for emissions inventory development when a site

- specific emissions test is not available for a particular process and pollutant. It is often not practical to require emissions testing for every single pollutant d

ue to the costs of air emissions testing. 

### 9. **3 Electronic Reporti**  **ng 12**  **4 .**  **Comment:** Commenter 0162 argued that the proposed electronic reporting requirement is not justified an d would be excessively burdensome to industry . The commenter noted that the owner/operator is required to submit the test data to EPA’s Central Data Exchange (CDX) b y using the ERT when the data and methods are compatible with the ERT. According to the commenter, the performance tests conducted under subpart S are unique and unlike traditional stack tests, and the data collected and the standards that must be met are specific to the s ys tems used to collect and treat condensates. The commenter also noted that there is no reason for EPA to require submittal of this test data because facilities are already required to submit performance test data to regulatory

agencies and provide certifications on their semi

- annual compliance179

reports that they

have performed the required monitoring and will provide information on any deviations from the testing requirements. According to the commenter, additional performance test reports provide no useful purpose, environmental or otherwise, to anyo ne and are an additional admi nistrative burden on operating facilities. The commenter noted that ERT continues to be revised and updated due to various flaws, and that it would be unreasonable to put sources at risk of violations (late reporting) because of EPA reporting tool issues o r availability

. Commenter 0207 stated that the proposed §63 .455(h) requires performance test reports and continuous emissions monitoring sy stem relative accuracy test audits ( CEMS RATA ) to be submitted electronicall y to EPA’s WebFIRE database. The comment er noted that since it is likely that man y states eventually will be delegated authority, this requirement is overly burdensome and costly

for facilities with limited resources. Both commenters (0162 and 0207) noted that a number of states already specify that performance test results be submitted in an electronic format and argued that EPA should remove its reporting format requirement from the rule and work more closely with states to develop a universal reporting s ys tem that is not costly or redundant, d oes not require different electronic reporting formats, and is not problematic and labor

- intensive for data entry . According to the commenter s , the rule’s requirement, as proposed, is an extra, excessive burden for mills and stack testing vendors. The comm enter s stated that EPA needs to defer any electronic collection of data until the CDX and WebFIRE sy stems are fully functional, user

- friendly , and streamlined with s tates. **Response :**  The EPA agrees that there are some test methods used in this rule that currentl y cannot be documented using the ERT. The rule onl y requires the use of the ERT when the test methods are supported by the ERT. The EPA disagrees that test methods used to compl y with this rule should not be documented. The EPA acknowledges that there may be existin g reporting programs in place. However, the compliance test reporting requirement in this rule does allow for quick and eas y access of the data by s tate, local, and tribal entities, as well as the public. As of January

1, 2012, the CEDRIhas been fully functional. Since that time, ERT submittals via CEDRIand the CDX were transferred into EPA’s Webfire database, which is publicly accessible

. WebFIRE provides a convenient location , which is already used to store source test data allowing regulatory authorities access to Cross Media Electronic Reporting Rule ( C RO ME RR) compliant test reports. As EPA and state/local agency data s ystems mature, information provided through th e ERT will be used to populate these data sy stems. We are currentl y upgrading the Aerometric Information Retrieval Sy stem ( AIRS )/Air Facility Sy stem (AFS) and expect to replace manually entered information with electronic population from the ERT. We are al so working with several s tate and local agencies to adopt the use of the ERT for delivery of compliance test reports. We disagree that all sy stems to receive and process the compliance data must be operational prior to establishing the requirement for regulated sources to submit compliance data electronicall y. **12 5**  **. Comment:**  Commenter 0163 was concerned with EPA’s proposal to require use of the ERT for electronic reporting. The commenter’s experience with this sy stem during the Boiler MACT I CR survey s was p oor . The commenter noted EPA is requesting information to be routinely reported for matters of convenience to Agency information gathering , which adds large180

burden to the permittees individually and as a whole . Re garding the effective date, the commenter’s facilities would need time to adapt reports to fit the format, and EPA needs to consider the time needed to avoid duplication of work for reporting to permitting agencies using different formats. The E PA, the states, and permittees will need time to work out compatible formats for such reporting. **Response :**  The EPA disagrees that the ERT is excessively burdensome. The commenter ’s experience with the ERT used during the Boiler MACT ICR is not indicative of the cur rent performance. The EPA has implemented many programming changes that address most of the issues users had with the version of the ERT that was available in 2009. Since the Boiler MACT I CR , there have been 27 revisions to either correct issues which user s have encountered or to add test methods. The EPA disagrees that the ERT requires the reporting of vast amounts of data that are not currentl y required for convenience to the Agency ’s information gathering . The commenter may be confusing the presence of a data field as one that requires entry of data. Also, the commenter may

be confusing the level of information the EPA required in the Boiler MACT ICR with what would be required for a compliance test report. The EPA made the ERT flexible to accommodate a w ide variety of existing data requirements specified b y various state and local agencies and specified in various published EPA test methods and published state and local agency test methods. The EPA does not expect sources to enter data into every availabl e field of the ERT for every

source test. The subpart S rule specifies the specific data which are required to be reported in the ERT. In addition, each state or local agency which has delegated authority has provided guidance on those data elements which they expect in compliance source tests. The commenter’s question about the effective date is addressed below in section 10 of this document. **12 6**  **. Comment:**  Commenter 0218 supported the EPA ’s proposal for electronic reporting , and asked that this apply

to all emission and performance test data and other parameters that the standards use to gauge compliance. The commenter suggested that the required compliance records be reported at least annually to the EPA and the states, and ensure that these are made publicly available promptly

. The commenter observed that , a s the public has a right to all collected reports under the CAA, it is important that the EPA ensure immediate disclosure of these reports to the public on the Internet within 7 day s of receipt of a report, without the need for an y person to submit a request under the Freedom of Information Act. The commenter also asked that the EPA require continuous monitoring of emissions for compliance, and immediate reporting on the Internet of all monito ring reports. C ommenter 0218 also asked that the EPA promulgate specific public reporting and notification requirements for malfunctions or any emission exceedances. The commenter noted that the EPA proposes to require malfunction reporting b y telephone no later than 2 business day s after the malfunction or exceedance, and to require a written report to EPA within 45 day s. The commenter suggested that the EPA require this reporting regardless whether a facility intends to try

to take advantage of an affirmative defense (which EPA should not authorize). The commenter assert ed that these reporting time periods are too long for people that are near the facility

and asked that the EPA require telephone reporting b y the facility no later than 24 hours after the malfunction or exceedance , made publicly available on EPA ’s website and181

through EPA’s Enforcement and Compliance History Online ( ECHO ) s ys tem within 24 hours. The commenter recommended that the EPA Administrator provide this information to its Regional off

ice within 24 hours of receiving notification, and direct the Regional office to notify the local community

on the Internet, by

direct communication, and through all available means. Further, the commenter assert ed that the facility must provide community notification of the malfunction or emission standard exceedance within 24 hours, through an appropriate public forum ( i.e. , facili ty ’s website , municipalit ies, school s , and local media) that contains any information community

members may

need to try to pro tect themselves and their families from the additional air pollution. The commenter recommended that the EPA require a written report to be submitted within 7 day s to be distributed to the community , including publication on ECHO, and sending this to activ e local community members through electronic and other media. The commenter asked that the report include: (1) the nature of the event; (2) the duration of the event; (3) estimate of emissions released during the event; and (4) a description and timing of corrective actions that were taken and any planned to be taken. Commenter 0218 also asked that the EPA promulgate additional requirements that apply in the event of a malfunction or violation of the numerical emission standards so that f acilities are not allowed to emit in an unlimited manner for an unlimited period of time. The commenter recommended further actions in the case of an exceedance or malfunction: 1. The EPA must require automatic shut

- off of the malfunctioning equipment or process for the time ne eded to take corrective action, whenever an exceedance or malfunction occurs. 2. The EPA must assign responsibility and liability

to the plant manager or a high

- up staff member to allow only

that person to re start the equipment or process. 3. The EPA must require specific corrective measures to be taken immediately , to remedy and prevent recurrence o f the malfunction or violation. 4. For a facility that has had one or more malfunction, exceedance, or other violation incident in the prior month, written authorization by EPA must be required to restart equipment or processes. The EPA should only authorize restart after making a public determination that provides information on the corrective measures that EPA is requiring. The EPA should release this public determinati on on the Internet and require its Regional office to communicate this determination to all interested members of the public, including local community represent atives. 5. If a facility

has more than 4 exceedances or malfunctions during the same quarter, then EPA must require automatic shut down of the operation for a period of time needed to conduct and publish a full investigation and ensure sy ste matic correction of the problem s. 6. The EPA should create a community complaint mechanism in the standards that ensure that a citizen complaint of clouds, plumes, exceedances, odors, other air pollution incidents or health concerns receive an immediate response from EPA’s enforcement division within 7 days, in which EPA commits to initiate an investigation and provi de a182

publicly available report of the result of the investigation, including whether it leads to an enforcement outcome. **Response :**  As of January 1, 2012, the EPA has provided almost immediate access to ERT submittals through WebFIRE. The compliance test reporting requirement in this rule allows for quick and eas y access of the data b y s tate, local, and tribal entities, as well as the public. As of January 1, 2012, the CED RIhas been fully functional. Since that time, ERT submittals via CEDRIwere transfer

red into EPA’s Webfire database. While this information does not cover all the information which the commenter has identified, EPA’s intention s are to expand the ty pes of performance test data which the ERT is capable of documenting and to develop an electronic submission method for other ty pes of compliance data. In addition, EPA is modernizing the AIRS/AFS data s ys tem , which is EPA’s primary air compliance reporting data sy stem (which may include publication on ECHO) , with plans to integrate the data between WebFIRE and AIRS/AFS. Since the development of the compliance reporting methods and the AIRS/AFS modernization are earl y in their development, it is unclear the timelines that will be adopted. It is likely that the timelines for availability of information will be shorter than the existing timelines.183 

