### Date: May 22 , 2015

**Subject:** Summary

of Public Comments and EPA’s Responses for the Completion of Requirements to Promulgate Standards Under CAA Section 112(c)(6) 2015 Final Rule
**From:** Chuck French , EPA/OAQPS/ S P PD
**To:** Docket : EPA

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**I. Introduction** 

On December 16, 2014, the EPA published in the **Federal Register** the proposed determination that the requirements of CAA section 112(c)(6) were fulfilled in February of 2011. 79 FR 74656 (December 16, 2014)

. We received public comments in response to this proposal. Some comments and responses appear in the preamble to the final rule. This document contains summaries of the public comments that the EPA received on the proposed standards that are not summarized and addressed in the preamble to the final rule. Copies of all comments submitted are available at the EPA docket Center Public Reading Room. Comment letters and transcripts of the public hearings are also available electronically through http://www.regulations.gov by searching Docket ID EPA

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**I I.**  **List of Commenters** 

Table 1 summarizes the names of the associations and individuals who provided comments on the proposed Clean Air Act (“ CAA ” or “the Act”) Section 112(c)(6) Completion of Requirement to Promulgate Standards

. **Table 1. Commenter List**  **Comment No. b**  

### Association **Name** 0012 Council of Industrial Boiler Owners (CIBO) Robert D. Bessette 0013 Coalition for Clean Air Implementation Jeffrey Knight 0014 Earth Justice on behalf of Sierra Club Neil Gormley

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**I I**  **I. Summary of Comments and Responses** 
**1. Support**  **for the**  **EPA ’s Determination** 
**Comment :**  Commenter s 0013 and 0012 support the EPA’s proposed determination that the requirements of CAA § 112(c)(6) have been satisfied. The commenters support the EPA’s revisions and adjustments to the 1990 baseline inventory and the CAA §112(c)(6) list which commenter 0012 states more accurately

reflect source category emissions and are based on data provided by industry over the last 20 years.
Commenter 0013 states that the regulations included in Tables 2 and 3 of the Proposed Rule that satisfy

the 90 percent requirement under § 112(c)(6) impose a range of emission control measures

– from numerical emission limits to emission reduction requirements to work practi ce and engineering controls

– that clearly constitute “standards” as contemplated under CAA §§ 112(c)(6), (d)(2), and (d)(4). The commenter notes that the language of § 112(c)(6) contemplates the full range of control requirements the EPA required in those rules and does not require the EPA to promulgate these standards in any particular form. The commenter concludes by stating that the controls required under the listed rules are achi eving emission reductions of §1 12(c)(6) hazardous air pollutants (HAP ) (and of other HAP regulated under CAA § 112) and related health benefits as projected by the EPA in each rule. **Response :**  The EPA agrees that it has satisfied the section 112(c)(6) requirement and that the standards in the proposed determination do reduce the section 112(c)(6) HAP. The EPA established the standards identified in the proposed determination through notice and comment rulemaking actions pursuant to Clean Air sections 112(d)(2) and 307(d).
**Comment :**  Commenter s 0012 and 0013 agree with the EPA’s approach to use the 16

- polycyclic aromatic hydrocarbons ( PAH inventory for determining the 90 percent threshold for polycyclic organic matter (POM ) )

. 1 C ommenter 0013 also states that using a combination of the 16

- PAH, 7

- PAH, and/or EOM inventories would not be permissible because the EPA has recognized that the 7

- PAH and EOM inventories lack sufficient data and are not as robust as the 16

- PAH inventory

. The commenter goes on to say that using all three inventories to determine the 90 percent threshold is not required by § 112(c)(6) and doing so would be unsound given the distortions this would create in the relative contribution of POM emissions for some source categories. Additionally, the commenter states that because the thre e inventories overlap in the compounds they include , using multiple inventories would risk double

- or triple

- counting emissions from some source categories. 2 **Response :**  The EPA agrees that its inventory approach for the section 112(c)(6) HAP POM is reasonable.
**Comment :**  Commenters 0012 and 0013 support the EPA’s use of surrogates and state that the United States Court of Appeals for the D.C. Circuit (D.C. Circuit) has upheld the use of a surrogate substance to regulate hazardous pollutants when it is reasonable to do so. See Nat’l Lime Ass’n v. EPA , 233 F.3d 625, 637 (D.C. Cir. 2000) (upholding use of particulate matter emissions as a surrogate for HAP metal emissi ons from cement kilns because evidence showed HAP metals are almost always present in cement kiln particulate matter); Sierra Club v. EPA , 353 F.3d 976, 982

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1 See 79 Fed. Reg. at 74672. 2 See 79 Fed. Reg. at 74672.

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(D.C. Cir. 2004) (upholding use of particulate matter as surrogate for HAP emissions in copper s melter MACT rule); Bluewater Network v. EPA , 370 F.3d 1, 18 (D.C. Cir. 2004) (upholding hydrogen chloride emissions as a surrogate for fine particulate matter). See also Sierra Club v. Johnson , 444 F.Supp.2d 46, 60 (D.D.C. 2006). Additionally, commenter 00 13 states that the EPA may regulate a pollutant indirectly by requiring control methods or practices that have the co

- benefit of also controlling emissions of the pollutant. See NRDC v. EPA , 822 F.2d 104, 125 (D.C. Cir. 1987).
Commenter 0013 also notes that in prior rulemakings the EPA has explained and requested public comment on its reasoning for using surrogates generally and specifically as to polychlorinated biphenyls ( PCBs ) and POM. 3 Even when the EPA did not specif ically cite the connection to § 112(c)(6) in setting some earlier standards, the commenter states that the surrogate relationships the EPA used in those rules are scientifically sound and therefore permissible under National Lime and related cases. In addition, as noted in the Proposed R ule, th e commenter states that standards set using surro gates reduce emissions of the § 112(c)(6) HAP, and therefo re satisfy the requirement of § 112(c)(6). Regarding ICI boilers, commenter 0012 states that the EPA’s § 112(c)(6) conclusi ons and use of carbon monoxide (CO) as a surrogate to regulate POM are well supported by the records in the major source boiler and area source boiler rulemakings.
La stly , commenter 0013 states that the EPA’s use of scientifically sound surrogates is further supported by

the practical difficulties of focusing standards on one specific HAP compound in a category of related pollutants. The alternative of monitoring and controlling each individual pollutant invites technical complications and imposes burdens and costs for no reductions or marginal reductions in emissions. In many cases , the commenter notes, it is more difficult and costly for the EPA to set

– and for the regulated community to comply with

– standards focused on a single HAP compound where an existing monitoring device or test method collects data on a category of related pollutants that are already subject to standards. The commenter believes it would be irrational for the EPA to propose separate standards and/or emission monitoring for a particular § 112(c)(6) HAP where existing standards control and monitor emissions of that HAP through surrogate pollutants. The commenter highlights that nothing in CAA § 112(c)(6) requires or permits the EPA to propose such unreasonable and unnecessary requirements **Response :**  As explained in the final determination published in the Federal Register, comments on the substance of the standards listed in the proposed section 112(c)(6) determination are outside the scope of this rulemaking. The EPA agrees that it has the authority to establish surrogate standards and maintains that the standards were issued pursuant to CAA sections 112(d)(2) and 307(d).
**2. Opposition to**  **Surrogacy Determinations in Prior**  **EPA Regulations Issued Through Notice**  **and Comment Rulemaking P**  **ursuant to Sect i**  **o n**  **307 (d) of the CAA** 

3 See, e.g., Final Standards for HAPs for Hazardous Waste Combustors , 64 Fed. Reg. 52827, 52847 (Sept. 30, 1999) (“We proposed that that emission of nondioxin/furan organic HAPs be controlled by compliance with continuously monitored emission standards for either of two surrogates: CO or hydrocarbons.”); Standards of Performance for New Stationary Sources and Emissions Guidelines for Existing Sources: HMIWI , 74 Fed. Reg. 51368, 51390, 51399 (Oct. 6, 2009) (“While we have not identified specific numerical limits for POM and PCB, we believe CO serves as an effective surrogate for those pollutants, because CO, like POM and PCBs, is formed as a byproduct of combustion ... . We believe that dioxins/furans also serve as an effective surrogate for PCBs, because the compounds act similarly and, thus, are expected to be controlled similarly using HMIWI emissions control technology ... .”); Standards of Performance for New Stationary Sources and Emission Guidelines for Existing Sources: Large Municipal Waste Combustors , 70 Fed. Reg. 75 348, 75356 (Dec. 19, 2005) (“EPA considers emissions of these five pollutants from MWC units “subject to standards” for purposes of CAA section 112(c)(6)”); NESHAPs for Major Sources: Industrial, Commercial, Institutional Boilers and Process Heaters , 76 Fe d. Reg. 15608, 15653 (Mar. 11, 2011) (“Consequently, we have concluded that the emissions limits for CO function as a surrogate for control of POM, such that it is not necessary to require numerical emissi ons limits for POM with respect to boilers and proc ess heaters to satisfy CAA Section 112(c)(6).”)

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Commenter 0014 commented on a number of the section 1 12(d)(2)/(4) standards that the EPA counted towards satisfying the requirement to establish such standards for source categorie s accounting for not less than 90 percent of the section 1 12(c)(6) HAP emitted from major and area stationary sources. Some of the standards at issue were established more than 20 years ago. As stated in the Federal Register notice , the proposed section 112(c)(6) determination did not reopen the prior rules and section 112(c)(6) does not create a separate cause of action allowing the commenter to challenge the adequacy of prior EPA rules promulgated pursuant to other provisions of the CAA

. The EPA has established section 1 12(d)(2) or (4) standard s (and section 129 standards) for categories sufficient to ensure that categories accounting for not less than 90 percent of the section 11 2(c)(6) pollutants are subject to standards. All of those standards were promulgated through notice and comment rulemaking pursuant to CAA section 307(d). Comments on prior rules are outside the scope of this action and thus require no response

. Nonetheless, the EPA recognizes the significant public interest in these issues and therefore, in this document, explains why the criticisms of prior rules lack merit. These responses do not constitute the Agency’s justification for those prior actions as the justification for each rule was provided at the time of promulgation and based on the information available at that time. Further, no aspect of the prior rules has been reopened or reconsidered. As explained in greater detail below, commenters had numerous opportunities to challenge the sufficiency

of those standards with regard to HAP emitted from tho se source categories, including the section 112(c)(6) HAP

. They also have additional avenues to bring newly identified concerns to the Agency ’s attention.
**A. Opposition to**  **the Section 112(d) Standards for**  **Coke Ovens**
**Comment:** Commenter 0014 states that for several industrial source categories included in the EPA’s proposal, the agency has not set standards requiring the maximum achievable reduction in the emissions of the 7412(c)(6) pollutants , but instead claims that it has imposed a MACT

- level of control on those sources’ total emissions, which that commenter believes is not the same thing. The commenter uses coke ovens as an example and states that the EPA assured that “coke oven emissions (which include POM)” “are subject to a MACT level of control.” 4 The commenter states that the EPA’s claim that the MACT standards for total HAP are the “only feasible means of regulating” emissions of POM from coke ovens 5 does not speak to whether total HAP is a reasonable surrogate for POM ( i.e., whether emissions of total HAP identify the best performing coke ovens with respect to POM and what they can achieve with respect to POM Sierra Club , 353 F.3d at 985; 42 U.S.C. §7412(d)(2)

- (3 )) . Rather, the commenter believes it is a claim that the EPA is not able to set a POM limit for coke ovens. The commenter states that if the EPA believed it was not feasible to set emission standards for POM, the agency wa s free to so claim and, under § 7412(h), establish work practice standards in lieu of emiss ion standards for POM.
The commenter adds that the EPA does not claim that visible emissions are a surrogate for POM or that POM is “invariably present” in visible emissions. The commenter believes that POM is not “ invariably

present” in visible emissions because POM includes many different classes of particles, some of which are gaseous and not present in visible emissions 6 . The commenter notes that the EPA also does not claim that visible emissions are correlated with gaseous POM or provide any data to establish such correlation. The commenter believes that the EPA only claims that reductions

4 79 Fed. Reg. 74,678/2

. 5 C iting the preamble to that rule. 79 Fed. Reg. 74,678/2 (citing 69 Fed. Reg. 48,341). 6 See Sahu Comments at 2

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in visible emissions result in a reduction in mass emissions, not that reductions in visible emissions will produce any reduction in POM, or that low levels of POM will be detected though measurement of visible emissions. Therefore , the commenter concludes that using visible emissions as a surrogate does not allow the EPA to identify the best performers with respect to POM, as required by section 7412(d)(3) and Sierra Club , 353 F.3d at 985. Nor, the commenter states, does the EPA claim that reducing visible emissions is the “only means by which facilities achieve reductions” in POM. National Lime , 233 F.3d at 639. In fact, the commenter states, that fugitive coke emissions can be captured and routed to a control device 7 which may not reduce POM, or may reduce it far less than visible emissions . The commenter also concludes that even if the EPA were to claim that visible emissions are a surrogate for POM, that claim would be arbitrary because there is no supporting data and analysis on POM emissions in the record

