# National Emission Standards for Hazardous Air

**Pollutant Emissions: Off**  **- Site Waste and Recovery**  **Operations**

**Summary of Public Comments and Responses on Proposed Rule** 

**(7 9**  **FR 37850**  **, July**  **2 , 201**  **4 )** 

**U.S. Environmental Protection Agency Office of Air Quality Planning and Standards**  **Sector Policies and Programs Division Research Triangle Park, NC 27711** ii 

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## TABLE OF CONTENTS

1.0 Introduction

................................ ................................ ................................ .......................... 1 2.0 Risk

- Related Assessment and Standards

................................ ................................ ............. 3 2.1 Risk Assessment Data and Methodology

................................ ................................ ...... 3 2.2 Consideration of Risks from Entire Facilities, Indus trial Clusters, and Other Sources in Risk Assessment

................................ ................................ ................................ ...... 12 2.3 Consideration of Demographics in Risk Assessment

................................ .................. 14 2.4 Additional Standards to Address Risks

................................ ................................ ........ 15 3.0 Startup, Shutdown, and Malfunction Exemption

................................ ............................... 18 4.0 Electronic Reporting Requirements

................................ ................................ ................... 24 5.0 Equipment L eak Provisions

................................ ................................ ............................... 26 5.1 Open Ended Line Provisions

................................ ................................ ....................... 26 5.2 Pressure Relief Device Provisions

................................ ................................ ............... 27 5.3 Compliance with 40 CFR Part 63 Subpart H, Including Connector Monitoring Provisions

................................ ................................ ................................ ..................... 29 6.0 Tank Provisions

................................ ................................ ................................ ................. 30 7.0 Control Device, Performance Testing, and Monitoring Provisions

................................ ... 30 8.0 Other Comments

................................ ................................ ................................ ................ 33iv 

## ACRONYMS AND ABBREVIATIONS
**Acronym/ Abbreviation**  **Definition** Act or CAA Clean Air Act ACA American Coatings Association ACC American Chemistry Council AEGL Acute Exposure Guideline Level AMOS Ample Margin of Safety BDT Best Demonstrated Technology Cal OEHHA California Office of Environmental Health Hazard Assessment CERCLA Comprehensive Environmental Response, Compensation, and L iability Act CFR Code of Federal Regulations CHIEF Clearinghouse for Emission Inventories and Emissions Factors CRWI Coalition for Responsible Waste Incineration CWA Clean Water Act EJ Environmental Justice EO Executive Order EPA U.S. Environmental Protection Agency EPCRA Emergency Planning and Community Right

- to
- Know Act ERPG Emergency Response Planning Guideline ERT Electronic Reporting Tool FR Federal Register HAP Hazardous Air Pollutants HEM Human Exposure Model HON National Emission Standards for Organic Hazardous Air Pollutants From the

Sy nthetic Organic Chemical Manufacturing Industry HQ Hazard Quotient IRIS Integrated Risk Information Sy stem LDAR Leak Detection and Repair MACT Maximum Achievable Control Technology MOA Mode of Action NACAA National Association of Clean Air Agencies NAS National Academ y of Sciences NATA National Air Toxics Assessment NEI National Emissions Inventory NESHAP National Emission Standards for Hazardous Air Pollutants OECA Office of Enforcement and Compliance Assurance OEL Open

- Ended Li ne OSWRO Off

- Site Waste and Recovery Operations PAH P olycyclic Aromatic H ydrocarbon PB Persistent and Bioaccumulativev

PHA Process Hazards Anal ys is POM Polycyclic Organic Matter ppm Parts Per Million PRD Pressure Rel ief Device QA Quality

Assurance REL Reference Exposure Level RfC Reference Concentration RfD Reference Dose RQ Reportable Quantity RTR Risk and Technology Review SAB Science Advisory Board SCAQMD South Coast Air Quality Management District SOCMA Society

of Chemical Manufacturers and Affiliates SOCMI Sy

nthetic Organic Chemical Manufacturing Industry SSM Startup, Shutdown, and Malfunction TOSHI Target Organ

- Specific Hazard Index VOC Volatile Organic Compound VOHAP Volatile Organic Hazardous Air Pollutantvi 

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## 1. **0 Introduction** 
On July 2 , 201 4 (7 9 FR 37850 ), the U.S. Environmental Protection Agency (EPA) propos ed to revise the N ational E mission S tandards for H azard ous A ir P ollutants (NESHAP) for O ff