## 10. Com **pliance Dates 12**  **7 .**  **Comment:** Three commenters (0162, 0163, and 0207) objected to the different compliance dates included in the proposed rule. The commenters no ted that the proposal (at 76 FR 81349) requires existing sources compl y with proposed affirmative defense and electronic reporting provisions upon promulgation and comply with all other proposed requirements within 3 years after the effective date

. The c ommenter s supported setting the compliance date at 3 years after the effective date for all new requirements. To the contrary , commenter 0218 stated that delay of compliance for the new standard for 3 ye ars is unlawful and arbitrary . The commenter argued that in enacting the provision governing the compliance schedule for section 112(d) , Congress stated that it wanted expeditious compliance. The commenter asserted that the EPA has failed to demonstrate that this 3

- ye ar MACT compli ance date for existing source s would provide for compliance as expeditiously as practicable , and , by

failing to begin this rulemaking earlier, the EPA has already delaye d satisfying its legal duties under sections 112(f)(2) and 112(d)(6) to provide protection for affected local commun ities. The commenter stated that , in light of the statutory context and circumstances mandating promulgation of a rule in 2006, EPA has no lawful justification for delaying the compliance date any longer. **Response :**  We have reviewed the comments and clarified the compliance dates in the final rule as follows : 1. T he date 3 6 months (3 years) after the effective date of the final rule for conducting the first 5-year repeat test; 2. The date 60 months (5 ye ars) from the date of the previous performance test i s the date for conducting the next 5

- year repeat test; 3. The date 60 day s following the completion of the performance test is the date for submitting the performance test results to the ERT ; and 4. T he effective date of the final rule ( i.e. , date of publicatio n in the Federal Register) is the compliance date for the SSM changes (including the affirmative defense provisions). C omments relating to the SSM provision s and electronic reporting are addressed in more detail in the next response

. We believe there are compelling reasons for allowing additional time beyond the final rule effective date to compl y with the repeat testing requirements and electronic reporting requirements, and therefo re, have elected to establish tw o compliance dates rather than one. The repeat testing requirements we proposed apply for the kraft , soda, and semichemical pulping vent gases (§63.443), sulfite pulping vent gases (§63.444), and bleaching sy stems (§63.445). F acilities will need time to prepare and submit for approval their test plans for the 5

- ye ar repeat emissions testing. Facilities and permitting authorities will likely need time to sy nchronize the new subpart S repeat testing requirements with the repeat t esting schedule specified in permits (where applicable). Therefore, we believe that 36 months ( 3 years ) is as “e xpeditiously

as practicable ” t o implement the repeat emissions testing requirements, and the results would be reported to the ERT 60 day s later.184

**12 8**  **. Comment:**  Compliance d ate for SSM changes

. C ommenter 0162 noted that the elimination of the SSM provisions would apparently be effective immediately upon promulgation. The commenter stated that EPA has not really assessed the effect of eliminating that provision, because it could require mills to make significant changes to their HAP collection and treatment s ys tems, such as installing redundant equipment not currently required, which would take significant time for design, engineering, acquisition, an d installation. The commenter argued that there was no justification for making such a change in the existing regulations effective immediatel y, as EPA has proposed. Commenter 0163 stated that the proposed affirmative defense provisions for malfunctions, a ssumin g EPA finalizes them, will require substantial time after the final rule is issued to evaluate and understand the final rule provisions, review and understand what changes are needed to their existing procedures to implement those provisions, prepare and/or revise existing procedures and other documents as necessary , provide operator training, and then implement the changes. These are not insignificant process manage ment and training changes , and the commenter believe s that EPA has underestimated need ed transition time to implement them. The commenter noted the likelihood that judicial challenges of the affirmative defense provision may

be filed as under other MACT rules where EPA is inserting the approach. Given the significant process management chan ges required , EPA should consider delaying compliance until the judicial outcomes are settled , in order to minimize confusion and disruption. Commenter 0207 stated that, unless EPA leaves the rule as is, man y mills will have to phy sicall y modify

their operations to comply with additional performance requirements. Simultaneously , companies will have to re

- visit process control parameters ( e.g. , burn permissives) and install additional hardware and software to monitor processes, collect data, classify events, and generate internal and externally

- mandated reports. This would come at significant cost that was not included or evident in EPA’s cost estimates. The commenter stated that at least 3 ye ars are needed to fund, engineer and complete these interrelated efforts. **Response :**  We disagree that there is no justification for making rule changes that eliminate the SSM provisions effective upon promulgation. The D.C. Circuit Court vacated the SSM provisions in Dec ember 19, 2008

. In the interim, prior to the C ourt’s mandate of the SSM vacatur, EPA issued a letter dated July 22, 2009 from Adam Kushner, Director, Office of Civil Enforcement, to various parties that addresse d concerns that ha d been raised regarding the impact of the decision in Sierra Club v. EPA , 551 F.3d 1019 (DC Cir. 2008). The mandate implementing the C ourt’s decision was issu ed on October 16, 2009 , at which time the SSM provisions were clearl y no longer in effect. In addition, amendments to subpart S were proposed on December 27, 2011 , at which time mills were put on notice of the specific wording changes to subpart S. Thus, f

acilities have had ample notice that EPA would remove the SSM exemption. Based on Group I RTR draft p. 38 Regarding the time needed to implement the affirmative defense provisions for malfunctions , f acilities have had practices in place to minimize emissions during malfunctions at least since the compliance date of the original MACT standards. S ince the affirmative defense again st civil penalties for violations of emission limits that are caused b y malfunctions is available immediately, we believe facilities will either be able to meet the emission standards during malfunctions or will be able to use the affirmative defense upon the effective date of this rule.185

Regarding the “likelihood that judicial challenges of the affirmative defense provision may be filed ,” we note that E PA cannot predict judicial filings and the CAA does not explicitly allow time for judicial proceedi ngs to complete before a rule becomes effective. Contrary to commenter’s assertion that EPA ignored costs of the SSM revisions, EPA ’s proposal cost anal ys is included a one

- time cost to revamp existing recordkeeping sy stems to be consistent with the proposed revisions to the startup and shutdown provisions, and included costs for affirmative defense. These costs were derived from the PRA supporting statement d eveloped for proposal. 165 , 166 These costs have also been included in the final cost an al ys is and supporting statement. **1 2**  **9 .**  **Comment:** Commenter 0162 was confused by the ERT submittal dates in the proposed rule. According to the commenter, section IV.E of the proposal preamble (“Compliance Dates,” at 76 FR 81349) states that electronic reporting is “effective upon promulgation of the final rule,” but the revised §63 .335(h)(2) states that “As of January 1, 2012 and within 60 day s after the date of completing eac h performance test, you must submit performance test data, except opacity data, electronicall y to EPA’s Central Data Exchange (CDX) b y using the Electronic Reporting Tool (ERT)...” The commenter stated that this language was confusing because it could be con cluded that, once the rule is effective, all test reports since January 1, 2012 should have been submitted within 60 days of testing prior to the rule being effective. Commenter 0163 stated that the p erformance tests and CEM S quality assurance tests would b e required to be submitted before the close of business on the 60th day following the completion of the performance test and, except for opacity data, the data must be submitted electronically

to EPA’s CDX by

using the EPA’s ERT. The commenter believes ne ither the proposed electronic reporting nor manual reporting of performance tests should be retro

- effective back to January

2012, nor should the reporting requirement become effective on the final rule effective date. **Response :**  The EPA agrees that there s hould not be a retro

- effe ctive test reporting requirement , as the commenter believes w as required in the proposed rule. The date of January 1, 2012 was included because of the expected date that EPA’s CDX could accept ERT submissions. We have revise d the e lectronic reporting requirement dates to agree with the testing requirements established in the rul e. The compliance date for the repeat testing requirement is 36 months ( 3 ye ars ) after the effective date of the final rule. The results of repeat tests (or other performance tests used to show compliance with subpart S) performed using methods supported in the ERT are required to be submitted to the ERT before the close of business on the 60th day following the completion of the performance test.