. **Response:** This comment argues that the original MACT standards f or several source categories including the coke oven source category did not adequately establish MACT standards for POM

. The commenter’s assertion that the EPA cannot include the coke oven source category in its inventory of sources subject to MACT standards for POM relies exclusively on the argument that the underlying MACT standards were inadequate. The comment seeks to identify a variety of inadequacies such as inadequate data to establish a surrogacy relationship and suggests that the EPA should now evaluate additional control options not included in the original rule. In 1999, the commenter filed a petition requesting that the EPA revise the coke over NESHAP to address section 112(c)(6). In 2001, the E PA denied the petition and explained that the coke oven standards meet section 112(c)(6) obligation with respect to POM. Further, a s explained in greater detail below , the se comment s go to the validity of the underlying MACT rule and not to the reasonablen ess of the EPA’s determination that it has established 7412(d)(2)/(d)(4) standards for source categories that comprise at least 90 percent of the aggregate emissions of certain HAP to satisfy its obligations pursuant to 1 12( c )(6). This comment is thus beyond the scope of this rulemaking and the EPA has no obligation to respond.
In the p roposed s ection 112(c)(6) determination , the EPA identified the section 307(d) rulemaking s that established MACT standards for the source categories in its inventory of sources subject to MACT standards for the 112(c)(6) pollutants. For some standards it also provided additional information explaining how those standards reduce the section 112(c)(6) HAP

. The EP A did not, in that notice, reopen or request comment on the stringency of those MACT standards , the validity of any surrogates used in those standards, or the validity of any other aspect of those prior rulemakings

. The EPA is required by the CAA to justify any surroga cy relationships relied upon and any MACT standards established at the time they are promulgated based on the record at that time. In addition, the CAA requires the EPA to set MACT standards for all HAP emitted by major sources in a source category

. All of the standards relied on in the EPA’s inventory were promulgated under section 112 through notice and comment rulemaking, and any party could have challenged, during that rulemaking process or in court following promulgation of the rule, the validity of the surrogacy relationships or argued that the standards did not constitute MACT for one or more HAP emitted by the source category. The commenter appears to argue that if the EPA were to propose the coke oven standards today

the commenter would object because it maintain s the standards do not represent MACT , based on information available today , and because the surrogate used to regulate HAP when the standards were promulgated is unlawful in its opinion

. The commenter is essentially arguing that

7 See Sahu Comments at 2

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the EPA must determine anew , based on information not in the record or in many cases even available at the time the standards were issued , that the MACT standards EPA included in the proposed section 112(c)(6) determination are consistent with the requirements of section 112(d)(2) /(4) and also that the EPA’s proposed section 112(c)(6) determination allows the commenter to raise issues that it should have raised during the comment period s for the coke ovens rules

. The commenter is incorrect.
The coke oven standards were promulgated is some cases more than 20 years ago , and the commenter could have raised any concerns regarding the MACT standards and surroga cy relationships during the comment period for the coke oven rules based on the information that was available at the time

. The commenter could have petitioned the EPA for reconsideration of the rules within 60 days of publication in the Federal Register under section 307 (d)(7)(B) if the commenter believed the section 112(d)(2)/(4) standards, including the surrogate standards, applicable to coke oven s did not comply

with the requirements of the CAA

. See 57 FR 57535 and 69 FR 48341

. The commenter could have challenged the surrogates and the section 112(d)(2)/ (4) standards in the D.C. Circuit. As stated above, the c ommenter filed a petition for rulemaking after the 1998 listing notice and the EPA denied that petition. The commenter did not challenge the EPA’s denial of the petition

. All of these avenues were available to the commenter and it did not take them. Commenter cannot now assert claims that could have on so many prior occasions been raised to the Agency and the courts. The CAA creates a system that leads to finality of standards and the comments challenging rules that are in some cases decades old is an impermissible attempt to upend that process.
The NESHAP for Coke Oven Batteries ( Subpart L and Subpart CCCCC ) subject all HAP, including POM, emissions from coke oven s to MACT level of control

. 8 During the rulemaking, the EPA identified coke oven emissions as including POM. 9 EPA further confirmed the NESHAP control POM in the 2005 final rule for the Coke Oven Batteries NESHAP , in which the EPA states that “there is an established relationship between op acity and mass concentration of parti cles. In addition, sampling and analysis has shown that the PM in battery stack emissions contains HAP, including organic PM and PAH. ” 10 The coke oven standards are also consistent with CAA section 112(c)(8), which specifies minimum requirements for this category; section 112(c)(8) expressed these requirements in terms of visible emissions. Observation and engineering theory indicate that a reduction in visible c oke oven emissions re sults in a reduction in mass emissions , therefore reductions in vi sible emissions will reduc e emissions of POM

. **B. Opposition to**  **the Section 112(d)(2) Standards for**  **Aerospace Coating Operations**
**Comment:** Commenter 0014 disagrees with the EPA ’s claim that total HAP is a surrogate for POM because “Total HAP” is not a pollutant and the EPA has not and cannot establish a valid surrogacy relationship between “total HAP” and POM.
The commenter states that the EPA does not claim or provide data in the docket to show that POM is “invariably

present” in the other HAP emitted; that the control approaches used to reduce other HAP in coatings reduce POM “indiscriminately” 11 or that the methods used to control total HAP in surface coatings are the only methods that can be used to control POM. The commenter notes that the EPA claims that POM from these sources is naphthalene, which can be controlled in

8 See 69 FR 48341. 9 57 FR 57535 (December 4, 1992). 10 See 70 FR 19994 and 70 FR 20007

. 11 See 79 Fed . Reg. 74,678/2 (claiming only that total HAP is controlled, not that POM is).

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both industrial and consumer applications by using naphthalene

- free formulas, but notes that the EPA has not shown that using total HAP as a surrogate allows it to identify the best performers using low or non - naphthalene formulas, or to determine the maximum achievable reduction in naphthalene using these approaches. 12 The commenter further argues that EPA has not addressed control methods other than formula changes, and therefore has not shown that methods to control total organic HAP are the only way to control POM. For example , the commenter states that surface coating operations also capture fugitive emissions using hood s, spray booths, ventilation systems which can then route captured pollutants to control devices like thermal oxidizers. But the commenter asserts that thermal oxidizers can actually increase POM emissions, because “it is well established that various POM, such as PAHs can, in fact, be generated in such high temperature environments.” 13 Additionally , the commenter states that the EPA provides no data to support the claim that no other POM other than naphthalene are emitted. The commenter also maintains that EPA incorrectly claims that naphthalene is a volatile organic compound (VOC ) that will be captured by the VOC limits when naphthalene is only semi

- volatile and may not be volatile under the conditions that obtain in aerospace surface coating operations. 14 Thus , the commenter believes the EPA’s limit on total HAP will not capture changes in the POM emitted by these sources, or enable the EPA to identify the best performers, because measurements of VOCs will not capture the POM content of coatings.
The commenter also takes issue with the EPA ’s claim that total HAP from aerospace surface coating operations are “effectively controlled” by existing standards b ecause the EPA does not say what degree of control must be required for control to be “effective ”. The commenter also states that EPA does not claim that HAP are controlled to the maximum extent achievable or that POM is “effectively controlled,” let alone that it is controlled to the degree required by § 7412(d)(2)

- (3). 15 **Response:** As explained bel ow, this comment goes to the validity of the Aerospace NESHAP and not to the reasonableness of the EPA’s determination that it has established 1 12(d)(2)/(d)(4) standards for source categories that comprise at least 90 percent of the aggregate emissions of certain HAP to satisfy its obligations pursuant to section 1 12( c )(6). The comment is thus outside the scope of this rulemaking and no response is required. In the proposed s ection 112(c)(6) determination , the EPA characterized the section 307(d) rulemaking establishing section 112(d)(2)/(4) standards for aerospace coating operations and how those standards reduce the section 112(c)(6) HAP. The EPA was not reopening the comment period on the surrogate the EPA us ed to regulate HAP emissions from aerospace coating operations or the stringency of the MACT standards. The EPA is required by the CAA to justify surrogate and MACT standards at the time they are promulgated based on the record at that time. The commenter appears to argue that if the EPA were to propose the aerospace coating operations standards today the commenter would object because they maintain the standards do not represent MACT, based on information available today, and because the surrogate used to regulate HAP when the standards were promulgated is unlawful in its opinion

. The commenter is essentially

arguing that the EPA must determine anew, based on information not in the record or in many cases even available at the time the standards were issued, that the MACT standards the EPA included in the proposed section 112(c)(6) determination are consistent with the requirements of section 112(d)(2)/(4) and also that the EPA’s proposed section 112(c)(6) determination allows the

12 79 Fed. Reg. 74,678/2 n.29; See Sahu Comments at 4

. 13 Sahu Comments at 3

. 14 See id. At 3

- 4. 15 79 Fed. Reg. 74,678/2.

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commenter to raise issues that it should have raised during the comment periods for the aerospace coating operations rules. The commenter is incorrect

. The aerospace coating operations were promulgated years ago, and the commenter could have raised its MACT and surrogate issues during the comment period for the aerospace coating operations rule based on the information that was available at the time. The commenter could have petitioned the EPA for reconsideration of the rules within 60 days of publication in the Federal Register under section 307(d)(7)(B) if the commenter believed the section 112(d)(2)/(4) standards, including the surrogate standards, applicable to aerospace coating operations did not comply with the requirements of CAA. The commenter could have challenged the surrogates and the section 112(d)(2)/(4) standards in the D.C. Circuit. The commenter could have petitioned the EPA for rulemaking if it believed that the 1998 listing notice was the first time the public had notice of the fact that EPA was including aerospace coating operations in the section 112(c)(6) accounting. If the EPA did not respond to that petition in a timely manner, the commenter could have filed a complaint for unreasonable delay in U.S. district court. All of these avenues were available to the commenter and it did not take them. Commenter cannot now assert claims that could have on so many prior occasions been raised to the Agency and the courts. The CAA creates a system that leads to finality of standards and the comments on this issue attempt to upend that process.
S ection 112(d)(2)/(4) standards applicable to aerospace coating operation s control HAP emissio ns, including POM. 40 CFR Part 63 , Su bpart GG

. POM is an organic HAP and the EPA established a total organic HAP standard

. A reduction in total organic HAP includes a reduction in the POM emitted from aerospace coating operations

. The POM emitted by these sources is expected to be naphthalene and the amount emitted will depend on the coating formulation

. Commenter notes that there are currently naphthalene

- free coatings and that some coating sectors have successfully transitioned to naphthalene

- free coating formulas

. The commenter fails to note, however, that the development of these naphthalene/POM free coatings was at least in part in response to the requirement to reduce HAP emissions

. The commenter has not demonstrated that the naphthalene

- free products were available at the time the EPA established the standards or that naphthalene

- free coatings are usable alternatives for all aerospace coating purposes. If such products were available at the time the EPA promulgated the rule, the commenter should have brought that information to the Agency’s attention during the comment period. The EPA also disagrees with the commenter’s statement that the EPA “has not shown that methods to control total organic HAP are the only way to control POM.” To the extent that the comment views the total HAP standard as restricting the control option to only reformulation, the comment is incorrect. S urface coating operations also capture fugitive emissions using hoods, spray booths, ventilation systems which can then route captured pollutants to control devices like thermal oxidizers

. The standard in fact includes multiple ways to control organic HAP emissions from coating operations such as reformulation and add

- on controls or a combination of the two. However, as with most surface coating operations, the predominant strategy for meeting the standards remains reformulation because the surface coating operations are typically performed by painters. Add

- on control devices are typically seen at sources using either robotic surface coating operations or when the surface coating operations are vented with other HAP

- emitting processes to provide a concentrated emissions stream.

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As part of the residual risk/technology review (RTR) of the aerospace MACT standards, the EPA developed an RTR modeling file which included total naphthalene emissions for all manufacturing and rework operations in the aerospace source category as the baseline emission for purposes of RTR. The EPA compared the 1990 naphthalene baseline emission inventory for the aerospace industry (79 FR 74661) to the more recent naphthalene emissions from the RTR modeling file. When the aerospace manufacturing and rework facilities MACT standard was promulgated (60 FR 45952), the anticipated emission reductions from surface coating operations was 59 percent. From this comparative analysis we found that emissions of total naphthalene for all manufacturing and rework operations in the aerospace source category have been reduced by 99.96 percent since the updated 1990 bas eline inventory

. The results show that the MACT standards for aerospace c oating operation, including the limits for total organic HAP have resulted in naphthalene reductions of a magnitude that would be achieved by the types of capture and control noted by the commenter and demonstrate that regulating total organic HAP has result ed in POM emission s reductions. In addition, the current RTR modeling file, which has been updated with the latest available information, shows no POM emissions other than naphthalene
. Similarly, based on current RTR modeling file data, emissions of total mercury compounds for all manufacturing and rework operations in the aerospace source category have been reduced by 87.23 percent

. 