- s it e W aste and R ecovery O perations (OSWRO ) under the authority of section 112 of the Clean Air Act (CAA) . This document presents summaries of the comments that were submitted in response to this action and our responses to those comments f or all comments not discussed in th e preamble to the final rule. Within each comment summary , the EPA provides one or more Docket ID numbers for commenters who raised particular issues. However, the list of commenter ID numbers is not meant to be exhaustive. The EPA does not individually identify each and every commenter who made a certain point in all instances, particularl y in cases where multiple commenters express essentially identical arguments. Although portions of the preamble to the final rule are paraphrased in this document, to the extent any ambiguity

is introduced by paraphrasing, the preamble itself remains the definitive statement of the rationale for the final rule. T hirteen comment letters were received from industry representatives, governmental entities , and environmental advocacy groups during the public comment period. Inaddition, the EPA received one comment letter following the close of the comment period. Although the EPA is not required to consider late comment s , to the extent practicable, the EPA often attempts to consider late comments and our responses to the lat e comment letter are also presented in this document. A list of the commenters, their affiliations, and the EPA docket number assigned to their correspondence is presented in Table 1

- 1. The EPA Docket contains all comment letters submitted and the comments are available for viewing at the EPA Docket Center Re ading Room, or electronically

through http://www.regulations.gov by searching Docket ID No. EPA

- HQ

OAR

- 2012

- 0360 by

docket number.2

**TABLE 1 -**  **1. LIST OF COMMENTERS ON PRO POSED NATIONAL**  **EMISSION**

**STANDARDS FOR HAZAR DOUS AIR POLLUTANTS**  **Document ID**  **a ,b**  **Commenter Affiliation**  57 Donald R. Schregardus U.S. Department of the Nav y (Nav y) 58 Russell A. Wozniak The Dow Chemical Company (Dow) 59 G. Vinson Hellwig and Robert Colby The National Association of Clean Air Agencies (NACAA) 60 David Darling and Javaneh Nekoomaram American Coatings Association (ACA) 61 Lorraine Krupa Gershman American Chemistry Council (ACC) 62 Richard Krock The Vinyl Institute (VI) 63 Emma Cheuse and Jim Pew Sierra Club and California Communities Against Toxics (Sierra) 64 Kevin D. McGrath Veolia ES Technical Solutions, L .L .C. (Veolia) 65 Melvin E. Keener Coalition for Responsible Waste Incineration (CRWI) 66 Michel R. Benoit Cement Kiln Recycling Coalition (CKRC) 67 Scott Kuhn Clean Harbors 68 John Dege E. I . DuPont de Nemours (DuPont) 69 Chris L . Manley Eastman Chemical Company (Eastman) 70 Repeat submission of comment 0063 71 Melvin E. Keener (late comment) Coalition for Responsible Waste Incineration (CRWI) 72 25 attachments to comment 0063
a Document ID identifies comments found in Docket No. EPA

- HQ

- OAR

- 2012

- 0 360 by document number. b Individual comments from the public (and attachments submitted with comments) submitted to the docket are assigned a unique 4

- digit docket number that follows the base docket number (i.e., EPA

- HQ

- OAR

- 2012

- 0360

- XXXX, where “XXXX” represents the unique 4

- di git document docket number). The unique document docket numbers presented in this table and document represent that unique docket number without the preceding 0s. For example, docket number EPA

- HQ

- OAR

- 2012

- 0360

- 0057 is presented as 57 in this table and within the text of this document. The following sections of this document summarize comments received on the proposed standards for the OSWRO source category , f or all comments not discussed in th e preamble to the final rule, as well as the EPA’s responses to these comments. For the purpose of orderly presentation, the comments have been categorized under the following topics: Section 2: Risk

- Related Assessment and Standards Section 3 : Startup, Shutdown, and Malfunction Exemption Section 4 : Electronic Repo rting Requirements Section 5: Equipment L eak Provisions Section 6 : Tank Provisions Section 7 : Control Device, Performance Testing, and Monitoring Provisions Section 8 : Other Comments3



## 2.0 **Risk -**  **Related Assessm ent and Standards**  **2.1 Risk Assessm**  **ent Data and Methodology**  **Comment 2.1.1:** Commenter 59 recommends that the EPA consider risk based on potential or allowable emissions because emissions and associated impacts could increase over time, and anal ys es based on actual emissions may underestimate residual risk. The commenter notes that the thresho lds for major source status were based on maximum potential

- to
- emit, and permits are issued based on potential emissions. Further, the commenter argues that limiting the scope of risk assessments to actual emissions would be inconsistent with the applicabi lity sections of Part 63 rules . While acknowledging that the EPA used allowable emissions in parts of the rulemaking, the commenter encourages the EPA to use allowable emissions also for acute health risks. **Response 2.1.1:** Consistent with previous risk assessments, the EPA considers both allowable and actual emissions in assessing chronic risks under section 112(f)(2). (See, e.g., National Emission Standards for Coke Oven Batteries (70 FR 19998