165 See memo randum from T

. Holloway, K

. Hanks, and C

. Gooden , RTI , to J

. Bradfield and B. Schr oc k, EPA, titled Costs and Environmental and Energy Impacts for Subpart S Risk and Technology Review , November 17, 2011, in the docket for the subpart S rulemaking. 166 See U.S. EPA, Supporting Statement: NESHAP for Pulp and Paper Production (40 CFR Part 63, Subpart S) (Proposed Amendments, November 2011.186 

## 1 **1 .**  **Regulat ory**  **Impacts 1**  **30 .**  **Comment:** Cost Impact to Comply with 94 Percent Treatment Efficiency

. Commenter 0162 argued that EPA underestimated the cost impact to comply with the 94 percent kraft condensate treatment efficiency provision in the proposed rule. The commenter noted that EPA estimated the capital cost of the proposed modifications to the condensate standards at $36 million and projected annual cost at $ 4.1 million ($1,000/ton HAP), based on 7 mills needing to upgrade their biological treatment s ys tems and 8 mills needing to upgrade their steam strippers. 167 The commenter believe d the capital cost to meet an increase in required treatment efficiency from 92 to 94 percent would be closer to approximately $300 million (approximately $150 million annually , or $38,000/ton HAP). The commenter noted that their cost estimates are based an increase in condensate treatment only , using their methodology for the equivalent lb/ODTP treatment (10.4/6.8 lb/ODTP), and not the lb/ODTP limits (12.8/8.3 lb/ODTP) proposed b y EPA that are not achievable without additional collection. The commenter pointed out that most of the emission reductions would be methanol, which the commenter said does not present a risk, according to EPA’s own risk anal ys is, and is of relativel y low toxicity

. According to commenter 0162, EPA did not include any information in the preamble to the Dec ember 27, 2011 proposed rule or in the docket describing how EPA expected mills to comply with the new standards, so the commenter carefull y examined what would be necessary to comply

with the proposal. The commenter noted that all cost estimates in their comment are based on the best information available , given the limited time to gather data during the 60

- day comment period , and were developed using conservative estimates of upgrades and number of units affected and not detailed mill

- by

- mill en gineering estimates. The commenter pointed out that , even with these caveats, their cost estimates are an order o f magnitude higher than EPA’s. T he commenter acknowledged that these estimates are somewhat different from those presented to EPA on January

12 , 2012 because they

made further refinements and gained more information from member companies since that time. Commenter 0162 noted that EPA estimated that a change in treatment efficiency from 92 to 94 percent would result in the reduction of 4,000 tons of HAP from the industry per year (76 FR 81345, 81349). The commenter stated that this estimate assumes that all 97 mills achieve a 0.2 lb/ODTP HAP reduction, at a production rate of 1,000 ODTP per mill per day , but the commenter noted that EPA estimated o nly 15 mills would be required to spend capital to co mpl y with the proposed standard

. 168 According to commenter 0162, the 15 mills for which EPA generated an estimated compliance cost would only achieve a total estimated annual HAP reduction of 547 tons (0.2 lb/t on x 1000 tons per day ( tpd) x 365 day s per year ( d/yr) x 15 mills / 2000 lb/t on). According to the commenter, if EPA was inaccurate in its assessment of the number of mills that would need to make upgrades to meet the proposed 94 percent reduction re quirement and the cost for them to do so, then the correct estimated cost/ton would be $7490/ton, rather than the $1000/ton stated by EPA. Commenter 0162 noted that even that cost per ton (to control mostly methanol) is much lower than what they believe wo uld be the true cost

167 See memo randum from T . Holloway, K. Hanks, and C

. Gooden , RTI , to J. Bradfield and B

. Schrock, EPA , titled , Costs and Environmental and Energy Impacts for Subpart S Risk and Technology Review , November 17, 2011 , in the docket for the subpart S rulemaking . (“EPA 11/17/2011 Cost Document”). 168 Id

.187

per ton of increasing required condensate treatment from 92 to 94 percent efficiency , as shown below. As noted elsewhere , the commenter believes that EPA incorrectl y calculated the proposed lb/ODTP treatment standards that are equivalent to 94 percent. For the purposes of this estimate, the commenter assumed that the treatment standards equivalent to 94 percent are 10.4/6.8 lb/ODTP (bleached/unbleached). As shown in T able 10 below, the commenter estimated that total capital costs would be appro ximately $320 million , with annual costs of approximately $150 million, or $38,000/ton (using the same 4,000 tons of reductions identified by EPA). **Table 10. Costs of Proposed Condensate Treatment Standards**  **( Assuming N**  **om inal 2**  **P ercent**  **C hange in**  **T reatment**  **E fficiency)** 

**(Submitted by Commenter 0162) Capital**  **Cost Annualized** 

**Capital 169**  **Annual**

**Energy Cost Annual** 

**Maintenance Cost**  **Total**

**Annual Cost**  Stripper Upgrade $ 94 M $ 8.8 M $ 8 M $ 3 M $ 20 M Current Strippers (Energy Onl y) $ 8 M $ 3 M $ 11 M Aeration $ 230 M $ 21.6 M $ 90 M $ 9 M $ 121 M Nutrient Addition $ 2 M $ 2 M **Total Cost $ 324 M**  **$ 30.4 M $ 106 M**  **$ 17 M $ 154 M**  According to commenter 0162, the costs were based on the following (and further detailed in an attachment to their comment):

 The commenter projected that upgrades to both steam strippers and wastewater treatment sy stems will result in control sy stems that can achieve the required treatment efficiencies. o According to the commenter, achieving higher treatment efficiency in steam strippers will require more energy , tray s, and steam contact area per incremental percent reduction. o The commenter noted that their estimates assume the 10 percent downtime provision for steam strippers remains in place; otherwise, the commenter i ndicated a back

- up control device (at a mini mum) would be needed, which the commenter said would significantl y raise costs. o For wastewater treatment sy stems, the commenter assumed that an increase in aeration and nutrient addition would be sufficient to achieve the requirements. For reasons described above, the commenter noted that wastewater treatment systems are currentl y required to target treatment levels close to 99 percent to compl y with the current standard of 92 percent. According to the commenter, as required efficiency increases, upgrading the wastewater treatment sy stems will become technically infeasible and cost prohibitive. The commenter argued that, in many if not most

169 Capital costs annualized using the same 0.094 capital recovery factor EPA used, see EPA 11/17/2011 Cost Document, p. 4.1 88 cases, it will not be feasible to respond to increased required treatment e fficiency through upgrading the condensate collection and wastewater treatment sy stem, and said that the mill would most likely decide to install a new stand

- alone steam stripper, at much higher cost than estimated. However, to be conservative, the comment er assumed that all 39 mills that use only the WWTS as a condensate control device will only need increased aeration and nutrient addition to achieve a 94 percent control efficiency

.  The commenter used a cost of $2.9 M each for steam stripper upgrades, bas ed on information from member companies, rather than EPA’s assumed cost of $2.7 M.

 The commenter noted that strippers can either be stand

- alone units or integrated and indicated that, based on initial input from their members, they identified 10 integrate d units. Because the total number of strippers being used for subpart S compliance is 52, the commenter assumed that 20 percent of strippers that required upgrades were integrated and the remaining 80 percent were stand

- alone units. The commenter indicated it is unlikely

that integrated units can be upgraded in the same way as stand

- alone units, and used estimated unit costs for integrated units that are twice the cost for a stand

- alone unit.

 Commenter 0162 believes that 27 mills would actually require upgr ades to meet the 94 percent treatment efficiency requirement, based on the need for a margin of safety for compliance at 96 percent removal, instead of the 8 strippers assumed b y EP A. Therefore, the commenter assumed that mills that only have a stream stripper for condensate control and reported a treatment efficiency at or below 96 percent (23 mills) would need upgrades. The commenter also assumed that 50 percent of the mills that have dual treatment s ys tems (6 mills that use both steam stripping and biolo gical treatment and the 2 mills that use steam stripping and recycling) that reported treatment efficiencies at or below 96 percent would need steam stripper upgrades, for a total of 27 mills that would require steam stripper upgrades.

 According to comment er 0162, capital costs for increased aeration were based on the average cost for four different mills. In addition to the capital costs outlined above, the commenter indicated that each mill would have the following increase in operating costs: o Additional energy

to operate steam strippers at a higher efficiency o Additional energy

to operate more aerators in the wastewater treatment sy stem. o Additional maintenance for steam strippers to maintain higher treatment efficiencies o Additional maintenance for aeration and nutrient addition equipment Commenter 0162 argued that these daily activities would not only add more cost to implement the proposed changes, but would also increase emissions from combustion units required to generate additional energy in the form of steam and/or electricity . The commenter stated that EPA had not accounted for these additional costs or energy impacts in its evaluation. Commenter 0162 noted that, in considering whether to make the existing MACT standards more stringent pursuant to CAA section 112(d)(6), EPA must take into consideration the cost of achieving additional emission reductions and non

- air

- quality health and189

environmental impacts and energy requirements. See NRDC v. EPA , 529 F.3d at 1084. According to the commenter, EPA had n ot done so, even with respect to EPA’s greatl y understated estimate of the expenditures required. The commenter further noted that EO 13563 directs EPA to assure, to the extent allowed by law, that the benefits of any new rule justify

its costs and that EP A chose regulatory approaches that minimize d the net burden imposed. The commenter stated that EPA can and should consider such factors in a technology review under CAA section 112(d)(6). According to the commenter, requiring an expenditure of approximately $38,000 per ton of methanol removed is not at all cost

- effective . The commenter also argued that requiring a diversion of $300 million of capital from other productive investments to address an insignificant risk, and also increasing mills’ energy needs for the higher steam stripper performance, was not a reasonable action under CAA section 112(d)(6). In addition to commenter 0162, c ommenter 0163 also found issue with EPA ’s reported cost s for the 94 percent condensate control option

. i.e. , $36 million capital cost , an annualized investment of $4 million per year for the industry , and a cost effectiveness of $1000 per ton of HAP. [76 FR 813452] The commenter believe d that the EPA's proposed standard was inaccuratel y determined and subject to bei ng changed substantiall y. Therefore, the commenter did not develop a cost estimate for their facilities that may be impacted by

a more stringent condensate HAP standard. The commenter believe d EPA may have understated the potential costs because the loss o f compliance margin at many mills does not seem to be accounted for in the small number of projected facilities (15) that would be affected. Commenter 0170 believe d the proposed lb/ton of methanol destruction requirement for process condensates was determ ined based on an errant methodology , resulting in a limit that would necessitate substantial modification or replacement of over 20 of their control s ys tems that employ the lb/ton compliance option. The commenter stated that the proposed increase in methan ol destruction efficiency for condensates ( from 92 to 94 percent) would require substantial modification or replacement of up to 8 of their control s ys tems in order to maintain an adequate margin of compliance. The commenter noted that EPA had estimated fe wer s ys tem changes would be necessary