### C. **Opposition to the Section 112(d)(2) Standards for**  **Other Coating Operations** 
**Comment:** Commenter 0014 believes that the EPA’s claim that “total organic HAP” is a surrogate for POM is arbitrary because “total organic HAP” is not a pollutant, and the EPA has not established and cannot establish a valid surrogacy relationship between “total organic HAP” and POM from fabricated metal products, miscellaneous metal parts, coated and laminated paper and packaging, paper and other web coating, paint and alli ed products, wood household furniture manufacturing, transportation equipment manufacturing, shipbuilding and repair, and commercial printing. The commenter states that the EPA has not shown or explained how using total organic HAP as a surrogate for POM enables it to identify “the best achieving sources” or “what they can achieve” with respect to POM. Sierra Club , 353 F.3d at 985; 42 U.S.C. § 7412(d)(2)

- (3). Additionally, the commenter states that the EPA does not claim or provide data in the docket to show that: POM is “invariably

present” in the other HAP emitted; that the control approaches used to reduce other HAP in coatings reduce POM “indiscriminately”; or that the methods used to control total HAP in coating operating are the only methods that can be used to control POM. The commenter further asserts that several U.S. manufacturers have developed naphthalene

- free formulas for surface coatings used in both industrial and consumer applications. 16 Similar to aerospace, the commenter maintains that the EPA has not addressed control methods other than formula changes, and therefore has not shown that methods to control total organic HAP are the only way to control POM. The commenter states surface coating operations also capture fugitive emissions using hoods, spray booths, ventilation systems, and other method which can be routed to control devices like thermal oxidizers. 17 The commenter then asserts that thermal oxidizers can increase POM emissions, because “it is well

16 See Sahu Comments at 4. 17 Sahu Comments at 3. See 69 Fed. Reg. 130, 134; 67 Fed. Reg. 72276 which stated “You could also use a capture system and add

- on control device to meet the emission limits.”

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established that various POM , such a s PAHs can, in fact, be generated in such high temperature environments.” 18
The commenter believes that the EPA’ s claim that for all these sources “there was no technical basis . . . to differentiate between POM and other organic HAP” 19 provides no support that it has established a surrogacy relationship and appears to be an admission that the agency has not done so, because if there is no “technical basis” to differentiate the pollutants, there can be no technical basis for establishing a surrogacy relationship between them. Moreover, the commenter argues that the Clean Air Act requires the EPA to differentiate between different HAPs, including POM 20 and section 7412(c)(6) requires the maximum achievable reduction in the pollutants listed in that paragraph, including POM. The commenter states that whether the EPA believes there is a “technical basis . . . to differentiate” is irrelevant. Moreover the commenter asserts that EPA’s claim is arbitrary

because the EPA in fact has established a chemical definition of POM, and the EPA does not deny that POM can be measured. Therefore , the commenter states that EPA’s claim that it cannot differentiate between POM and other pollutants is unsupported and illogical. **Response:** As explained below, this comment goes to the validity of the various other coating operations NESHAPs and not to the reasonableness of the EPA’s determination that it has established 112(d)(2)/(d)(4) standards for source categories that comprise at least 9 0 percent of the aggregate emissions of certain HAP to satisfy its obligations pursuant to section 112( c )(6). The comment is thus outside the scope of this rulemaking and no response is required. In the proposed s ection 112(c)(6) determination , the EPA ch aracterized the section 307(d) rulemakings establishing section 112(d)(2)/(4) standards for the various other coating operations and how those standards reduce the section 112(c)(6) HAP. EPA was not reopening the comment period on the surrogate s EPA used to regulate HAP emissions from these other coating operations or the stringency of the MACT standards. EPA is required by the CAA to justify surrogate and MACT standards at the time they are promulgated based on the record at that time. The commenter appears to argue that if the EPA were to propose these other coating operations standards today the commenter would object because they maintain the standards do not represent MACT, based on information available today, and because the surrogate used to regulate HAP when the standards were promulgated is unlawful in its opinion

. The commenter is essentially arguing that EPA must determine anew, based on information not in the record or in many cases even available at the time the standards were issued, that the MACT standards the EPA included in the proposed section 112(c)(6) determination are consistent with the requirements of section 112(d)(2)/(4) and also that the EPA’s proposed section 112(c)(6) determination allows the commenter to raise issues that it should have raised during the comment periods for the se other coating operations rul es. The commenter is incorrect.
The various coating operations standards were promulgated ye ars ago , and the commenter could have raised its MACT and surrogate issues during the comment period for those other coating operations rules based on the information that was available at the time. The commenter could have petitioned the EPA for reconsideration of the rules within 60 days of publication in the Federal Register under section 307(d)(7)(B) if the commenter believed the section 112(d)(2)/(4) standards, including the surrogate standards, applicable to the various coating operations did not comply with the requirements of CAA. The commenter could have challenged the surrogates and the section 112(d)(2)/(4) standards in the D.C. Circuit. The commenter could have petitioned EPA for

18 Sahu Comments at 3. 19 79 Fed. Reg. 74,678/2

. 20 42 U.S.C. § 7412(c)(6).

### 11

rulemaking if it believed that the 1998 listing notice was the first time the public had notice of the fact that the EPA was including these coating operations in the section 112(c)(6) accounting. If the EPA did not respond to that petition in a timely manner, the commenter could have filed a complaint for unreasonable delay in U.S. district court. All of these avenues were available to the commenter and it did not take them. Commenter cannot now assert claims that could have on so many prior occasions been raised to the Agency and the courts. The CAA creates a system that leads to finality of standards and the comments on this issue attempt to upend that process.
The EPA maintains that the section 112(d)(2)/(4) standards applicable to the various coating operations control HAP emissions, including POM , from those source categories

. Total organic HAP from fabricated metal products and transportation equipment manufacturing are regulated through MACT standards that limit the organic HAP emissions per gal lon of coating solids deposited. 21 Total organic HAP from paper and other web coatings (including coated and laminated paper and packaging) for existing sources are regulated through MACT standards that require one of the following: 1) limit emissions to no more than 5 percent of the mass of organic HAP applied each month (95 percent reduction); 2 ) limit the total mass of organic HAP in the coating materials, or the total mass of organic HAP emitted, to no more than 4 mass percent of the total mass of coating materials applied to the web substrate each month; or 3) limit the total mass of organic HAP in the coatings, or the total mass of org anic HAP emitted, to no more than 20 mass percent of the total mass of coating solids applied to web substrates each month. 22 Total HAP emissions from paint and allied products are regulated by the requirement to install covers on vessels that store or process materials. 23 Total HAP emissions from wood household furniture manufacturing are regulated by a ban on conventional spray

guns
. 24 Total volatile organic HAP emissions from shipbuilding and repair are regulated by a VOHAP content limit or the utilization of add

- on controls as well as work practices to ensure that spills and leaks are minimized

. 25 Finally , total HAP emissions from commercial printing are regulated by limiting the emissions to a percentage of the organic HAP applied each month

. 26 All of th ese standards were set based on the best achieving sources for their respective categories at the time EPA established the standards

. As with the aerospace coating sources, the POM emitted by these sources is expected to be naphthalene and the amount emitted will depend on the coating formulation . Commenter notes that there are currently naphthalene

- free coatings and that some coating sectors have successfully transitioned to naphthalene

- free coating formulas

. The commenter fails to note, however, that the development of these naphthalene/POM free coatings was at least in part in response to the requirement to reduce HAP emissions

. The commenter has not demonstrated that the naphthalene

free products were available at the time the EPA established the standards or that naphthalene

- free coatings are usable alternatives for all coating purposes. If such products were available at the time the EPA promulgated the rule s , the commenter should have brought that information to the Agency’s attention during the comment period s
. The EPA also disagrees with the commenter’s statement that “...EPA has not addressed control methods other than formula changes, and so has not shown that methods to control total organic HAP are the only way to control POM” . The standards discussed above include multiple

21 69 FR 22605. 22 67 FR 72332. 23 74 FR 63508. 24 76 FR 72053. 25 60 FR 64339. 26 61 FR 27134.

### 12

ways to control organic HAP emissions from coating operations such as through requiring covers on processing equipment, emission limits on process equipment, and banning conventional spray guns

. For example , the NESHAP for Wood Furniture Manufacturing Operations promulgated December 7, 1995 (60 FR 62930) banned the use of air spray guns to reduce HAP emissions except in limited circumstances. Further, the risk and technology review of the Wood Furniture Manufacturing Operations NESHAP promulgated November 21, 2011 (FR 72058) states: “This final rule promulgates this ban on conventional spray guns with one modification. Based on comments received, we are retaining an existing provision allowing the use of conventional spray guns when the overspray is routed to a control device. ” The ban on conventional spray guns reduces the amount of overspray , resulting in increased coating application efficiency and a reduction in coating emissions. These reductions apply to POM as well as other HAP.
The commenter is correct in that “surfac e coating operations also capture fugitive emissions using hoods, spray booths, ventilation systems, and other methods [and] they can then route captured pollutants to control devices like thermal oxidizers.” C oating operations can capture emissions and route them to a control device as an alternative to meeting the standards discussed above. The commenter further states that “thermal oxidizers that are set up to reduce total HAP can actually increase POM emissions.” The EPA agrees that incomplete combustion can result in the generation of POM emissions, however, only a few sources collect fugitive emissions and route them to an incineration device, and lower POM emissions are expected because there will be less incomplete combustion of POM if there is a low er nap hthalene content in the coatings. In wood furniture coating there is an exception that facilities may use a conventional spray gun if emissions are routed to an emission control device such as an RTO. The reductions from RTOs are expected to at least comparable to a switch from a conventional spray gun to a more efficient gun.
The EPA has performed a comparative analysis similar to the aerospace source category above by comparing the 1990 nap hthalene baseline inventory for each applicable surface coating category (miscellaneous metal parts and products, plastic parts and products, printing and publishing, and shipbuilding and ship repair) to naphthalene emissions from either the most recent RTR emissions modeling data or , for categories where RTR datasets were not available, the latest publicly released 2005 National

- Scale Air Toxics Assessment (NATA) emissions data. The results are summarized in the table below and show that the MACT standards for these surface coating standards and their corresponding total organic HAP limits have resulted in significant naphthalene reductions and demonstrate that the standards control the POM emissions from these source categories

.

**MACT Source Category Updated 1990**  **112( c** **)(6) Baseline Naphthalene**  **Em issions (TPY)**  **Current**

**Naphthalene Em** **issions (TPY)**  **Estimated**

**Em issions**  **Reductions from MACT**  **standards 1**  **Reductions**

**Realized from 1990 Baseline**  **Em issions** 
Miscellaneous Metal Parts & Products (Surface Coating) 107.0 29.30 2 48% 72.6%
Plastic Parts & Products (Surface Coating) 38.7 0.11 2 80% 99.7% Printing/Publishing (Surface Coating) 28.7 0.04 3 31% 99.9% Shipbuilding and Ship Repair (Surface Coating) 13.6 0.15 3 24% 98.9%

1 FR citation for anticipated emission reductions: Auto & Light Duty Truck

- 69 FR 22618; Miscellaneous Metal Parts

- 69 FR 153 ; Plastic Parts & Products

- 69 FR 20986; Printing/Publishing

- 61 FR 27132; Shi[building

- 60 FR 64330. 2 NATA

- 2005 National

- Scale Air Toxics Assessment Emissions D ata

### 13 3 Risk and Technology Review Emissions Modeling Data
**D. Opposition to**  **the Section 112(d) Standards for**  **Pulp and Paper Kraft and Lime Kilns** 
**Comment:** Commenter 0014 disagrees with the EPA’s claim that “total HAP ” is a surrogate for “ organic HAP ” which is a surrogate for POM from combustion processes at pulp and paper kraft recovery furnaces and lime kilns because the commenter believes that “ Total HAP” is not a pollutant and the EPA has not and cannot establish a valid surrogacy relationship between either of these and POM. The commenter states that the EPA has not shown or explained how using total organic HAP as a surrogate for POM enables it to identify “the best achieving sources” or “what they can achieve” with re spect to POM. Sierra Club , 353 F.3d at 985; 42 U.S.C. § 7412(d)(2)

- (3). Additionally, the commenter states that EPA does not claim or provide data in the docket to show that: POM is “invariably

present” in the other HAP emitted; that the control approaches used to reduce other HAP in coatings reduce POM “indiscriminately”; or that the methods used to control total HAP in coating operating are the only methods that can be used to control POM.
The commenter states that EPA has not shown that using total HAP as a surrogate for POM enables it to identify “the best achieving sources” or “what they can achieve” with respect to POM. Sierra Club , 353 F.3d at 985; 42 U.S.C. § 7412(d)(2)

- (3). Additionally, the commenter states that the EPA does not claim or provide data to show that POM is “invariably present” in the other HAP emitted by these sources or that “effective operation” of the furnaces or kilns will indiscriminately destroy POM along with other HAP

. 27 Further, the commenter states that the same combustion approaches will not be equally effective at controlling POM and other HAP from these sources because “there is no such thing as universal ‘ good combustion’ because different combustion conditions are more propitious for different pollutants will require different conditions of temperature and residence time.” 28 The commenter believes that this is especially true for POM from combustion sources, which is often present in particulate form, while the commenter believes that total HAP and total organic HAP from these sources are mostly gases. The commenter states that sources are free to comply with existing “total HAP” standards by reducing HAP other than POM (such as gaseous HAP) while reducing POM (including POM in particulate form) far less. The commenter be lieves this is likely , as “different combustion conditions are more propitious for different pollutants,” and gaseous pollutants like CO show an inverse relationship with PAHs as combustion conditions are altered. 29 Moreover, the commenter states that on a mass or volume basis POM represents a very small percentage of total HAP emissions from these sources, so these sources can comply with the total HAP limits without significantly reducing their POM emissions. 30 Additionally , the commenter states that the EPA’s surrogacy claim is unlawful and arbitrary because EPA does not claim that “good combustion” is the only method by which sources control POM. The commenter maintains that EPA concedes that end of stack equipment like thermal oxidizers may be employed these sources 31 as an “equivalent control option” 32 yet the commenter claims that the EPA provides no evidence that thermal oxidizers destroy POM or reduce emissions of POM

. The commenter also asserts that thermal oxidizers are known to increase POM a s they

27 See 79 Fed. Reg. 74,679/1. 28 Sahu Comment at 6; See also Mastral et al. (attached as Exhibit B)

. 29 Sahu Comment at 6 and 8

. 30 Compare 63 Fed. Reg. 18,507/3, 66 Fed. Reg. 3,188/3 with Topham Memo (in the docket) at 16

- 18. 31 79 Fed. Reg. 74,679/1 n.31. 32 Id .; see also 63 Fed. Reg. 18,504, 18,508.

### 14

decrease gaseous organic HAP

. 33 Additionally, the commenter states that control devices like activated carbon injection, baghouses or ESPs can be used to reduce POM in particulate form, but are not effective in reducing gaseous organic HAP. 34 Further, the commenters maintain that different fuel inputs produce different quantities and concentrations of POM. 35 The commenter concludes that b ecause the measure that EPA relies on to reduce emissions of total HAP at these sources has not been shown to indiscriminately reduce POM emissions ( and may c ause POM emissions to increase) the surrogacy is unlawful and does not allow the EPA to determine what level of POM reduction is achievable, as required by section 7412(d)(2)

- (3).
The commenter also states that the EPA appears to rely on a claim which the commenter maintains is irrelevant that POM and other HAP are “present together” in these combustion processes. 36 The commenter believes that POM and other sources are “present together” does not show that POM is present in the other pollutants, that the methods for controlling other HAP indiscriminately

control POM, or that the only methods to control POM are the methods used to control total HAP, as required to show a valid surrogacy relationship.
La stly , the commenter believes that the EPA ’s statement that there is no “technical basis for differentiating” be tween POM and other organic HAP 37 provides no support to t he EPA’s claim that it has established a surrogacy relationship between POM and any other pollutant and appears to be an admission that the agency has not done so, because if there is no “technical basis” to differentiate the pollutants, there can be no te chnical basis for establishing a surrogacy relationship between them

. Moreover, the commenter argues that the Clean Air Act requires the EPA to differentiate between different HAPs, including POM , 38 and that section 7412(c)(6) requires the maximum achievable reduction in the pollutants listed in that paragraph, including POM. The commenter states that whether the EPA believes there is a “technical basis . . . to differentiate” is irrelevant. Moreover the commenter argues that EPA’s claim is legally irrelevant and arbitrary because EPA has established a chemical definition of POM and POM can be measured. The commenter then asserts that the EPA’s claim that it cannot differentiate between POM and other pollutants is unsupported and illogical. **Response:** As explained below, this comment goes to the validity of the pulp and paper kraft and lime kilns (pulp and paper) NESHAPs and not to the reasonableness of the EPA’s determination that it has established 112(d)(2)/(d)(4) standards for source categories that comprise at least 90 percent of the aggregate emissions of certain HAP to satisfy its obligations pursuant to section 112( c )(6). The comment is thus outside the scope of this rulemaking and no response is required. In the proposed s ection 112(c)(6) determination , the EPA characterized the section 307(d) rulemakings establishing section 112(d)(2)/(4) standards for pulp and paper and how those standards reduce the section 112(c)(6) HAP (63 FR 18504 and 66 FR 3180)

. The EPA was not reopening the comment period on the surrogate EPA used to regulate HAP emissions from pulp and paper operations or the stringency

of the MACT standards. The EPA is required by the CAA to justify surrogate and MACT standards at the time they are promulgated based on the record at that time. The commenter appears to argue that if EPA were to propose the pulp and paper standards today the commenter would object b ecause they maintain the standards do not represent MACT, based on information available today, and because the surrogate used to regulate HAP when the standards were promulgated is unlawful in

33 Sahu Comments at 3

. 34 Sahu Comments at 6; Standards of Performance for New Stationary Sources and Emission Guidelines for Existing Sources: Large Municipal Waste Combustors, 70 Fed. Reg. 75,348, 75,356 (Dec.19, 2005). 35 Sahu Comments at 6; Mastral et al. 36 79 Fed. Reg. 74,679/1. 37 79 Fed. Reg. 74,678/2. 38 42 U.S.C. § 7412(c)(6).

### 15

its opinion

. The commenter is essentially arguing that EPA must determine anew, based on information not in the record or in many cases even available at the time the standards were issued, that the MACT standards the EPA included in the proposed section 112(c)(6) determination are consistent with the requirements of section 112(d)(2)/(4) and also that the EPA’s proposed section 112(c)(6) determination allows the commenter to raise issues that it should have raised during the comment periods for these pulp and paper rul es. The commenter is incorrect.
The pulp and paper standards were promulgated years ago, and the commenter could have raised its MACT and surrogate issues during the comment period for th e pulp and paper rules based on the information that was available at the time. The commenter could have petitioned the EPA for reconsideration of the rules within 60 days of publication in the Federal Register under section 307(d)(7)(B) if the commenter believed the section 112(d)(2)/(4) standards, including the surrogate standards, applicable to the pulp and paper operations did not comply with the requirements of the CAA. The commenter could have challenged the surrogates and the section 112(d)(2)/(4) standards in the D.C. Circuit. The commenter could have petitioned E PA for rulemaking if it believed that the 1998 listing notice was the first time the public had notice of the fact that EPA was including these pulp and paper rules in the section 112(c)(6) accounting. If the EPA did not respond to that petition in a timely manner, the commenter could have filed a complaint for unreasonable delay in U.S. district court. All of these avenues were available to the commenter and it did not take them. Commenter cannot now assert claims that could have on so many prior occasions been raised to the Agency and the courts. The CAA creates a system that leads to finality of standards and the comments on this issue attempt to upend that process.
The EPA maintains that the section 112(d)(2)/(4) standards applicable to the pulp and paper operations control the HAP emissions, including POM, from th e source categories. Furthermore, the commenter appears to misunderstand the EPA’s approach to setting MACT standards in the Pulp & Paper sector. The subpart S NESHAP covers pulping and papermaking and the subpart MM NESHAP covers chemical recovery combustion sources. The EPA’s approaches recognize the difference between both the HAP pollutants and the equipment in subparts S and MM, and the regulations require control s that were developed for both source categories to complement each other. For clarification, the NESHAP for the pulp and paper making sources (subpart S) requires that all emissions from pulp mill sources (e.g., digesters, evaporators, pulp washers, etc.) be collected and treated with one of four options that the EPA determined were equivalent at the time the rule was promulgated . The four options are 1) reduce total HAP emissions by 98 percent or more by weight, 2) Reduce the total HAP concentration at the outlet of the thermal oxidizer to 20 ppm or less by volume, corrected to 10 percent oxygen on a dry basis, 3) reduce total HAP emissions using a thermal oxidizer designed and operated at a minimum temperature of 871 ° C (1600 ° F) and a minimum residence time of 0.75 seconds, or 4) reduce total HAP emissions using a boiler, lime kiln, or recovery

furnace by

introducing the HAP emission stream with the primary fuel or into the flame zone. In the case of subpart S, “total HAP” emissions mean all HAPs listed in CAA Section 112(b)(1), which includes POM. Table 2 in the NESHAP for chemical recovery combustion sources at pulp mills (subpart MM) states “emission of total gaseous organic HAPs from these sources are regulated as part of the NESHAP for non

- combustion sources at pulp and paper mills.” Therefore, the option for burning HAP emissions from other mill processes utilizing a recovery furnace or a lime kiln results in a minimum reduction of 98 percent of all HAPs, including gaseous organic HAPs and POMs, that enter these units.

### 16

The subpart MM NESHAP requires recovery furnaces and lime kilns to meet a PM limit, as a surrogate for PM HAP, including HAP metals. 

### Any POM generated as a result of incomplete combustion in these units is expected to be controlled using the emi ssion control devices that are already in place for these units . Controls installed as a result of subpart MM have a 99 percent removal efficiency of PM, therefore the subpart MM NESHAP has regulated these sources for POM and reduced their POM emissions. O ther shifts in technology such as the shift from direct contact evaporator recovery furnaces to non

- direct contact evaporator recovery furnaces, and increased evaporator efficiency have further reduced the formation of POMs in the recovery furnace. Shifts to natural gas for lime kiln fuel use has further reduced the formation of POMs in the lime kiln.
The EPA defined the term “total HAP” to include all HAPs listed under section 112(b) , (58 FR 66078). Because the POM at these sources is expected to be generated in the combustion units and emitted in particulate form, the PM HAP standard in subpart MM regulates POM generated in these units. Any POM generated in other pulp mill processes and combusted in these units are required to have 98 percent destruction, therefore they are also regulated by subpart S. G aseous POM and other gaseous HAP are destroyed by combustion in the regulated furnaces and kilns because the combustion temperature is much higher than the degradation temperature for POM. Thermal oxidizers are an alternative to treat regulated gases from subpart S pulp mill processes (e.g., digesters, evaporators, etc.) , The standard also requires the use of equipment that reduce s the PM emissions from these units by 99 percent. In sum, the combustion process in the emission unit is used to destroy gaseous organic HAP from other processes, while the ESP and/or scrubbers are used to remove the POM in particulate form. All POM emissions generated from combustion are expected to be in particulate form , and the required PM control s will indiscriminately control PM . The MACT standards for recovery furnaces and lime kilns requires add

- on control devices for PM HAP, which includes POM in particulate form. Finally , it is unclear to EPA what the commenter’s point is concerning the ability to monitor POM emissions. The CAA does not prohibit EPA from establishing a surrogate for a HAP if the HAP can be measured , and EPA did require monitoring of the surrogate standards

. **E. Opposition to**  **the Section 11**  **2(d)(2) Standards for the Refinery**  **Source Category**
**Com ment:**  Commenter 0014 believes that EPA ’s claim that total organic HAP and total organic carbon, interchangeably, are surrogates for POM from refineries is arbitrary because neither “total organic HAP” nor “total organic carbon” is a pollutant and EPA has not established a valid surrogacy relationship between either of these and POM. The commenter stated that EPA ’s claim that POM is a “constituent” of total organic carbon is a product of EPA having defin ed the surrogate “pollutant” so broadly that any organic compound is a “constituent.” See supra section IV. The commenter states that the EPA has not shown or explained how using total organic HAP and total organic carbon as a surrogate for POM enables it to identify “the best achieving sources” or “what they

can achieve” with respect to POM. Sierra Club , 353 F.3d at 985; 42 U.S.C. § 7412(d)(2)

- (3). Additionally, the commenter states that EPA does not claim or provide data in the docket to show that POM is “invariably present” in any of the other pollutants that refineries can control to comply with this standard

.