. Commenter 0167 stated that it was important for the EPA to recognize that additional collection would be required and an increase in steam demand would be required for condensate strippers when considering the propose d kraft p ulping c ondensate s tandards . The commenter stated that it was not apparent that the EPA ha d appropriatel y factored these costs or associated environmental impact to produce the necessary steam. The commenter stated that the EPA should more fully

evaluate these impacts in its cost/benefit anal ys is. **Response:** We disagree with commenter 0162 ’s cl aim that EPA did not include any information in the preamble to the Dec ember 27, 2011 proposed rule or in the docket describing how EPA expected mills to comply with the new standards

. The preamble indicated that, “ The three control strategies expected to be used by most mills are recycling the condensates, biological treatment and steam stripping , ” ( 76 FR 81345) and noted that biotreatment system and stripper upgrades were considered in EPA’s cost anal ys is (76 FR 81349). In addition, two separate memoranda were included in the docket (and referenced in the proposal preamble) to address our conclusions at proposal regarding the performance of condensate treatment s ys tems190

and cost and environmental impacts of the proposed changes to the condensate standards. 170 , 171 Following proposal, EPA met with this commenter on multiple occasions to discuss the kraft condensate standards and the basis for the commenter’s cost estimates. 172 The commenter supplied additional information based on actual mill experiences and refined their cost estimate (that was developed quickly during the 60

- day

comment period) in response to EPA questions. The commenter’s refined estimate was $222 million capital cost and $68 million annualized cost. 173 Elements of the commenter’s cost and energy impact calculation were included in EPA’s independent cost assessment for promulgation. The EPA considered two regulatory options for promulgation, 93 and 94 percent HAP removal from condensates. Treatment sy stem performance levels were completely reanal yz ed on a mill

- by

- mill basis , using data from both the pulp and paper Part I IC R Kraft Condensates and Wastewater tables. Mills using the lb/ODTP (or ppmw) compliance option were evaluated based on those options in stead of using the equivalent percent reduction derived for the proposal anal ys is (also used as the basis for portions of the commenter’s cost calculation). We also updated the predominant treatment method for a few mills after a closer review of their ICR data and identified mills operating strippers integrated with multiple effect evaporators. Our revised anal ys is took operational and treatment sy stem performance variability into account and assigned costs to mills where their reported performance level p lus a variability cushion did not meet the 93 or 94 percent treatment (or equivalent lb/ODTP or ppmw) regulatory option. Our anal ys is revealed that , of the 40 mills using biotreatment as their predominant condensate treatment method, 20 mills would be aff ected under the 93 percent option and 23 mills would be affected under the 94 percent regulatory option. Either biotreatment sy stem upgrade (aeration and nutrient addition) costs or new steam stripper costs were assigned for these facilities. A total of 13 and 15 mills were predicted to install a new steam stripper under the 93 and 94 percent options, respectivel y. Of 49 mills using strippers, a combination of stripping and recycling, or stripping and biotreatment as the predominant form of condensate control, 24 were determined to have integrated stripper s ys tems (though not all of these integrated strippers were determined to be affected). Stripper upgrade costs were assigned for 28 and 31 stripper sy stems under the 93 and 94 percent regulatory options, re spectively . Thus, the overall number of mills affected b y the 94 percent kraft condensate option increased from 15 mills (at proposal) to 54 mills in the promulgation anal ys is. At proposal, the estimated HAP emission reduction from condensates was attribut ed to all 97 kraft mills because the proposed revisions would reduce the permissible HAP emissions even at mills that would not realize any actual emissions reduction because they are already

170 See memorandum from J. Bradf ield and K. Spence, EPA, to Docket EPA

- HQ

- OAR

- 2007

- 0544 , titled Summary of Kraft Condensate Control Technology Review , October 23, 2011, in the docket for the subpart S rulemaking. 171 See memo randum from T. Holloway, K. Hanks, and C

. Gooden , RTI , to J. Bradfield and B

. Schroc k, EPA, titled Costs and Environmental and Energy Impacts for Subpart S Risk and Technology Review , November 17, 2011, in the docket for the subpart S rulemaking. 172 See U.S. EPA documents, titled Meeting notes for the January 12, 20 12 meeting with AF&PA ; Meeting notes for the March 16, 2012 meeting with AF& PA ; Meeting notes for the March 28, 2012 meeting with AF&P A ; and Meeting notes for the May 2, 2012 meeting with AF& PA , in the docket for the subpart S rulemaking. 173 See U.S. EPA do cument, titled Meeting notes for the May 2, 2012 meeting with AF& PA

.191

performing better than the proposed 94 percent removal. In the p romulgation anal ys is, the HAP, VOC, and TRS emissions reduction calculation s were revised to appl y only for the mills anticipated to need upgrades, rather than to reflect the potential emissions reduction for all 97 kraft mills. This approach more accurate ly estimates the emission reduction that would actuall y occur as a result of revising the kraft condensate standards. The promulgation anal ys is considered the cost impact of revisions to the condensate standards on CCA mills. Of the 38 CCA mills, we estimated that the CCA compliance approach could potentially

be negated by

the condensate standard revisions at 11 mills, and that these mills would switch from the CCA to use HVL C controls. Switching from CCA to HVL C control was estimated to cost $15 million in capital costs and $1.89 million/year in annual costs per mill. We also estimated that 34 of the 38 CCA mills would be required to repeat their CCA compliance demonstration , at a cost of $130,000 per mill. 174 Table 11 summarizes the nationwide cost impacts and emissions reductions estimated for the kraft condensate regulatory options considered for promulgation. T he estimated nationwide HAP emissions reduction s range from 989 to 2,300 tpy for the 93 and 94 percent removal options . When the costs associated w ith the repeat CCA demonstration and switching from CCA to HVL C are added, the cost effectiveness of the kraft condensates regulatory options becomes $ 75,000 /ton and $37,000 /ton for the 93 and 94 percent removal options , respectivel y . Estimated costs for p romulgation are significantly higher than the proposal estimates because a greater number of mills were determined to be affected , considering variability in performance and because we have accounted for potential effects on CCA mills. Three small businesses were determined to be affected by the kraft condensates regulatory options, one with a cost

- to
- sales ratio of 15 percent (well above the criteria for further consideration of small business impacts under the Regulatory

Flexibility

Act as amended by

the Small Business Regulatory Enforcement Fairness Act (SBREFA)). Energy impacts of the regulatory options include electricity use b y upgraded aerators in biotreatment sy stems or for new stripper s ys tems, and increased steam use by upgraded or new steam strippers. Energy

impacts (and associated secondary air emissions) f

or stripper steam generation were not estimated prior to proposal, based on an assumption that upgraded steam strippers would likely be more efficient. Energy and secondary

air emission impacts for new and upgraded steam strippers were included in the promulgation anal ys is, and were found to be significantl y higher than the secondary air emissions estimates for electricity usage. Secondary impacts from additional steam requirements are the consequence of the additional boiler loads necessary to generate the steam. These impacts are summarized in Table 12 below and include the criteria pollutants PM, CO, N O X , and SO 2 and the greenhouse gases ( GHG s ) carbon dioxide (CO 2 ), methane (CH 4 ), and nitrous oxide (N 2 O)

. When converted to CO 2 equivalents (CO 2 eq) , the GHG emissions associated with the 93 and 94 percent removal options would be 1,018,048 and 1,402,084 tpy

CO 2 eq, respectivel y.

174 See memorandum from T. Holloway, K. Hanks, and C. Gooden, RTI, to J. Bradfield and B. Schrock, EPA, titled Costs, Environmental, and Energy Impacts for the Promulgated Subpa rt S Risk an d Technology Review , May 15, 2012, in the docket for the subpart S rulemaking.192

**Table 11**  **. Summary of Nationwide Costs**  **and Cost Effectiveness for the Kraft Condensate Regulatory Options Subpart S regulatory**  **option Costs**  **Emissions reductions, tpy Cost effectiveness,**  **$/ton HAP**  **No. of mills**

**affected Capital,**  **$million Annualized,** 

**$million/yr HAP/ VOC**  **a TRS**  92% → 93% $227 $52.6 989 336 $53,175 48 92% → 94% $254 $63.3 2,300 702 $27,508 54 Repeat CCA Demonstration $4.42 $0.996

-- -- -- 34 Switching from CCA to HVL C $165 $20.8 Not estimated b Not estimated b

-- 11 **Total costs for condensate options:**  **93% 94%**  **$396 $423**  **$74.4**

**$85.1 989** 

**2,300 336** 

**702 $75,000** 

**$37,000** a. HAP emissions are approximately 99% methanol and 1% acetaldehyde. VOC emissions reductions would be essentially equivalent to HAP emissions reductions. b. Because the CCA compliance approach, by design, must achieve greater HAP emission reduction than the HVLC compliance approach would have achieved, it can be expected that HAP emissions may increase as a result of switching to HVLC if the mill were to abandon the CCA techn ology generating emis sions credits. **Table 12**  **. Summary of Estimated Nationwide Environmental and Energy Impacts**  **Subpart S regulatory**  **option Energy impacts,** 

**MMBtu/yr Secondary emissions, tpy**  **No. of mills affected**  **Electricity Steam**  **PM a**  **CO NO**  **X SO**  **2 CO**  **2 CH**  **4 N**  **2 O**  92% → 93% 99,419 660 430 2,082 1,443 659 1,004,258 65 40 48 92% → 94% 113,685 910 593 2,870 1,986 901 1,383,081 89 55 54

a. Filterable (front

- half) PM.193

The revised kraft condensate standards were considered under the technology review authority of CAA section 112(d)(6), and not under section 112(f)(2). The EPA must take into consideration the cost of achieving additional emission reductions and non

- air

- quality health and environmental impacts and energy requirements when setting standards pursuant to C AA section 112(d)(6). The EPA no longer considers the proposed 94 percent revision to the kraft condensate standards to be cost