### 1 7

The commenter states that the standards for surrogates of POM are satisfied if refineries show a reduction in o rganic emissions using EPA Method 25A. 39 The commenter asserts that Method 25A m easures gaseous organics 40 and POM from combustion processes frequently takes the f orm of a particulate, not a gas

. 41 The commenter states that EPA has not shown or claimed, that reductions in gaseous organic HAP will ensure the maximum achievable reduction in POM in the form of particulates. Further, the commenter states that there are alternative compliance provisions that allow refineries to comply

with a total organic HAP limit in the rule under three scenarios and that EPA has not addressed the alternative compliance provisions or explained how these controls would achieve the maximum achievable reduction in emissions of POM. 42
The commenter also states that the EPA ’s claims that refinery combustion “indiscriminately and effectively destroy[s]” POM alo ng with other organic compounds 43 is arbitrary because the EPA provides no data to support it. The commenter states that the same combustion approaches will not be equally effective at controlling POM and other organic HAP from these sources. According to commenters, “Different combustion conditions actually favor different emissions

– there is no such thing as universal ‘g ood combustion’ because different combustion conditions are more propitious for different pollutants.” The commenter also states that “[S]ince the composition of the surrogates in these various HAP cannot be presumed to be same (different industries, different processes, etc.), requiring their effective destruction (i.e., as required by the respective NESHAP), will require different combustion conditions of temperature and residence time.” 44
The commenter believes that this is especially true for POM from combustion sources , which is often present in particulate form, while total HAP and total organic HAP from these sources are mostly gases. The commenter states that s ources are free to comply with existing “total HAP” standards by

reducing HAP (such as ga seous HAP) while reducing POM (including POM in particulate form) far less. The commenter believes this is likely , as “different combustion conditions are more propitious for different pollutants,” and gaseous pollutants like CO show an inverse relationship with PAHs as co mbustion conditions are altered . Moreover, the commenter maintains that on a mass or volume basis POM represents a very small percentage of total organic HAP emissions from refineries, which means they can comply with the total organic HAP limits without significantly

reducing their POM emissions. 45 Additionally , the commenter states that the EPA’s surrogacy claim is also unlawful and arbitrary because the EPA does not claim that “combustion” is the only metho d by which sources control POM and that, in fact, refineries can employ control devices like activated carbon injection and baghouses or ESPs to reduce POM in particulate form but these are not effective in reducing gaseous organic HAP. 46 The commenter states that refineries can also employ end

- of

- stack equipment like thermal oxidizers to control their organic HAP emissions, but thermal oxidizers are known to increase POM as they decrease gaseous organic HAP. 47 Further , the commenter states, that

39 63 Fed. Reg. 48,890, 48,896. 40 EPA, Method 25A

- Determination of Total Gaseous Organic Concentration Using a Flame Ionization Analyzer available at http://www.epa.gov/ttnemc01/promgate/m

- 25a.pdf. 41 Sahu Comments at 6. 42 Refineries can comply with total organic HAP if they use any of the following: (1) A boiler or process heater with a design heat input capacity of 44 megawatts (MW) or greater; (2) a boiler or process heater in which all vent streams are introduced into the flame zone; or (3) a flare that complies with the requirements for the proper design and operation of flares in 63.11(b) of the NESHAP general provisions. 63 F ed. Reg. 48,896. 43 See 79 Fed. Reg. 74,679/1. 44 Sahu Comments at 6. See also Mastral et al. 45 Compare 60 Fed. Reg. 43,248, 43,246 with Topham Memo (in the docket) at 16

- 18

. 46 Sahu Comments at 6; 70 Fed. Reg. at 75,356. 47 Sahu Comments at 3

.

### 18

different fuel inputs produce different quantities and concentrations of POM

. 48 The commenter believes that EPA’s surrogacy claim is unlawful and arbitrary because methods used by refineries to control the surrogate pollutants do not indiscriminately control POM, or vice versa. Thus, according to the commenter , focusing on total HAP or total organic HAP does not allow the EPA to determine what level of POM reduction is achievable, as required by section 7412(d)(2)

- (3).
The commenter believes that the EPA’ s claim that for these sources there is no “technical reason to distinguish between POM and other organic compounds provides no support that it has established a surrogacy relationship and appears to be an admission that the agency believes it is not possible to define the relationship between these pollutants and determine the correlation between them. Additionally, the commenter states that the EPA has a legal obligation to identify “the best achieving sources, and what they can achieve” with respect to POM

. 49 Moreover, the commenter believes this claim is arbitrary because the “technical reason” to distinguish between POM and other organic HAPs, or organic carbon, is that POM is not present in the other pollutants, but POM responds differently to changes in combustion conditions and f uels, and is reduced by different end

of

- stack control methods. **Response:** As explained below, this comment goes to the validity of the refineries NESHAPs and not to the reasonableness of the EPA’s determination that it has established 112(d)(2)/(d)(4) standards for source categories that comprise at least 90 percent of the aggregate emissions of certain HAP to satisfy its obligations pursuant to 112( c )(6). The comment is thus outside the scope of this rulemaking and no response is required. In the proposed s ection 112(c)(6) determination , the EPA characterized the section 307(d) rulemakings establishing section 112(d)(2)/(4) standards for refineries and how those standards reduce the section 112(c)(6) HAP. The EPA was not reopening the comment period on the surrogate the EPA used to regulate HAP emissions from refinery operations or the stringency of the MACT standards. The EPA is required by the CAA to justify surrogate and MACT standards at the time they are promulgated based on the record at that time. Th e commenter appears to argue that if the EPA were to propose the refinery standards today the commenter would object because they maintain the standards do not represent MACT, based on information available today, and because the surrogate used to regulate HAP when the standards were promulgated is unlawful in its opinion. The commenter is essentially arguing that the EPA must determine anew, based on information not in the record or in many cases even available at the time the standards were issued, that the MACT standards the EPA included in the proposed section 112(c)(6) determination are consistent with the requirements of section 112(d)(2)/(4) and also that the EPA’s proposed section 112(c)(6) determination allows the commenter to raise issues that it should have raised during the comment periods for the refinery rules. The commenter is incorrect.
The refinery standards were promulgated years ago, and the commenter could have raised its MACT and surrogate issues during the comment period for the refinery rules based on the information that was available at the time. The commenter could have petitioned the EPA for reconsideration of the rules within 60 days of publication in the Federal Register under section 307(d)(7)(B) if the commenter believed the section 112(d)(2)/(4) standards, including the surrogate standards, applicable to the refinery operations did not comply with the requirements of the CAA. The commenter could have challenged the surrogates and the section 112(d)(2)/(4) standards in the D.C. Circuit. The commenter could have petitioned the EPA for rulemaking if it believed that the 1998 listing notice was the first time the public had notice of the fact that the EPA was including

48 Id . at 6; Mastral et al

. 49 Sierra Club, 353 F.3d at 985

.

### 19

these refinery rules in the section 112(c)(6) accounting. If the EPA did not respond to that petition in a timely manner, the commenter could have filed a complaint for unreasonable delay in U.S. district court. All of these avenues were available to the commenter and it did not take them. The c ommenter cannot no w assert claims that could have , on so many prior occasions , been raised to the Agency and the courts. The CAA creates a system that leads to finality of standards and the comments on this issue attempt to upend that process.
The EPA maintains that the s ection 112(d)(2)/(4) standards applicable to the refinery operations control the HAP emissions, including POM, from the source category
. The EPA’s approach to setting MACT standards in the refinery sector spans two MACT standards, Subpart UUU which covers cataly tic cracking units, sulfur recovery units, and catalytic reforming units, and Subpart CC which covers all other sources at refineries. Each standard has a number of requirements associated with various emission source types. For clarification, POM f

rom refineries is attributed to a number of sources, including process vents, equipment leaks, storage tanks, and catalytic cracker regenerator emissions. Of the approximately

1000 tons of POM reported from refineries in the pre

- MACT baseline, roughly 300 tons (the largest single source of emissions of POM) were attributed to FCCU regenerator emissions, in which coke is burned off catalyst particles in a continuous process to reactivate the catalyst. Uncontrolled regenerator flue gases contain a high amount of CO along with other unburned hydrocarbons (including POM compounds.) 50 Refinery MACT Subpart UUU uses CO as a surrogate for organic HAP and establishes an emission limit of 500 ppmv CO (dry basis). Some FCCU, referred to as complete

- combustion FCCU, e mploy excess oxygen in the FCCU regenerator and are able to meet this emission limit without the need for a post

- combustion device. Other FCCU, referred to as partial

- combustion FCCU, do not supply enough air/oxygen for complete combustion of the coke to C O 2 and, therefore, produce a significant quantity

of CO in the regenerator exhaust. Partial

- combustion FCCU are typically followed by a post

- combustion unit, commonly referred to as a CO boiler, to burn the CO in the regenerator exhaust in order to meet the 500 ppmv CO limit (and to recover useful heat from the exhaust stream). Organic HAP in these units are primarily controlled through combustion and complete combustion is indicated by CO concentrations at or below 500 ppmv. For this reason, the CO limit ensures that organic HAP, including POM , are reduced by the refineries standards

. Further, FCCU are also subject to PM limits under Refinery MACT Subpart UUU

. POM not completely

combusted in the combustion process will absorb onto particulates leaving the regenerator. The MACT particulate emission limit is aimed at reducing small particulates and is ty pically met by add

- on controls such as ESPs and wet gas scrubbers; larger diameter particulates are captured by

cyclones in the regenerator and returned to the process. Therefore, the PM standard addresses POM that are adsorbed onto PM and controlled by PM control devices. Hence, the refineries standards reduce both gaseous POM as well as particulate

- bound POM. Other potential sources of POM at refineries include equipment leaks, storage vessels, and miscellaneous process vents. These sources are regulated by MACT Subpart CC and naphthalene is specifically

included in the list of HAP regulated by Subpart CC in Table 1 of Su bpart CC. One of the largest sources of HAP emissions regulated by Subpart CC is emissions from leaking components such as pipes, valves, and connectors. Evidence of leaks is found through work practice standards

50 Locating and Estimating Sources of POM, section 4.5.1, page 4

- 283

### 20

that require the use of Method 21 leak dete ction or audio, visual or olfactory indications of leaks. Regardless of how these are found, the MACT requires that leaks be repaired. Therefore, once a component is found to be leaking and repaired, the emissions are controlled, and any amount of POM in the process streams that are released are abated to the same level as other process stream components. Therefore, we maintain that control of equipment leaks will reduce org anic HAP, including POM , once the leak is fixed

. Storage tanks are another potenti al source of POM emissions. Tank controls in MACT Subpart CC include use of floating roofs or routing the vents to control devices that reduce total organic HAP by

at least 95 percent . The majority of storage vessels in refineries are controlled by the use of floating roof tanks

. If POM is contained in process liquids that are stored in floating roof tanks, then these emissions are controlled like other HAP contained in the process fluids.
**F. Opposition to**  **the Section 112(d)(2) Standards for**  **Industrial Organic Chemicals**  **Manufacturing and Naphthalene Productions**
**Comment :**  Commenter 0014 disagrees with the EPA ’s claim that total organic HAP is a surrogate for POM from industrial organic chemicals manufacturing and naphthalene production51 because according to the commenter “total organic HAP” is not a pollutant and the EPA has not and cannot establish a valid surrogacy relationship between total organic HAP and POM

. The commenter also states that the EPA has not shown or explained how using total organic HAP as a surrogate for POM enables it to identify “the best achieving sources” or “what they can achieve” with respect to POM. Sierra Club , 353 F.3d at 985; 42 U.S.C. § 7412(d)(2)

- (3).
The commenter believes that the EPA’s claim that combustion controls in the HON rule have “essentially

the same performance regardless of the individual compound” is arbitrary because the EPA has provided no data or analysis to support it. 52 The commenter states that the same combustion approaches will not be equally effective at controlling POM and other organic HAP from these sources because there is no such thing as universal ‘good combustion’ because different combustion conditions are more propitious for dif ferent pollutants and require different combustion conditions of temperature and residence time. 53 The commenter notes that this is especially true for POM, because POM from combustion sources is often present in particulate form, while total HAP and total organic HAP from these sources are mostly gases. The commenter then concludes that s ources are free to comply with the “total organic HAP” standards by reducing organic HAP (such as gaseous HAP) while reducing POM (including POM in particulate form) far le ss and notes that gaseous pollutants like CO show an inverse relationship with PAHs as combustion conditions are altered. 54 Additionally , the commenter believes the EPA’s surrogacy claim is unlawful and arbitrary because the EPA does not claim that “combu stion” is the only method by which sources control POM and in fact these sources can employ control devices like activated carbon injection and baghouses or ESPs that are not effective at reducing gaseous organic HAP , but can reduce POM in particulate form

. 55 The commenter maintains that these sources can also employ end

- of

- stack equipment like thermal oxidizers to control their organic HAP emissions, but again notes that thermal

51 79 Fed. Reg. 74,679/1

- 2

. 52 79 Fed. Reg. 74,679/2

. 53 Sahu Comments at 6. See also Mastral et al. 54 Sahu Comments at 8. 55 Sahu Comments at 6; 70 Fed. Reg. at 75,356.