- effective in terms of the amount of HAP reduced. Nor does EPA consider the 93 percent regulatory option considered for promulgation to be cost

- effective. The nationwide energy

impacts and secondary

air emissions associated with regulatory options are substantial compared to the HAP emissions reduction, primarily due to the power boiler emissions associated with the increas ed steam demand needed for new and upgraded steam stripper sy stems. Additionally one affected small business was estimated to experience a cost

- to
sales ratio of 15 percent. For all of these reasons, EPA decided not to finalize the proposed amendments to the kraft condensate standards (based on the 94 percent reduction option) or to promulgate a slightl y less stringent standard than proposed (based on the 93 percent reduction option). **1 31**  **. Comment:**  Cost Impact t o Comply with Proposed Lb/Ton Removal Limits

. Commenter 0162 argued that EPA underestimated the cost impact to comply with the lb/ton of pulp removal limits in the proposed rule. For the purposes of this estimate, the commenter assumed that the treatment standards we re those published in the December 27, 2011 proposal, and that mills wishing to use the compliance option based on demonstrating the mass of HAP removed per ton of pulp produced would have to demonstrate the 12.8/8.3 lb/ODTP (bleached/unbleached) removal rates in the proposal, rather than the nominal increase in removal rates associated with increasing condensate treatment efficiency from 92 to 94 percent, described above . T he commenter estimated that total capital cos ts would be approximately $834 million , and annualized capital costs plus operation and mainte nance costs would be over $200 million , or 50 times greater than EPA estimated. Commenter 0162 stated that the proposed lb/ODTP standard for condensate treatment would require additional collection of condensates from non

- CCA mills, as explained above, based on the investments described above, plus additional collection of condensates from CCA mills. The commenter estimated that currentl y 38 mills use the CCA in § 63.447 for MACT I Phase 2 . Of those 38 mills, the commenter estimated that 34 demonstrated compliance through collection of additional condensates, which the commenter said would need to be increased. According to the commenter, if those mills we re required to demonstrate an increased removal of HAPs in condensate of approximate ly 25 percent, as EPA has proposed, then , based on their current configurations , the mills using the CCA likely could not continue to rely on the CCA to comply with the new lb/ODTP removal requirements. Therefore, the commenter assumed that all mills curre ntly

using the CCA would need to collect HVL C gases and route them to a single control device. The commenter estimated this capital cost at $15 million per mill. The commenter noted that this cost assume d the 4 percent venting provision for HVL C sy stems re main ed in place; otherwise the commenter indicated a back

- up control device (at a minimum) would be needed, at substantial additional cost. Commenter 0162 argued that imposin g a cost of approximately $200 million per year to achieve onl y an incremental re duction in emissions of mostly methanol would not be cost

effective . The commenter also argued that requiring a diversion of $834 million in capital from194

other productive investments to address an insignificant risk, and also increasing mills’ energy needs for the higher steam stripper performance, was not a reasonable action under section 112(d)(6). **Response:** As stated previously , EPA did not intend to propose an increase in the condensate collection requirements. Therefore, the commenter’s cost estimates included here (and the revised costs discussed on May 2, 2012) are not relevant. 175 Costs for 11 mills ( i.e. , costs for switching from CCA to HVL C compliance) where the CCA option may be negated due to the more stringent condensate removal standard ( e.g. , 93 or 94 percent removal) were included in the revised cost analy sis for promulgation. **1 3**  **2 .**  **Comment:** Two othe r commenters (0212 and 0170) believe d that EPA ha d underestimated the cost to implement the proposed rule changes. Both commenters referred to the information provided by commenter 0162 on the subject to support their argument. Commenter 0170 further argue d that EPA ’s estimate at proposal of a $ 36 million industry

- wide investment to upgrad e condensate control s ys tem efficiencies was a significant underestimation. According to the commenter, the AF&PA’s rough estimate , based on the incomplete understanding l eft b y the proposal , indicates that the rule, which EPA determined would have a minor economic impact, could cost the industry as much as $ 2.4 billion dollars, an amount exceeding the costs of the air process portion of the original Cluster Rule and the co mbustion source rule ( s ubpart s S and MM). Even with this ty pe of investment, it was not clear to the commenter whether the industry or their compan y could comply with all of the changes to the proposed rule because of cost and safety considerations. Given EPA’s conclusion in the accompan yi ng residual risk review that the industry present ed acceptable risks, the commenter asserted that the prospect of billions of dollars of additional investment was unwarranted because it would not materially

increase public protection. **Response:** We interpret this comment as referring to costs associated with: (1) the proposed kraft condensate limits, and (2) our request for comment on the excess emissions allowanc es. Discussion of costs for the kraft condensate regulatory options is provided in the responses above. The EPA has decided not to revise the kraft condensate standards. The EPA has deferred action on the excess emissions allowances and will explore the co sts associated with removal of the excess emission allowances in analy ses supporting proposal of a future regulation. **1 33**  **. Comment:**  Commenter 0172 argued that EPA is obligated to consider the cost of modifications during the RTR process. The cost of complying with the standards without the 1 percent, 4 percent, and 10 percent allowances must be considered. The commenter’s initial assessment of the cost of complying with these standards at their facilities alone was between $100 and $180 million, primarily i n the form of process modifications, alternative condensate and vent gas collection systems, backup condensate treatment s ys tems and backup vent gas incineration s ys tems. **Response :**  The EPA has deferred action and will further investigate the removal of th e excess emission allowances in a future regulation.

175 See U.S. EPA document, titled Meeting notes for the May 2, 2012 meeting with AF& PA

.195 

## 12 **. Miscellaneous Comments**  **1 2**  **.1 Commenter Endorsements**  **13 4**  **. Comment:**  Multiple commenters ( 0164, 0165, 0167, 0170, 0172, 0174, 0193, 0195, 0207, and 0212) endorsed the comments made by the AF&PA on the pulp and paper proposal

. Five comments (0163, 0167, 0170, 0172, and 0212) also specifically endorsed the comments made b y NCASI. Commenter s 0170 and 0172 noted that they had also participated in the creation and/or review of the comments made by th e AF&PA and NCASI

. Commenter 0164 specifically expressed support for the comments on the p roposed SSM p rovisions that we re submitted by the AF&PA

. Rather than repeat those comments here, the commenter (0164) incorporated AF&PA’s comments on the p roposed SS M p rovisions i nto the ir comments by

reference. Commenter 0163 specifically endorsed and submitted a cop y (0163.2) of the February

18, 2012 interim comments provided by NCASIon RTR condensate treatment requirements. **Response :**  We acknowledge the commenters’ collective support for the AF&PA and NCASIcomments. **13 5**  **. Comment:**  C ommenter 0174 support ed the article by the NCSAB entitled “Risk Assessment for Arsenic and Inorganic Arsenic Compounds” and provided a copy of the article. **Response :**  We acknow ledge the commenter ’ s reference to the article. **136 .**  **Comment:** In support of their mills

- specific NEI updates, several c ommenter s ( 0154, 0187 (0187.3) , 0190 , and 0198 ) provided copies of the February 24, 2012 NCASImemorandum entitled “Hexachloroethane Emissions from Brownstock W ashers and Bleach Plant Sources. ” **Response :**  We acknowledge the commenters ’ support for NCASI ’s HCE memo , which was summarized as Attachment 3 to comment 0162. **137 .**  **Comment:** Commenter 0 214 /0225 endorsed the comments submitted by Earthjustice and coalition. **Response :**  We acknowledge the commenter’s support for the Earthjustice (an d coalition) comments. 

### 12.2 **Other Comments 138**  **. Comment:**  Commenter 0170 suggested the EPA did not interpret mill I CR data correctly . The commenter stated that , without the familiarity with the process equipment and control sy stems that onl y compan y representatives could have, th e EPA incorrectl y interpreted the data. The commenter stated that they had suggested discussion with EPA, but they were not consulted in developing the proposal. The commenter believe d substantial additional communication with EPA is needed to help interpret the data, the cost impact of the proposed provisions, the unrecognized adverse impacts that would re sult if the p ulp and p aper NESHAP196

r ule is promulgated (as proposed), and reasonable means for revising the standards. The commenter again offered to communicate with the Agency to whatever extent is needed to share understanding of these important matters. **Response :**  We appreciate the commenter’s willingness to describe pulp and paper mill operations and to assist the Agency with future interpretations of the I CR data. **13 9**  **. Comment:**  Commenter 0214/0214.1 provided 2009 reported air toxics releases for Nippon Paper Industries i n Port Angeles , WA as additional input on ty pical reported emissions under present laws. The commenter noted that Nippon is regulated b y Ol ympic Region Clean Air Agency

. **Response :**  We thank the commenter for providing the inventory information for Nippon Paper. We compared the inventories with the NEI inventory used for our residual risk assessment and found that the HAP emissions in the inventories supplied by the commenter compare favorabl y with the NE I data. The NE I data set used for risk modeling inclu ded additional HAPs and in some cases a higher tonnage of selected HAPs. **140 .**  **Comment:** Commenter 0225 provided a 2009 emissions inventory for Port Townsend Paper (see comment attachment 0225.1)

. The commenter noted that the TRIand the Regional Airs ’ Point Source Emissions Inventory are good tools for compiling and understanding emissions data, but data for many reported pollutants or point sources are elusive. The commenter pointed out that the inventories do not list several NESHAP pollutants for PTPC. **Response :**  We thank the commenter for providing the two inventories for PTPC. We compared the commenter’s inventories with the NEIinventory used for our pre - proposal residual risk assessment and the NEI inventory that includes post
- proposal NEI revisions from the mill

. We found that the HAP emissions in the inventories supplied by the commenter compare favorabl y with the pre - and post

- proposal NEI data. The pre - and post

- proposal NEI data set s include additional HAPs not listed on the inventories supplied by the commenter. The commenter should also note that the TRIdoes not include emissions data for pollutants emitted below specified threshold levels. **141 .**  **Comment:** Commenter 0214 attached a set of five documents ( comment attachments 0214.1 through 0214.6) that the commenter believe d illustrate a disconnect between enacted laws and how their actual enforcement play s out, or other areas for attention within the regulatory sy stem. The commenter’s Attachment B1 is a summary of State laws the commenter c ontend ed that the Washington Department of Ecology has refused to enforce. The commenter’s Attachment B2 provides examples of misinformation to the public. The commenter’s Attachments B3, B4, and B5 are 2008 letters calling for Washington Department of Eco logy Industrial S ection oversight of Port Townsend Paper. Commenter 0214 also attached a photo ( comment attachment 0214.7) illustrating how the tops of Port Townsend Paper ’ s stack point directly at the local hospital. Commenter 0214 also attached two docum ents in electronic f orm: (1) a petition regarding Port Townsend Paper ( comment attachment 0214.8), and (2) c omplaint summary logs ( comment attachment 0214.9). The commenter stated that the call logs that are on file with the W ashington Dep artment of Ecolog y relate accounts of heart palpitations, migraines, respiratory

distress, burning eyes and skin, headaches, sinus and breathing problems, coughing,197

nausea and vomiting, sleep apnea , and other sleep disturbances, along with daily inconveniences , such as hav ing to change plans to avoid being in certain parts of town when the plume arrives. The commenter stated that it is notable that midway in the 6

- month spreadsheet, Port Townsend Paper stop ped recording the reasons for the calls after having already ceased to log what they

did about it. **Response :**  We acknowledge this comment and the concerns of the commenter , but note that comments pertaining to enforcement or compliance issues at specific facilities are outside the scope of this rulemaking. We should note that the final rule requires repeat emission testing for kraft pulping processes and steam strippers and removes the SSM exemption

–changes which should reduce the potential for the emissions episodes of concern to the commenter. **1 42.**  **Comment:** Commenter 0225 stated that the current environmental laws discourage upgrading until absolutely forced to, and much of the equipment at Port Townsend Paper is approaching the end of its design life. The commenter asserted that it is easier for the mill to begin a 25 megawatt ( MW ) power generating expansion than to upgrade existing technologies. The commenter encouraged MACT rules that would require the mills to install modern equipment, instead of relying on the best available retrofit technology ( BART ) opt ions. Commenter 0225 believe d that tighter rules are necessary , but would be meaningless if not enforced. Because PTPC is a kraft pulp mill in the state of Washington , it is regulated b y the Washington Department of Ecology's Industrial Section, rather th an b y the regional air quality authority , in contrast to other pulp mills. The commenter stated that the Department of Ecology coached the facility

on way s to avoid PSD, which also allowed them to avoid MACT rules that otherwise would have been triggered b y PSD. **Response :**  We acknowledge this comment and the concerns of the commenter , but note that comments pertaining to enforcement or compliance issues at specific facilities and issues pertaining to PSD are outside the scope of this rulemaking. It is expe cted that there would be some discussion between the permitting authority and an affected source’s responsibilities in regard to permitting requirements. **1 4**  **3 .**  **Comment:** Commenter 0225 expressed concern that CO 2 emissions data are not collected, as it is un der the supervision of the W ashington Dep artment of Ecology Industrial Section rather than the regional air quality authority . Exemptions such as this should not be allowed. The commenter also noted that the 25 MW expansion project would lead to greatl y increased CO 2 emissions, a contributing factor in climate change. The commenter estimate d that the mill emits around 300 million pounds of CO 2 per year. The commenter noted that the expansion project may

"more than double" the CO 2 emissions to 600 million pounds, yet that was not taken into account when approving the project

-- even though CO 2 emissions are a major issue. **Response :**  The reporting and collection of CO 2 emissio n data are outside the scope of the s ubpart S pulp and paper NESHAP. The current revi ew of the subpart S NESHAP addresses HAP emissions from s ubpart S emission s ources, which does not include recovery furnaces or industrial b oilers.198

However, we note that biogenic and non

- biogenic CO 2 emissions (and other GHGs) from the Port Townsend facil ity ’s recovery f urnace and i ndustrial boilers are required to be reported to EPA annually

under EPA’s Mandatory Greenhouse Gas Reporting rule (40 CFR part 98 s ubparts C and AA). Additionally , EPA is conduct ing a detailed examination of the science associated with biogenic CO 2 emissions from stationary sources , and this work is undergoing SAB review. **14 4**  **. Comment:**  Commenter 0218 attached man y of the documents referenced in their comment ( e.g. , toxicity

studies, background information). These documents are included as six file sets, items 0219.1

- 0224.18 in the docket. **Response :**  We acknowledge the reference d document s provided by the commenter.A

- 1



## Appendix **A. Mills Pr oviding N**  **EI Revisions**

**NEI Code Docket** 

**ID for NEI**  **Revision Nature of the NEI Revision**  NEI13363 0147 Reduced acetaldehyde, formaldehyde from WWT NEI54400 0151

- Reduced acetaldehyde, methanol from paper machine

- Changed latitudes/longitudes for pulp oper ation , paper machines, hot water accum ulator drain NEI45206 0154 Deleted HCE from bleach plant, pulp storage NEI26581 0155

- Deleted HCE from bleach plant and 2

- methylnaphthalene from SDTs

- Ch anged pollutant from hexachlorobenzene to hexachlorocyclo pentadiene for SDTs NEI42338 0158 Reduced acetaldehyde, chloroform, formaldehyde, 13 other HAPs from WWT NEI6273 0159

- Increased acetaldehyde from paper machines, pulp dryer

- Reduced acetaldehyde from WWT

- Deleted records for non

- operational boiler

- Deleted carbon tetrachloride from paper machines, pulp dryer

- Changed latitudes/longitudes for groundwood operations, NDCE recovery furnace, and boiler

- Recommended change to receptor location NEI11338 0166

- Reduced fugitive area of WWT

- Reduced acetaldehyde from BLO unit and nickel from lime kiln

- Deleted naphthalene from BLO unit

- Changed latitudes/longitudes for WWT, BLO unit

- Split up BLO unit emissions

- Change release point type for BLO unit from vertical to vertical with rain cap NEI42482 0169

- Reduced formaldehyde from EU BLT12 (Bleach Tower 2)

- Replaced formaldehyde from EU BLT22 (Bleach Tower 2) with much lower estimate for EU BLT14 (Bleach Tower 4) NEIWI4050324 0169

- Added vinyl acetate to dryformer

- Reduced acetaldehyde from dryformer NEI12980 0173

- Reduced stack v elocity and increased stack diameter for Bleach Tower 1

- Increased stack velocity and reduced stack diameter for Bleach Tower 2 NEI40282 0174

- Reduced acetaldehyde, formaldehyde from paper machines

- Reduced 1,2

- dichloroethane from brownstock washing

- Deleted 1,2

- dichloroethane from oxygen delignification, lime kiln, boiler NEI40686 0175

- Deleted HCE from bleach plant

- Deleted acetaldehyde, chloroform, formaldehyde, methanol, 18 other HAPs from causticizing

- Deleted acetaldehyde, acrolein, chloroform, formaldehyde, methanol, naphthalene, 28 other HAPs from SDT

- Changed latitude/longitude for WWT

- Recommended change to receptor location NEI18652 0176 Reduced arsenic from boiler NEI32869A 0177

- Reduced acetaldehyde, formaldehyde from paper machines, pulp dryer

- Deleted HCE from bleach plant, pulp storage NEI18373 0178 Reduced acetaldehyde from WWT NEI40738 0179

- Reduced nickel from paper machine

- Deleted acetaldehyde, methanol from papermaking fugitives

- Recommended change to receptor location NEI42695 0180

- Deleted antimony, beryllium, and cadmium from digester

- Changed latitudes/longitudes for digester, decker, and ClO 2 generator

- Recommended change to receptor location NEI34066 0181/0191

- Increased fugitive area for WWT

- Deleted HCE from bleach plant

- Changed latitude/longitude for WWTA

- 2

**NEI Code Docket** 

**ID for NEI**  **Revision Nature of the NEI Revision**  NEI46739, NEI42963 , & NEIWI7720116 0182 NEI46739 :

- Increased acetaldehyde, methanol, benzene, MIBK, toluene from causticizing miscellaneous

- Reduced chloroform, formaldehyde, 7 other HAPs from causticizing miscellaneous

- Deleted carbon tetrachloride and 1,1,2

- trichloroethane from causticizing miscellaneous NEIWI7720116 :

- Reduced acetaldehyde, chloroform, formaldehyde, methanol, catechol, cresol, ethylene glycol, phenol from WWT

- Recommended change to receptor location NEI12407 0183 Deleted records for NCG incinerator (includes metals, formaldehyde, naphthalene) NEI6261 0184 Reduced acetaldehyde, naphthalene, carbon disulfide, propionaldehyde from WWT NEI41599 0185 Added bis(2

- ethylhexyl) phthalete, dibutyl phthalate, toluene to WWTP1/2; formaldehyde to WWTP1; cresol, phenol to WWTP2

- Reduced acet aldehyde, methanol from WWTP1/2; formaldehyde from WWTP2

- Deleted HCE from bleach plant

- Deleted acetaldehyde, chloroform, formaldehyde, methanol, naphthalene, 21 other HAPs from causticizing

- Deleted acetaldehyde, acrolein, chloroform, formaldehyde, methanol, naphthalene, 28 other HAPs from SDT NEI18338 0186