### 21

oxidizers are known to increase POM as they decrease gaseous organic HAP. 56 The commenter states that the EPA has acknowledged that control devices used by sources covered by the HON rule yield

“higher level[s] of control for one particular HAP than for another.” 57 Further, the commenter states that different fuel inputs produce different quantities and concentrations of POM. 58 For these reasons, the commenter concludes that because the methods used to control the surrogate pollutants do not indiscriminately control POM, focusing on total organic HAP does not allow the EPA to determine what level of POM reduction is achievable ( as required by section 7412(d)(2)

- (3)) making the EPA’s surrogacy claim is unlawful and arbitrary in the commenter’s opinion

. The commenter states that the EPA claim s that it cannot differentiate between POM and other pollutants and that such a claim is unsupported and illogical because the EPA has established a chemical definition of POM and does not deny that POM can be measured. The commenter argues that EPA claim s that POM from these categories cannot be distinguished from other organic HAP and that such claim is contradicted by the fact that the EPA set a separate POM limit for certain processes at Industrial Organic Chemicals Manufacturing and Naphthalene production sources

— specifically , wastewater. The commenter notes that EPA determined that the maximum achievable reduction in naphthalene in the wastewater released by these operations is 99 percent, and required that reduction by promulgating a separate POM limit for POM in wastewater because “different HAP compounds have different physical properties when mixed with water.” 59 Commenter maintains that is equally true of POM in combustion processes and the commenter believes that EPA’s decision to set a standard for POM in wastewater but not in combustion processes is arbitrary.
La stly, the commenter argues that the EPA ’s claim that there is no “technical reason to make distinctions among various organic HAP” 60 is irrelevant because whether there is a “technical reason” to distinguish is not the issue . The commenter states that the EPA has a legal obligation to do so by identifying “the best achieving sources, and what they can achieve” with respect to POM. Sierra Club , 353 F.3d at 985. Moreover, the commenter argues that the lack of a “technical reason” to distinguish between POM and other organic HAPs provides no support to the EPA’s claim that there is a surrogacy relationship between these pollutants. To the contrary, the commenter believes it appears to be an admission that the agency believes it is not possible to define the relationship between these pollutants and determine the correlation between them, if any. The commenter states that the “technical reason” to distinguish between POM and other organic HAPs is that POM is not present in the other pollutants, POM responds differently to changes in combustion conditions and fuels, and POM is reduced by different end

- of

- stack control methods. **Response:** As explained below, this comment goes to the validity of the different industrial organic chemical manufacturing and naphthalene production (collectively “organic chemical manufacturing”) NESHAPs and not to the reasonableness of the EPA’s determination that it has established 112(d)(2)/(d)(4) standards for source categories that comprise at least 90 percent of the aggregate emissions of certain HAP to satisfy its obligations pursuant to 1 12(c )(6). The comment is thus outside the scope of this rulemaking and no response is required. In the proposed section 112(c)(6) determination, the EPA characterized the section 307(d) rulemakings establishing section 112(d)(2)/(4) standards for the organic chemical manufacturing source categories and how those standards reduce the section 112(c)(6) HAP. The EPA was not reopening the comment period on the

56 Sahu Comments at 3. 57 59 Fed. Reg. 19,402, 19,420. 58 Sahu Comments at 6; Mastral et al. 59 79 Fed. Reg. 74,679/2. 60 79 Fed. Reg. 74,679/2.

### 22

surrogate s the EPA used to regulate HAP emissions from organic chemical manufacturing operations or the stringency of thos e MACT standards. The EPA is required by the CAA to justify surrogate and MA CT standards at the time they are promulgated based on the record at that time. The commenter appears to argue that if the EPA were to propose the organic chemical manufacturing standards today the commenter would object because they maintain the standards do not represent MACT, based on information available today, and because the surrogate used to regulate the HAP when the standards were promulgated is unlawful in its opinion. The commenter is essentially arguing that the EPA must determine anew, based on information not in the record or in many cases even available at the time the standards were issued, that the MACT standards the EPA included in the proposed section 112(c)(6) determination are consistent with the requirements of section 112(d)(2)/(4) and also that the EPA’s proposed section 112(c)(6) determination allows the commenter to raise issues that it should have raised during the comment periods for the organic chemical manufacturing rules. The commenter is incorrect.
The organic chemical manufacturing standards were promulgated years ago, and the commenter could have raised its MACT and surrogate issues during the comment period s for the different organic chemical manufacturing rules based on the information that was avail able at the time. The commenter could have petitioned the EPA for reconsideration of the rules within 60 days of publication in the Federal Register under section 307(d)(7)(B) if the commenter believed the section 112(d)(2)/(4) standards, including the sur rogate standards, applicable to the organic chemical manufacturing operations did not comply with the requirements of the CAA. The commenter could have challenged the surrogates and the section 112(d)(2)/(4) standards in the D.C. Circuit. The commenter could have petitioned the EPA for rulemaking if it believed that the 1998 listing notice was the first time the public had notice of the fact that the EPA was including these organic chemical manufacturing rules in the section 112(c)(6) accounting. If the EPA did not respond to that petition in a timely manner, the commenter could have filed a complaint for unreasonable delay in U.S. district court. All of these avenues were available to the commenter and it did not take them. Commenter cannot now assert claim s that could have on so many prior occasions been raised to the Agency and the courts. The CAA creates a system that leads to finality of standards and the comments on this issue attempt to upend that process.
The EPA maintains that the section 112(d)(2)/(4) standards applicable to the organic chemical manufacturing operations control the HAP emissions, including POM, from the source categories

. MACT standards for industrial organic chemical manufacturing and naphthalene production source categories are s et forth in Subparts F, G, H, and I. Subpart F includes general standards; Subpart G includes process vents, storage vessels, transfer operations, and wastewater; and Subparts H and I include equipment leaks. Each Subpart has requirements for different emission sources. Process vents are potential sources of POM. These sources are regulated by Subpart G. Air emissions from process vents are controlled by 1) reducing emissions of non

- halogenated organic HAP using a flare, 2) reducing emissions of total organic HAP by 98 weight

-percent or to a concentration of 20 parts per million by volume, whichever is less stringent, or 3) achieving and maintaining a TRE index value greater than 1.0 at the outlet of the final recovery device, or prior to release of the vent stream to the atmosphere if no rec overy device is present. The control of total organic HAP was shown to be uniformly achievable by well

- designed and operated combustion devices based on test data using the most difficult VOC compounds to combust, which included

### 23

several organic HAPs. 61 In January 1997, the EPA clarified Table 2 to list 21 specific chemicals that are to be regulated as POM

. The controls used to comply with the total organic HAP requirement also control the identified POM

.

Storage vessels are another potential source of POM emissions. Storage vessel controls in Subpart G include 1) an internal floating roof with proper seals and fittings, 2) an external floating roof with proper seals and fittings, 3) an external floating roof converted to an internal floating roof with prop er seals and fittings, or 4) a closed vent system with a 95

-percent efficient control device. If POM is contained in process liquid stored in floating roof tanks or closed vent systems, then POM emissions are controlled like other HAP contained in the proc ess liquids. Another potential source of POM emissions are transfer operations. Transfer operation controls in Subpart G include 1) using a control device to reduce emissions of total organic hazardous air pollutants by 98 weight

-percent or to an exit concentration of 20 parts per million by volume, whichever is less stringent, 2) reducing emissions of non

- halogenated organic HAP using a flare, 3) reducing emissions of organic hazardous air pollutants using a vapor balancing system designed and operated to collect organic hazardous air pollutants vapors displaced from tank trucks or railcars during loading; and to route the collected hazardous air pollutants vapors to the storage vessel from which the liquid being loaded originated, or to another storage vessel connected to a common header, or to compress and route to a process collected hazardous air pollutants vapors, or 4) routing emissions of organic hazardous air pollutants to a fuel system or to a process where the organic hazardous air pollutants in the emissions shall predominantly meet one of, or a combination of, (i) recycled and/or consumed in the same manner as a material that fulfills the same function in that process; (ii) transformed by chemical reaction into materials that are not organic hazardous air pollutants; (iii) incorporated into a product; and/or (iv) recovered. If POM is contained in the liquid being transferred, then POM emissions are controlled like other HAP contained in the liquid. Equipment leaks are another potential source of POM emissions which are regulated in Subparts H and I. Evidence of leaks is found through work practice standards that require the use of Method 21 leak detection or audio, visual, or olfactory indications of leaks. Regardless of how leaks are detected, Su

bparts H and I require that leaks be repaired. Therefore, once a component is found to be leaking and repaired it must be fixed so that the emissions are controlled, and all HAP, including POM , in the process streams that are released are abated. For this reason, the requirements for equipment leaks reduce organic HAP, including POM , from leaking processes
. **G. Opposition to**  **the Section 112(d)(2) Standards for Asphalt Roofing** 
**Comment:** Commenter 0014 takes issue with the EPA’s claim that total hydrocarbons (THC) are a surrogate for POM fro m asphalt roofing manufacturing 62 because according to the commenter “THC” is not a pollutant and the EPA has not established a valid surrogacy relationship between THCs and POM.
The commenter believes that the E PA has not shown that using THC as a surrogate for POM enables it to identify “the best achieving sources” or “what they can achieve” with respect to POM. Sierra Club , 353 F.3d at 985; 42 U.S.C. § 7412(d)(2)

- (3). The commenter also states that the EPA’s

61 59 Fed Reg 19402 62 79 Fed. Reg. 74,679/3

.

### 24

claim that emissions of POM are “controlled equally” with THCs 63 is arbitrary because no record data or analysis supports it and notes that the EPA set THC standards as a surrogate for gaseous HAP, but POM is frequently emitted from combustion processes as a par ticle, not a gas. The commenter states that the EPA does not address end of stack controls, which the commenter states will not control POM and THCs “equally.” The commenter believes that control devices like activated carbon injection and baghouses or ES Ps can reduce POM in particulate form, but will need not be employed to meet a standard for gaseous organic HAP. 64 The commenter, as previously mentioned, states that thermal oxidizers control organic HAP emissions, but are known to increase POM as they decrease gaseous organic HAP and as a result, focusing on THCs does not allow the EPA to determine what level of POM reduction achievable, as required by section 7412(d)(2)

- (3) for asphalt roofing sources. 65 Finally , the commenter states that the EPA’s claim that POM are “effectively controlled” by standards for THCs 66 does not say what degree of control must be required for control to be “effective,” and therefore is not the same as a claim that POM are controlled to the maximum extent achievable, as required by § 7412(d)(2)

- (3). The commenter concludes stating that EPA’s claim that there was no technical reason to differentiate between POM and total hydrocarbons 67 is unlawful and arbitrary for the reasons given with respect to other categories. **Response:** As e xplained below, this comment goes to the validity of the asphalt roofing manufacturing NESHAP and not to the reasonableness of the EPA’s determination that it has established 112(d)(2)/(d)(4) standards for source categories that comprise at least 90 percen t of the aggregate emissions of certain HAP to satisfy its obligations pursuant to 112( c )(6). The comment is thus outside the scope of this rulemaking and no response is required. In the proposed section 112(c)(6) determination, the EPA characterized the section 307(d) rulemaking establishing section 112(d)(2)/(4) standards for asphalt roofing manufacturing and how those standards reduce the section 112(c)(6) HAP. The EPA was not reopening the comment period on the surrogate the EPA u sed to regulate HAP emissions from asphalt roofing operations or the stringency of the MACT standards. The EPA is required by the CAA to justify surrogate and MACT standards at the time they are promulgated based on the record at that time. The commenter appears to argue that if the EPA were to propose the asphalt roo f ing s tandards today

the commenter would object because they maintain the standards do not represent MACT, based on information available today, and because the surrogate used to regulate HAP when the standards were promulgated is unlawful in its opinion. The commenter is essentially arguing that the EPA must determine anew, based on information not in the record or in many cases even available at the time the standards were issued, that the MAC T standards the EPA included in the proposed section 112(c)(6) determination are consistent with the requirements of section 112(d)(2)/(4) and also that the EPA’s proposed section 112(c)(6) determination allows the commenter to raise issues that it should have raised during the comment period for the asphalt roofing rule. The commenter is incorrect.
The asphalt roofing standards were promulgated years ago, and the commenter could have raised its MACT and surrogate issues during the comment period for the asphalt roofing rule based on the information that was available at the time. The commenter could have petitioned the EPA for

63 79 Fed. Reg. 74,678/2. 64 Sahu Comments at 6; 70 Fed. Reg. at 75,356. 65 Sahu Comments at 3

. 66 79 Fed. Reg. 74,678/2. 67 79 Fed. Reg. 74,679/3.

### 25

reconsideration of the rule within 60 days of publication in the Federal Register under section 307(d)(7)(B) if the commenter believed the section 112(d)(2)/(4) standards, including the surrogate standard, applicable to the asphalt roofing operations did not comply with the requirements of the CAA. The commenter could have challenged the surrogate and the section 112(d)(2)/(4) standards in the D.C. Circuit. The commenter could have petitioned the EPA for rulemaking if it believed that the 1998 listing notice was the first time the public had notice of the fact that the EPA was including the asphalt roofing rule in the section 112(c)(6) accounting. If the EPA did not respond to that petition in a timely manner, the commenter could have filed a complaint for unreasonable delay in U.S. district court. All of these avenues were available to the commenter and it did not take them. Commenter cannot now assert claims that could have on so many prior occasions been raised to the Agency and the courts. The CAA creates a system that leads to finality of standards and the comments on this issue attempt to upend that process.
The EPA maintains that the section 112(d)(2)/(4) standards applicable to the asphalt roofing operations control the HAP emissions, including POM, from the source category. The NESHAP for Asphalt Roofing requires that gaseous HAP emissions be collected and treated with one of six options 1) Reduce total hydrocarbon mass emissions by 95 percent, or to a concentration of 20 ppmv, on a dry basis corrected to 3 percent oxygen , 2) Route the emissions to a combustion device achieving a combustion efficiency of 99.5 percent , 3) Route the emissions to a combustion device that does not use auxiliar

y fuel achieving a total hydrocarbon (THC) destruction efficiency of 95.8 percent , 4) Route the emissions to a boiler or process heater with a design heat input capacity of 44 megawatts (MW) or greater , 5) Introduce the emissions into the flame zone of a boiler or process heater or 6) Route emissions to a flare meeting the requirements of § 63.11(b).
POM is a subset of total THC and a reduction is total THC will reduce POM emissions . In addition , the ty

pes of controls necessary to achieve the emissions limits shown above would necessarily include some type of combustion device, and those devices will achieve reductions in POM emissions

. **H. Opposition to**  **the Section 112(d)(2) Standards for RICE** 
**Comment:** Commenter 0014 disagrees with the EPA ’s claim that CO is a surrogate for POM from Reciprocating Internal Combustion Engines (RICE) because the commenter claims that the EPA has provided no data or analysis to support that combustion practices will control both CO and POM. The commenter also states that the EPA does not claim or provide data to show that POM is “invariably

present” in CO or that POM emi ssions consistently increase or decrease with CO. In fact, the commenter believes that while CO emissions decrease as more oxygen is provided to a combustion process, PAH emissions have been shown to increase. 68 Further, the commenter states that these pollutants are controlled by different metho ds and asserts that POM from RICE is often a particulate and can thus be controlled by particulate filters or catalytic oxidizers, unlike CO. Therefore, the commenter conc ludes that focusing on CO does not enable the EPA to identify “the best achieving sources” or “what they can achieve” with respect to POM. Sierra Club , 353 F.3d at 985; 42 U.S.C. §7412(d)(2)

- (3). **Response:** As explained below, this comment goes to the vali dity of the RICE standards and not to the reasonableness of the EPA’s determination that it has established 112(d)(2)/(d)(4) standards for source categories that comprise at least 90 percent of the aggregate emissions of certain

68 Sahu Comments at 7

- 8.

### 26

HAP to satisfy its obligations pursuant to 1 12(c )(6). The comment is thus outside the scope of this rulemaking and no response is required. In the proposed section 112(c)(6) determination, the EPA characterized the section 307(d) rulemaking establishing section 112(d)(2)/(4) standards for the RICE source category and how those standards reduce the section 112(c)(6) HAP. The EPA was not reopening the comment period on the surrogate the EPA used to regulate HAP emissions from RICE or the stringency of the MACT standards. The EP A is required by the CAA to justify surrogate and MACT standards at the time they are promulgated based on the record at that time. The commenter appears to argue that if the EPA were to propose the RICE standards today the commenter would object because they maintain the standards do not represent MACT, based on information available today , and because the surrogate used to regulate HAP when the standards were promulgated is unlawful in its opinion. The commenter is essentially arguing that EPA must determine anew, based on information not in the record or in many cases even available at the time the standards were issued, that the MACT standards EPA included in the proposed section 112(c)(6) determination are consistent with the requirements of section 112 (d)(2)/(4) and also that EPA’s proposed section 112(c)(6) determination allows the commenter to raise issues that it should have raised during the comment period for the RICE rule. The commenter is incorrect. The above comments question the validity of the RICE standards in regulating POM. In the 1998 notice, the EPA included this category among those counted towards meeting the 90 percent requirement for POM under section 112(c)(6). The EPA thereafter promulgated the standards for this category

. The commenter could have raised its MACT and surrogate issues during the comment period for the RICE rule based on the information that was available at the time. The commenter could have petitioned the EPA for reconsideration of the rule within 60 days of public ation in the Federal Register under section 307(d)(7)(B) if the commenter believed the section 112(d)(2)/(4) standards, including the surrogate standard, applicable to the RICE did not comply with the requirements of the CAA. The commenter could have chall enged the surrogate and the section 112(d)(2)/(4) standards in the D.C. Circuit. All of these avenues were available to the commenter and it did not take them. Commenter cannot now assert claims that could have on so many prior occasions been raised to the Agency and the courts. The CAA creates a system that leads to finality of standards and the comments on this issue attempt to upend that process.
The EPA maintains that the section 112(d)(2)/(4) standards applicable to RICE control the HAP emissions, including POM and PAH , from the source category. Reductions in CO emissions will reduce organic HAP emissions, including POM and PAH . The EPA maintains that reductions in CO are indicative of reductions in organic HAP emissions from stationary RICE, which include POM and PAH

. 69 , 70

**I. Opposition to**  **the Section 112(d)(2) Standards for Pesticide Production** 
**Comment:** Commenter 0014 takes issue with the EPA’s claim that the pesticide productions standards satisf

y the Agency ’s obligations under §7412(c)(6) with respect to one half of the nationwide emissions of HCB. The commenter maintains that for this rule the EPA did not claim to be setting standards for Hexachlorobenzene ( HCB ) , either directly or through surrogates and set only

69 67 Fed. Reg. at 77 , 833, 77 , 839. 70 Memorandum from Melanie King, Energy Strategies Group, to Docket Number EPA

- HQ

- OAR

- 2008

- 0708. Response to Public Comments on Proposed National Emission Standards for Hazardous Air Pollutants for Existing Stationary Reciprocating I nternal Combustion Engines Located at Area Sources of Hazardous Air Pollutant Emissions or Have a Site Rating Less Than or Equal to 500 Brake HP Located at Major Sources of Hazardous Air Pollutant Emissions . February 17, 2010. Document Number EPA

- HQ

- OAR

- 2008

- 0708

- 0367, p. 112.

### 27

a standard for organic HAP 71 and the commenter argues that the EPA provided no record basis to support a surrogacy relationship between organic HAP and HCB 

### in either that rulemaking or in its current proposal

. The commenter notes that the pesticide production rule indicates that, to meet that rule, sources will use thermal incineration devices 72 but notes that the EPA provides no evidence that incinerators destroy

HCB or reduce emissions of HCB for any rule. The commenter emphasizes that the Agency

fo r Toxic Substances and Disease Registry (ATSDR) has indicated that the incineration can create HCB 73 and theref ore concludes that for this rule , since the measure that the EPA relies on to reduce emissions of organic HAP has not been shown to reduce HCB emi ssions, and may cause HCB emissions to increase, organic HAP is not a valid surrogate for HCB emissions from this category and does not identify

the best performing sources with respect to HCB.
The commenter also states that the EPA’s claim that organic HAP is a surrogate for HCB emissions from pesticide manufacturers ignores that manufacturers of different pesticide products emit very different levels of HCB. For example the commenter states that manufacturers of Dacthal, emitted approximately 677 kg/year of HCB in the mid

- 1990s while manufacturers of simazine emitted less than 2 kg/year. Thus, the commenter believes lower emissions of HCB can be achieved based on the products that facilities choose to make and as a result pesticide manufacturers’ emissio ns of organic HAP do not identify the best performers with respect to HCB, what those sources are achieving with respect to HCB, or what can be achieved with respect to HCB through the full range of reduction measures that the Clean Air Act requires the EP A to consider when it sets standards under § 7412(d). For this reason as well, the commenter believes organic HAP is not a valid surrogate.
La stly, the commenter states that there is no evidence in the record that the EPA made any effort to evaluate pestic ide manufacturers’ actual HCB emissions or set standards for these emissions either directly

or through a surrogate because the EPA was not purporting to set standards for HCB, either directly

or through a surrogate. The commenter believes the agency’s attempt to make a surrogate claim is entirely conclusory, unsupported by any record evidence, and at odds with evidence that organic HAP is not a valid surrogate for HCB emissions from pesticide manufacturers. **Response:** As explained below, this comment goes to the validity of the pesticide manufacturing NESHAPs and not to the reasonableness of the EPA’s determination that it has established 112(d)(2)/(d)(4) standards for source categories that comprise at least 90 percent of the aggregate emissions of certain HAP to satisfy its obligations pursuant to 112( c )(6). The comment is thus outside the scope of this rulemaking and no response is required. In the proposed section 112(c)(6) determination, the EPA characterized the section 307(d) rulemaking establishing s ection 112(d)(2)/(4) standards for pesticide manufacturing and how those standards reduce the section 112(c)(6) HAP. The EPA was not reopening the comment period on the surrogate the EPA used to regulate HAP emissions from pesticide manufacturers or the stringency of the MACT standards. The EPA is required by the CAA to justify surrogate and MACT standards at the time they are promulgated based on the record at that time. The commenter appears to argue that if the EPA were to propose the pesticide manufacturing standards today the commenter would object because they maintain the standards do not represent MACT, based on information available today, and because the surrogate used to regulate HAP when the standards were promulgated is unlawf ul in its opinion. The commenter is essentially arguing that the EPA must determine anew, based on information not

71 64 Fed. Reg. 33,550, 33,554

. 72 64 Fed. Reg. at 33585. 73 ATSDR Article at 235

- 238

.

### 28

in the record or in many cases even available at the time the standards were issued, that the MACT standards the EPA included in the proposed section 112(c)(6) determination are consistent with the requirements of section 112(d)(2)/(4) and also that the EPA’s proposed section 112(c)(6) determination allows the commenter to raise issues that it should have raised during the comment period for th e pesticide manufacturing rule. The commenter is incorrect. The above comments question the validity of the MACT standards for pesticide active ingredient production in regulating POM. In the 1998 notice, the EPA included this category among those count ed towards meeting the 90 percent requirement for POM under section 112(c)(6). The EPA subsequently

promulgated the standards for this category in 1999 , and the commenter could have raised its MACT and surrogate issues during the comment period for the pes ticide manufacturing rule based on the information that was available at the time. The commenter could have petitioned the EPA for reconsideration of the rule within 60 days of publication in the Federal Register under section 307(d)(7)(B) if the commenter believed the section 112(d)(2)/(4) standards, including the surrogate standard, applicable to the pesticide manufacturing operations did not comply with the requirements of the CAA. The commenter could have challenged the surrogate and the section 112(d)( 2)/(4) standards in the D.C. Circuit. All of these avenues were available to the commenter and it did not take them. Commenter cannot now assert claims that could have on so many prior occasions been raised to the Agency and the courts. The CAA creates a s ystem that leads to finality of standards and the comments on this issue attempt to upend that process.
The EPA maintains that the section 112(d)(2)/(4) standards applicable to the pesticide manufacturing operations control the organic HAP emissions, including HCB , from the source category

. The potential largest source of HCB air emissions in pesticide production is as a byproduct impurity in process vents. Process vents are regulated in Subpart MMM. The MACT standards for existing sources are 1) processes having uncontrolled organic HAP emissions greater than or equal to 0.15 megagrams per year (Mg/yr), must reduce organic HAP emissions by

90% per process or to outlet organic HAP concentration of less than or equal to 20 ppmv TOC or 2) individual process vents meeting flow and mass emissions criteria that have gaseous organic HAP emissions controlled to less than 90% on or after November 10, 1007, must reduce gaseous organic HAP emissions by 98% per vent or to outlet organic HAP conc entration of less than or equal to 20 ppmv TOC. In addition, processes that have uncontrolled hydrogen chloride (HCl) and chlorine emissions greater than or equal to 6.8 Mg/yr must reduce HCl and chlorine emissions by 94% per process or to outlet HCl and c hlorine concentration of less than or equal to 20 ppmv. The MACT standard for new sources is processes having uncontrolled organic HAP emissions greater than or equal to 0.15 Mg/yr, must reduce organic HAP emissions by 98% per process or to outlet organic HAP concentration of less than or equal to 20 ppmv TOC. In addition, processes that have uncontrolled HCl and chlorine emissions greater than or equal to 6.8 Mg/yr, but less than 191 Mg/yr must reduce HCl and chlorine emissions by 94% per process or to outlet HCl and chlorine concentration of less than or equal to 20 ppmv. If the uncontrolled HCl and chlorine emissions are greater than 191 Mg/yr, must reduce HCl and chlorine emissions by 99% per process or to outlet HCl and chlorine concentration of less than or equal to 20 ppmv. Thus, organic HAP and chlorinated emissions, including hexachlorobenzene, are controlled by the section 112(d)(2) requirements applicable to pesticide production.
**J. Opposition to**  **the Section 112(d)(2) Standards for**  **Chlorinated Solvents**  **Production**

### 29

**Comment:** Commenter 0014 disagrees with the EPA’s claim that its section 11 2 rule for the sy nthetic organic chemical manufacturing industry (SOCMI) and certain other chemical manufacturers (the hazardous organic NESHAP or “HON rule”) sa tisfies its obligations under section 1 12(c)(6) with respect to approximately one half of the nationwide emissions of HCB. In the HON rule, the EPA acknowledged that HCB is emitted by chlorinated solvent production (a chemical manufacturing process) but di d not purport to set standards for HCB. The commenter maintains that the EPA’s standards for organic HAP does not include HCB.
The commenter states that the EPA has provided no record basis