- Added ASB ( includes acetaldehyde, carbon disulfide, chloroform, formaldehyde, methanol, n aphthalene)

- Reduced acetaldehyde, chloroform, formaldehyde, naphthalene from primary clarifier

- Deleted methanol, HCE , and 1 7 other HAPs from primary clarifier NEI18658 0187

- Reduced naphthalene, 10 other HAPs from bleach plant

- Deleted HCE from brownstock washing, bleach plant, knotters, BLO unit NEI46599 0188

- Reduced acetaldehyde, chloroform, formaldehyde, methanol, naphthalene, 27 other HAPs from brownstock washing, black liquor storage tanks

- Increased stack temperature and velocity/flow for brownstock washing, SOG, pulp storage, oxygen delignification, black liquor tanks, causticizing, bleach plant, knotter, secondary fiber pulping when changed release point type

- Changed release point type for brownstock washing and black liquor storage tanks from fugitive to vertical with rain cap

- Recommended change to receptor location NEI42211 0189 Changed latitudes/longitudes and fugitive angles for OCC plant and paper machine NEI8186 0190

- Increased methylene chloride from LVHC

- Reduced acetaldehyde, formaldehyde, chloroform, methanol from LVHC

- Deleted records for causticizing miscellaneous, lime slaker (includes acetaldehyde, chloroform, naphthalene) NEI8560 0190

- Deleted records for causticizing miscellaneous, lime slaker (includes acetaldehyde, chloroform, naphthalene)

- Changed latitude/longitude and fugitive angle for WWT

- Recommended change to receptor location NEI8619 0190 Deleted records for causticizing miscellaneous, lime slaker (includes acetaldehyde, chloroform, methanol, naphthalene) NEI11251 0190

- Replaced undifferentiated records for paper machine with new records for paper machine wet/dry end

- Increased stack height for paper machines

- Increased fugitive area for WWT

- Deleted records for causticizing miscellaneous, lime slakers (includes acetaldehyde, chloroform, methanol, naphthalene)

- Changed latitude/longitude for WWT NEI18335 0190

- Deleted records for causticizing miscellaneous, lime slaker (includes acetaldehyde, chloroform, methanol, naphthalene)

- Deleted HCE from bleach plant NEI18357 0190 Deleted HCE from bleach plantsA

- 3

**NEI Code Docket** 

**ID for NEI**  **Revision Nature of the NEI Revision**  NEI26309 0190

- Increased fugitive area for WWT (ASB)

- Deleted HCE from bleach plant

- Changed latitudes/longitudes for WWT (ASB, up/downstream ditches)

- Changed fugitive angle for WWT (upstream ditch) NEI26495 0190 Recommended change to receptor location NEI26514 0190

- Reduced fugitive area of WWTP6

- Increased fugitive area for WWTP1

- 4

- Deleted records for causticizing miscellaneous, lime slaker (includes acetaldehyde, chloroform, methanol, naphthalene)

- Deleted HCE from bleach plant

- Changed latitudes/longitudes for WWTP1

- 4,6

- Changed fugitive angle for WWTP1,6 NEI33013 0190 Deleted records for causticizing miscellaneous, lime slaker (includes acetaldehyde, chloroform, methanol, naphthalene) NEI33025 or NEW71411 0190 Deleted records for causticizing miscellaneous, lime slaker (includes acetaldehyde, chloroform, methanol, naphthalene) NEI34070 0190

- Replaced undifferentiated records for paper machine with new records for paper machine wet and dry end

- Increased stack height and stack velocity/flow for paper machine when replaced paper machine records with separate wet/dry end records

- Deleted records for causticizing miscellaneous, lime slaker (includes acetaldehyde, chloroform, methanol, naphthalene, 15 other HAPs)

- Changed latitude/longitude for paper machine when replaced paper machine records with separate wet/dry end records NEI35908 0190

- Deleted records for causticizing miscellaneous, lime slaker, green liquor processing (includes acetaldehyde, chloroform, methanol, naphthalene)

- Deleted HCE from bleach plant NEI40247 0190 /0227

- Added phenol to digester chip bin

- Reduced acetaldehyde, formaldehyde, chloroform, methanol, and 16 other HAPs from digester chip bin

- Deleted records for causticizing miscellaneous, lime slaker (includes acetaldehyde, chloroform, naphthalene, methanol)

- Deleted HCE from bleach plant NEI41314 0190

- Deleted records for causticizing miscellaneous, lime slaker (includes acetaldehyde, chloroform, methanol, naphthalene)

- Deleted HCE from bleach plants

- Deleted naphthalene from causticizing miscellaneous, LVHC, NCG incinerator, BLO unit

- Deleted 8 HAPs from WWT

- Changed latitude/longitude for WWT

- Recommended change to receptor location NEI41628 0190

- Deleted records for causticizing miscellaneous, lime slaker (includes acetaldehyde, chloroform, methanol, naphthalene)

- Deleted HCE from bleach plant NEI45182 0190 /0227

- Added phenol to digester chip bin

- Reduced acetaldehyde, formaldehyde, chloroform, methanol, and 16 other HAPs from digester chip bin and LVHC

- Changed latitude/longitude for WWT NEI46760 0190

- Deleted records for causticizing miscellaneous, lime slaker (includes acetaldehyde, chloroform, methanol, naphthalene)

- Deleted HCE from bleach plants NEI33883 0192

- Reduced acetaldehyde, formaldehyde, naphthalene from WWT

- Changed fugitive angle for WWT

- Recommended change to receptor location NEI47104 0193

- Increased stack height , temperature, and velocity/flow for paper machine when changed release point type

- Changed release point type for paper machines from fugitive to vertical point sourceA

- 4

**NEI Code Docket** 

**ID for NEI**  **Revision Nature of the NEI Revision**  NEI54342 0194

- Changed release point type for causticizing, pulp storage, black liquor tanks, brownstock washing, decker from fugitive to stack

- Reduced stack height for some black liquor storage tanks

- Increased fugitive release height and reduced fugitive area for other black liquor storage tanks

- Increased stack height for causticizing (lime mud filter, lime slaker), pu lp storage , decker

- Increased stack temperature , diameter, and velocity/flow for causticizing, pulp storage, black liquor tanks, brownstock washing, decker when changed release point type NEI41552 0195 Recommended change to receptor location NEI18334 0197

- Reduced stack height for screens, lime mud filter, green liquor processing when changed their release point type from fugitive to stack

- Increased formaldehyde, Cr+6, 2 other HAPs from recovery furnace

- Increased acetaldehyde, methanol, formaldehyde, metals, naphthalene, 5 other HAPs from SDT

- Reduced velocity of NCG incineration

- Added metals, chloroform, POM, toluene, hexane to recovery furnace

- Added Cr+6, POM, 6 other HAPs to SDT

- Increased stack height for SDT and multiple subpart S units (50) wh en changed their release point type from fugitive to stack

- Reduced naphthalene from WWT

- Reduced acetaldehyde, carbon tetrachloride, chloroform, formaldehyde, methanol, naphthalene, phenol, other HAPs from decker

- Reduced acetaldehyde metals, methanol, na phthalene, 7 other HAPs from recovery furnace

- Reduced chloroform, metals, 18 other HAPs from SDT

- Increased stack temperature for SDT and multiple subpart S units (46) when changed their release point type from fugitive to stack

- Increased stack velocity/ flow for SDT and multiple subpart S units (55) (56 if include just stack flow of NCG incineration) when changed release point type

- Deleted records for bleach plant, knotter, brownstock washing, digester, screens (accounted for elsewhere) and decker, causticizing miscellaneous, lime mud washer (no longer in service) (includes acetaldehyde, chloroform, formaldehyde, methanol, naphthalene)

- Deleted HCE from bleach plants

- Deleted HCl from recovery furnace

- Changed release point type for SDT and multiple subpart S units (56) from fugitive to stack NEI46817 0198

- Reduced nickel from boiler

- Deleted HCE from bleach plants NEI34030 0199

- Reduced stack height for mech anical pulping

- Reduced stack velocity, flow for mech anical pulping

- Replace d undifferentiated records for paper machine with new records for paper machine wet/dry end

- Increased stack temperature for mech anical pulping

- Increased stack velocity/flow for boilers

- Changed latitude/longitude for paper machine when replaced paper machine records with separate wet/dry end records

- Changed latitudes/longitudes for boilers NEI26504 0200 Deleted records for recovery furnaces, SDTs (being replaced with new units, emissions data for which will not be ready until Septem ber 2012) NEI7181 0201 Deleted HCE from bleach plant, LVHC, HVLC, recovery furnace, SDT, lime kiln NEI18660 0202

- Reduced acetaldehyde from oxygen delignification

- Deleted HCE from bleach plant

- Deleted formaldehyde from pulp dryer

- Recommended change to receptor location NEI8265 0203

- Deleted HCE from bleach plant

- Deleted toluene

- 2,4

- diamine from black liquor storage tanksA

- 5

**NEI Code Docket** 

**ID for NEI**  **Revision Nature of the NEI Revision**  NEI47074 0204

- Replaced fugitive records for causticizing, paper machines with stack records for green liquor processing, paper machines

- Increased stack height , temperature, diameter, and velocity/flow for paper machines when replaced fugitive paper machine records with stack records

- Changed release point type for causticizing, paper machines from fugitive to stack

- Changed latitudes/longitudes for paper machines

- Changed brownstock washing to paper machine (SCC changed) NEIME0250002 0205

- Reduced stack temperature of boilers

- Replaced fugitive records for pressurized groundwood emission units with stack records (with lower emissions for acetal dehyde, formaldehyde, methanol, phenol, napthalene, etc.)

- Increased stack height , temperature, velocity/flow of pressurized groundwood emission units when replaced them with stack equivalents

- Increased stack height , diameter, velocity/flow of boilers

- Changed release point type for pressurized groundwood emission units from fugitive to stack

- Changed latitudes/longitudes for pressurized groundwood emission units and boilers

- Recommended change to receptor location NEI8178 0206

- Increased acetaldehyde, chloroform, methanol, toluene, biphenyl from decker

- Replaced unconsolidated records for paper machines with new (consolidated) records

- Added 10 HAPs to bleach plant, paper machines, decker

- Reduced acetaldehyde, formaldehyde, chloroform, methanol, tolue ne, benzene, MIBK, carbon disulfide from WWT, decker

- Deleted naphthalene from WWT and acrylonitrile from paper machines

- Changed max im

um hourly emissions NEI40600 0209

- Replace d fugitive records for paper machines with s tack records

- Reduced acetaldehyde, formaldehyde, chloroform, methanol, 19 other HAPs from black liquor storage tanks NEI8196 0210

- Increased stack heights for lime mud filter, lime slaker

- Reduced acetaldehyde, naphthalene from WWT

- Increased stack temperature and velocity/flow for lime mud filter when changed its release point type

- Deleted toluene

- 2,4

- diamine from black liquor storage tanks

- Changed release point type for lime mud filter from fugitive to stack

- Changed latitude/longitude for lime mud filter

- I ncreased stack diameter for lime slaker NEI40554 0211

- Increased stack temperature , diameter, and velocity/flow for HD/LD pulp storage when changed release point type

- Changed release point type for HD/LD pulp storage from fugi tive to horizontal point source NEI33981 0213

- Reduced stack temperature of boilers

- Increased stack height , diameter, and velocity/flow for boilers

- Deleted duplicate HAP data from boilers (includes acetaldehyde, formaldehyde, naphthalene, metals, and 22 other HAPs)

- Changed latitudes/longitudes for boi lers NEI11172 0217

- Reduced fugitive area of WWT

- Reduced acetaldehyde from WWT

- Changed latitude/longitude and fugitive angle for WWT

- Changed fugitive angle for WWT NEI7104 0226

- Added metals to boiler

- Increased stack height for bleach plant, deckers

- Reduced metals from boiler

- Deleted methylene chloride and carbon disulfide from lime kiln NEI47091 0230

- Increased acetaldehyde, formaldehyde, methanol, naphthalene, metals, 29 other HAPs from recovery furnace, SDT, lime kiln

- Increased metals, HCl from boilers

- Reduced metals, chloroform, 11 other HAPs from recovery furnace, SDT, lime kiln

- Reduced metals from boilers

- Deleted HCE from bleach plant, brownstock washing

- Changed max im

um hourly emissions f

or recovery furnace, SDT, lime kiln, boilersA

- 6

**NEI Code Docket** 

**ID for NEI**  **Revision Nature of the NEI Revision**  NEI7933 0232

- Increased stack diameter and velocity/flow for green liquor processing when changed release point type

- Deleted chloroform and 10 other chlorinated HAPs from digester, pulp storage, LVHC, brownstock washing, secondary fiber pulping

- Deleted o

- cresol from brownstock washing, green liquor processes

- Deleted o

- xyl ene from pulp storage

- Deleted biphenyl from paper machine

- Changed release point type for green liquor processing

- Changed lati tude/longitude for pulp storage NEI8261 0232

- Replace d records for PB5 and PB7 with updated records (that increase emissions)

- Deleted 11 chlorinated HAPs from tall oil, pulp storage, black liquor tanks, brownstock washing, LVHC, screens, secondary fiber pulping, paper machines

- Deleted biphenyl from secondary fiber pulping, paper machine

- Deleted o

- cresol from brownstock washing NEI8278 0232

- Increased stack diameter and velocity/flow for green liquor processing, black liquor tanks, pulp storage when changed release point type

- Deleted HCE from bleach plant

- Deleted o

- cresol from bleach plant, green liquor processing, brownstock washing , recovery furnace

- Changed release point type for green liquor processing, black liquor tanks, pulp storage

- Changed pollutant code for m,p

- cresol NEI11461 0232

- Replace d records for secondary clarifier and boiler with new records

- Deleted biphenyl from secondary fiber pulping and paper machines

- Changed latitudes/longitudes for primary/secondary clarifiers

- Ch anged fugitive angle for secondary clarifier NEI11610 0232

- Replace d records for paper machine with new records for all 12 vents on machine

- Increased stack height , temperature, diameter, and velocity/flow for secondary fiber pulping, paper machines, space heaters when changed release point type

- Changed release point type for secondary fiber pulping , paper machines, space heaters NEI18347 0232

- Reduced fugitive area for primary/secondary clarifier

- Replace d records for primary/secondary clarifier, ASB with new records (with revised fugitive angle)

- Increased fugitive area for ASB

- Deleted 9 chlorinated HAPs from HVLC

- Deleted biphenyl from secondary fiber pulping

- Deleted 11 chlorinated HAPs from SDT NEI26304 0232

- Added records for primary clarifier, ASB

- Deleted o

- xyl ene, 4 chlorinated HAPs from pulp storage

- Deleted biphenyl, methylene chloride from paper machine and secondary fiber pulping NEI33023 0232

- Reduced fugitive area of primary clarifier, WWTP

- Increased metals, PCB emissions from boilers

- Added Cr+3, methanol, POM, PCBs, 11 other HAPs to boilers

- Reduced metals emissions from boilers

- Increased stack temperature, diameter, velocity/flow for stock chests when changed release point type

- Deleted chloroform, 11 other chlorinated HAPs from brownstock washing, paper machine, secondary fiber pulping, NCG incin erator , pulp storage, tall oil

- Deleted biphenyl from paper machine

- Deleted o

- cresol from green liquor processing

- Deleted Be, Se from boiler

- Changed release point type for stock chests

- Reduced fugitive angle for primary clarifier

- Increased fugitive angle for WWTPA

- 7

**NEI Code Docket** 

**ID for NEI**  **Revision Nature of the NEI Revision**  NEI42254 0232

- Replace d records for boilers with new records

- Added total xylenes to screens, lime kiln

- Increased stack height and temperature for evaporator/concentrator when changed release point type

- Increased stack diameter and velocity/flow for evaporator/concentrator, green liquor processing when changed release point type

- Deleted biphenyl from paper machines

- Deleted o

- cresol from bleach plant, green liquor processing, recovery furnac e

- Deleted o

- xyl ene from tall oil, screens, lime kiln, recovery furnace

- Changed release point type for evaporator/concentrator, green liquor processing NEI42317 0232

- Increased stack diameter and velocity/flow for green/white liquor processing, pulp storage, black liquor tanks, lime slaker when changed release point type

- Deleted 12 chlorinated HAPs from digester, brownstock washing, tall oil, pulp storage, evaporator/ concentrator

- Deleted o

- xyl ene from pulp storage

- Changed release point type for green/white liquor processing, pulp storage, black liquor tanks, lime slaker from fugitive to stack

- Changed SCC from 30700122 (causticizing miscellaneous) to 30700132 (green liquor processing ) NEI45474 0232

- Deleted records for ClO 2 mixer (includes acetaldehyde, Cl 2 , chloroform, formaldehyde, methanol)

- Deleted HCE from bleach plants

- Deleted o

- xyl ene from pulp storage, recovery furnace

- Changed fugitive angle for WWT NEI42341A 0234

- Added chloroform to AS T sy stem (tanks 1

- 3)

- Reduced chloroform from cooling towers, primary clarifier NEI759 none Deleted HCE from brownstock washing/HVLC NEI6450 none - Increased fugitive area for WWT and paper machines

- Reduced acetaldehyde, formaldehyde emissions from paper machines

- Changed latitudes/longitudes and fugitive angle for WWT, paper machines NEI33135 & NEI706 none - Increased stack height , temperature, velocity/flow for decker, knotter, pulp storage, black liquor tanks, causticizing when changed release point type

- Reduced formaldehyde from white liquor processing

- Deleted records for brownstock washing (emissions go to power boilers) (includes acetaldehyde, formaldehyde, methanol, carbon tetrachloride)

- Changed re lease point type for decker, knotter, pulp storage, black liquor tanks, causticizing from fugitive to stack NEI41552 none - Reduced stack height and velocity for paper machines (3 records)

- Increased acetaldehyde from paper machines (2 records)

- Replaced fugitive records for black liquor tanks with replacement stack records (no change in emissions) ( 2 unique records)

- Reduced acetaldehyde from paper machines (91 records) and ASB (1 record)

- Increased stack velocity

/f low of black liquor tanks (4 unique reco rds)

- Increased stack diameter for paper machines (3 unique records) and black liquor tanks (2 unique records)

- Deleted acetaldehyde from primary settling basin

- Changed release point type for black liquor tanks from fugitive to stack (3 unique records)

- Changed lat itude/long itude for ASB

- Recommended change to receptor location

- Changed SCC from 30700122 (causticizing misc ellaneous ) to 30700132 (green liquor processing)A

- 8

**NEI Code Docket** 

**ID for NEI**  **Revision Nature of the NEI Revision**  NEI42357 none - Reduced acetaldehyde from ASB

- Reduced acetaldehyde, metals, naphthalene from LK

- Reduced arsenic from SDT

- Reduced metals from boiler

- Deleted acrolein, formaldehyde, acetaldehyde, nap hthalene, methanol, 5 other HAPs from SDT

- Reduced fugitive area and i ncreased release temperature for ASB

- Reduced stack diameter and calculated increased stack velocity for RF

- Changed lat itudes /long itude s for ASB, RF, SDT, LK, boiler