– either in that rulemaking or in its current proposal

– to supp ort any kind of reasonable surrogacy relationship between organic HAP and HCB and notes that the EPA’s organic HAP standard was based on the alleged performance of a single “reference control technology,” a thermal incineration unit. 74 Yet the EPA provides no evidence that incinerators destroy HCB or reduce emissions of HCB at all. The commenter goes on to say that the ATSDR has indicated that incineration can create HCB. 75 The commenter then concludes that b ecause the measure that the EPA relies on to reduce emission s of organic HAP at chlorinated solvent manufacturing facilities has not been shown to reduce HCB emissions, and may cause HCB emissions to increase, organic HAP is not a valid surrog ate for HCB emissions from this category

. The commenter states that the EPA indicated in the HON rule that regulated sources deploy a wide variety of control devices other than incinerators, including inter alia absorbers, carbon absorbers, and condensers. 76 Also according to the commenter, other such sources use fabri c filters, scrubbers, carbon injection, or some combination of these technologies. Since these technologies, unlike incineration, may reduce HCB emissions, the commenter believes that the EPA’s organic HAP standard

– which reflects only the level of organi c HAP that the EPA associates with the use of incinerators

– does not identify the best performing sources with respect to HCB, what those sources are achieving with respect to HCB, or what HCB level can be achieved by chlorinated solvent production facilities through the use of control technologies other than incinerators. For this reason as well the commenter states organic HAP is not a valid surrogate for HCB. Another reason the commenter gives as to why organic HAP is not a valid surrogate for HCB is that all chlorinated solvent manufacturers produce different product and as a result emit different levels of HCB. The commenter states that the EPA’s organic HAP standard does not identify these sources, what these sources are achieving with respect to HCB , and what HCB levels can be achieved by chlorinated solvent production facilities that choose to produce products with lower HCB levels.
La stly, the commenter states that there is no evidence in the record that the EPA made any effort to evaluate chlorinated solvent manufacturers’ actual HCB emissions or set standards for these emissions either directly or through a surrogate because the EPA was not purporting to set standards for HCB, either directly or through a surrogate. The commenter believes the agency ’s attempt to make a surrogate claim is entirely conclusory, unsupported by any record evidence, and at odds with evidence that organic HAP is not a valid surrogate for HCB emissions.

74 57 Fed. Reg. 62,608, 62,622, 62,636. 75 ATSDR Article at 235

- 38. 76 57 Fed. Reg. at 62,609.

### 30

**Response:** As explained below, this comment goes to the validity of the chlorinated solvents production NESHAP s and not to the reasonableness of the EPA’s determination that it has established 112(d)(2)/(d)(4) standards for source categories that comprise at least 90 percent of the aggregate emissions of certain HAP to satisfy its obligations pursuant to 112( c )(6). The comment is thus outside the scope of this rulemaking and no response is required. In the proposed section 112(c)(6) determination, the EPA characterized the section 307(d) rulemaking s establishing section 112(d)(2)/(4) standards for chlorinated solvents production activities and how those standards reduce the section 112(c)(6) HAP. The EPA was not reopening the comment period on the surrogate the EPA used to regulate HAP emissions from chlorinated solvent production operations or the stringency

of the MACT standards. The EPA is required by the CAA to justify surrogate and MACT standards at the time they are promulgated based on the record at t hat time. The commenter appears to argue that if the EPA were to propose the various chlorinated solvent production standards today the commenter would object because they maintain the standards do not represent MACT, based on information available today, and because the surrogate used to regulate HAP when the standards were promulgated is unlawful in its opinion. The commenter is essentially arguing that the EPA must determine anew, based on information not in the record or in many cases even available at the time the standards were issued, that the MACT standards the EPA included in the proposed section 112(c)(6) determination are consistent with the requirements of section 112(d)(2)/(4) and also that the EPA’s proposed section 112(c)(6) determination allows the commenter to raise issues that it should have raised during the comment period s for the chlorinated solvent production rule s
. The commenter is incorrect.
The chlorinated solvent production rules were promulgated years ago, and the commenter could have raised its MACT and surrogate issues during the comment periods for the different chlorinated solvent production rules based on the information that was available at the time. The commenter could have petitioned the EPA for reconsideration of the rul e within 60 days of publication in the Federal Register under section 307(d)(7)(B) if the commenter believed the section 112(d)(2)/(4) standards, including the surrogate standard, applicable to chlorinated solvent production activities did not comply with the requirements of the CAA. The commenter could have challenged the surrogate and the section 112(d)(2)/(4) standards in the D.C. Circuit. The commenter could have petitioned the EPA for rulemaking if it believed that the 1998 listing notice was the first time the public had notice of the fact that the EPA was including the chlorinated solvent production source categories in the section 112(c)(6) accounting. As stated in the preamble to this final determination , the commenter did petition the EPA to revise 

### the regulations for the s ynthetic organic chemical manufacturing industry ( SOCMI ) category on the basis that these standards meet section 112(c)(6) obligation for HCB. The EPA denied the petition in a timely manner and the commenter did not contest that determination

. Commenter cannot now assert claims that could have on so many

prior occasions been raised to the Agency and the courts. The CAA creates a system that leads to finality of standards and the comments on this issue attempt to upend that process.
The EPA maintains that the section 112(d)(2)/(4) standards applicable to chlorinated solvent production activities control the HAP emissions, including HCB, from the source categories

. 77 MACT standards for chlorinated solvents production are in Subparts F, G, H, and I. Subpart F includes general standards; Subpart G includes process vents, storage vessels, transfer operations,

77 64 FR 33549 (June 23, 1999)

### 31

and wastewater standards ; and Subparts H and I include equipment leak standards

. Each Subpart has requirements for different emission sources. The five chlorinated solvent production processes identified as creating an HCB by

-product impurity include carbon tetrachloride, perchloroethylene, trichloroethylene, ethylene dichloride, and 1,1,1

- trichloroethane

. 78 These five proce sses account for the 1990 HCB emission inventory baseline for chlorinated solvents production. In addition, they are listed in Table 1 of Subpart F. Also, hexachlorobenzene is listed as an organic HAP in Table 2 of Subpart F. The potential largest source of HCB air emissions in chlorinated solvents manufacturing is in process vents. HCB forms during thermal chlorination, oxychlorination, and pyrolysis when carbon and chlorine react at high temperatures. The HCB by

-product impurity is found in air emissions from the distillation column

. 79 Process/distillation column vents are regulated in Subpart G and controlled by ( 1) reducing emissions of total organic HAP by 98 weight

-percent or to a concentration of 20 parts per million by volume, whichever is less stringent or (2) achieving and maintaining a TRE index value greater than 1.0 at the outlet of the final recovery device, or prior to release of the vent stream to the atmosphere if no recovery device is present. Additionally, halogenated process vents are controlled by (1) routing the combustion device gas exit stream to a halogen reduction device, such as a scrubber, to reduce hydrogen halide and halogen emissions by 99% (95% for devices installed prior to December 31, 1992) or to less than 0.45 kilogram p er hour (kg/hr) or (2) using a halogen reduction device, such as a scrubber, to reduce vent stream halogen atom mass emission rate to less than 0.45 kg/hr prior to routing to any combustion control device. For halogenated streams, the reference control technology not only utilized thermal incineration, but also acid gas scrubbing 80

. The combinations of controls that are necessary to comply with these standards reduce s organic HAP, including HCB , from chlorinated solvents production activities

. **K. Opposition to**  **the Section 129 Standards for**  **Municipal Waste Combustors**
**Comment:** Commenter 0014 disagrees with the EPA’s claim that is has already made a surrogacy determination 81 because the EPA did not claim in the cited rule to have set MACT limits for POM and PCB through surrogates but claimed only that POM and PCB emissions are “effectively controlled”. 82 The commenter states that the EPA did not say what degree of control must be required for control to be “effective,” and did not claim that POM and PCBs are controlled to the maximum extent achievable, as required by § 7412(d)(2)

- (3). Further, in response to comments on that rule, the commenter notes that the EPA denied that it was setting surrogate MACT standards for POM or PCBs: “EPA does not believe that either section 129 or section 112(c)(6) require it to establish numerical limits for PCB and POM emissions from large MWC in order to take credit for reductions in emissions of those pollutants arising from compliance with the large MWC NSPS and emission guidelines in fulfilling its obligations under section 112(c)(6). In addition, that commenter states EPA did not purport to use other pollutants emitted by large MWC as surrogates for PCB and POM.” 83

78 Estimation of National Hexachlorobenzene Emissions for 1990, page 3

- 1 79 Estimation of National Hexachlorobenzene Emissions for 1990, page vii 80 57 Fed. Reg 62,629 81 79 Fed. Reg. 74,678 (citing 70 Fed. Reg. 75,348, 75,356). 82 70 Fed. Reg. 75,356. 79 Fed. Reg. 74,678 (citing 70 Fed. Reg. 75,348, 75,356). 83 EPA, Standards of Performance for New Stationary Sources and Emission Guidelines for Existing Sources: Large Municipal Waste Combustors, Summary of Public Comments and Responses for December 19, 2005, EPA

- HQ

- OAR

- 2005

- 0117

- 0134.

### 32

The commenter concludes that the EPA still has not set MACT standards for emissions of POM or PCBs from large municipal waste combustors, either directly or through a surrogate. Therefore the EPA’s claim to have satisfied its obligations under section 7412(c)(6) is unlawful and arbitrary

. **Response:** As explained below, this comment goes to the validity of the section 129 standards for large municipal waste combustors (MWC) and not to the reasonableness of the EPA’s determination that it has es tablished MACT standards for source categories that comprise at least 90 percent of the aggregate emissions of certain HAP to satisfy its obligations pursuant to section 112(c)(6). The comment is thus outside the scope of this rulemaking and no response is required. In the proposed section 112(c)(6) determination, the EPA included the section 1 29 standards for MWC

. The EPA was not reopening the comment period for that rule by noting that the MWC s tandards establish MACT standards for pollutants the control of which control the section 112(c)(6) HAP emitted from the source category

. The large MWC standards were promulgated years ago, and the commenter could have raised concerns with the stringency of the MACT standards on which the EPA relies in the proposed section 112(c)(6) determination based on the information that was available at the time. The commenter could have petitioned the EPA for reconsideration of the rule within 60 days of publication in the Federal Register under section 307(d)(7)(B) if the commenter believed the section 1 29 standards applicable to the large MWC did not comply with the requirements of the CAA. The commenter could have challenged MACT standards in the D.C. Circuit. In the 1998 notice, the EPA identified this category among those counted towards meeting the 90 percent requirement for POM and PCB
under section 112(c)(6). The EPA explained in that notice that section 129 standards, including the MWC standards, are equivalent to section 112(d)(2) standards and are therefore appropriate for section 112(c)(6) purposes. In 2001, the EPA denied the commenter’s petition to revise the MACT standards on the basis that those standards meet the section 112(c)(6) ob ligation with respect to POM and PCB. The commenter could have but did not challenge the Agencies denial of its petition. Commenter cannot now assert claims that could have on so many prior occasions been raised to the Agency and the courts. The CAA create s a system that leads to finality of standards and the comments on this issue attempt to upend that process.
The EPA maintains that the section 1 29 MACT standards applicable to large MWC control POM and PCB emissions from the source category. While the rule does not identify specific limits for POM and PCB, we continue to take the view that emissions of those pollutants are nonetheless ‘‘subject to regulation’’ for purposes of Section112(c)(6) because these pollutants are effectively controlled by the same control measures used to comply with the MACT standards established for the CAA section 129 pollutants. Specifically, as byproducts of combustion, POM and PCBs are effectively

controlled by

good combustion and post

- combustion practices that are necessary to comply with the CAA Section 129 standards. We also believe that CO serves as an effective measure for good combustion and as an indicator for POM and PCBs , because th ose HAP are by products of poor combustion. The MWC rule established specifi c CO emission limits. We also believe that the post

- combustion controls used to comply with the numerical emission limits established for Hg and dioxin/furans serve to further control PCB emissions because the pollutants act similarly and that the controls necessary to reduce Hg and dioxin/furans will also control POM and PCBs

. The combination of spray dryer, PM control (fabric filter or ESP) and activate carbon injection is a ty pical post

- combustion controls configuration at MWC, and such controls will greatly reduce emissions of these organic pollutants, as well as Hg and dioxin/furan emissions. Based on post

MACT compliance tests at MWC units, Hg emissions have been reduced by 95 percent and

### 33

dioxin/furans emissions by greater than 99 percent from pre

- MACT levels. The EPA’s Municipal Waste Combustion Study

– Flue Gas Cleaning Technology (EPA/530/SW

- 021d; table 4

- 6; EPA

- HQ

OAR

- 2005

- 0117

- 0137) lists control levels exceeding 99 percent in most cases for all of these organic compounds.” The effective control of POM and PCBs by the application of MACT was confirmed by POM and PCB emission tests conducted at a large MWC unit equipped with MACT controls which showed non

- detectable levels of the pollutants (EPA

- HQ

- OAR

- 2005

- 0117

- 0025). Thus, while the MWC rule doe s not identify specific limits for POM and PCBs, they are for the reasons noted “subject to regulation” for the purposes of CAA Section 112(c)(6).