- 19999, April 15, 2005); proposed and final National Emission Standards for Organic Hazardous Air Pollutants from the Synthetic Organic Chemical Manufacturing Industry (71 FR 34428, June 14, 2006, and 71 FR 76603, December 21, 2006). This approach is both reasonable and consistent with the flexibility inherent in th e Benzene NESHAP framework for assessing acceptable risk and ample margin of safety. As a general matter, modeling allowable emission levels is inherently reasonable since this reflects the maximum level sources could emit and still comply with national em ission standards. But it is also reasonable to consider actual emissions, where such data are available, in the acceptable risk and ample margin of safety analyses . See National Emission Standards for Coke Oven Batteries, 70 FR 19992, 19998 (April 15, 2005 ). The commenter claims that limiting our review to actual emissions would be inconsistent with the applicability section of Part 63 rules. As explained, however, we did not limit our review to actual emissions. T he commenter also urges the Agency to rel y on allowable emissions for the purpose of our acute assessment. The use of allowable emissions was not considered due to the conservative assumptions used to gauge worst

- case potential acute health effects. The conservative assumptions built into the acu te health risk screen ing analysis include: (1) use of peak 1

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

- hour emission rates; (2) that all emission points experience peak emissions concurrently; (3) worst

- case meteorology (from 1 year of local meteorology); and (4) that a person is located downwind at the point of maximum impact during this same 1

- hour period. Thus, performing an acute screen based on allowable emissions would be overly conservative and at best, of questionable utility to decision makers. **Comment 2.1. 2**  **:** Commenter 59 states that the use of the census block centroid dilutes the effect of sources’ emissions, as the maximum point of impact can be far from the centroid and may be at or near a facility ’s property line, and suggested that the risks for a source category be based on the risks to the maximally exposed individual. **Response 2.1. 2**  **:** As we have noted in the development of previous RTRs, such as the Hazardous Organic NESHAP (HON) RTR (71 FR 76603, December 21, 2006), in a national

scale assessment of lifetime inhalation exposures and health risks from facilities in a source category, it is appropriate to identify exposure locations where it may be reasonably expected4

that an individual will spend a majority of his or her lifetime. Further, in determining chronic ris ks, it is appropriate to use census block information on where people actually reside to locate the estimation of exposures and risks to individuals living near such facilities. Census blocks are the finest resolution available as part of the nationwide po pulation data (as developed by the US Census Bureau); each is typically comprised of approximately 40 people of about 10 households. In the EPA risk assessments, the geographic centroid of each census block containing at least one person is used to represent the location where all the people in that census block live. The census block centroid with the highest estimated exposure then becomes the location of maximum exposure, and the entire population of that census block is assumed to experience the maximum individual risk. In some cases, because actual residence locations may be closer to or farther from facility emission points, this may result in an overestimate or underestimate of the actual annual concentrations (although there is no systematic bias for average levels). Given the relatively small dimensions of census block in densely

- populated areas, there is little uncertainty introduced by using the census block centroids in lieu of actual residence locations. There is the potential for more uncertainty when the census block are larger, although there is still no systematic bias. The EPA concludes that the most appropriate locations at which to estimate chronic exposures and risks are the census block centroids because: 1) census blocks are the finest resolution available in the national census data; 2) facility fence lines do not typically represent locations where chronic exposures are likely (i.e., people do not typically live at the fence line of facilities) ; and 3) there is no bias introd uced into the estimate of the maximum individual risk ( MIR ) by using census block centroid locations

. This has been the EPA’s approach for estimating chronic maximum individual exposures and risks throughout the RTR program. In addition, in its peer review of the methodologies used to estimate risks as part of the RTR rulemaking efforts, the EPA’s Science Advisory Board (SAB) endorsed this approach. 1 In addition to the approach described above, the EPA recognizes that where a census block centroid is located on industrial property or is large and the centroid is less likely to be representative of the block’s residential locations, the block centroid may not be the appropriate surrogate. For this source category, as described in the risk assessment document available in the docket, in cases where a census block centroid was within 300 meters of any emission source (and therefore possibl

y on facility property), we viewed aerial images of the facility to determine whether the block centroid was likely located o n facility property. Likewise, we examined aerial image of all large census blocks within one kilometer of any emission source. If the block centroid did not represent the residential locations within that block, we relocated it to better represent them an d/or we added receptors for residences nearer to the facility than the centroid. For this source category, we added several receptors for census blocks where the centroid location was not representative of the residential locations. Appendix 7 of the risk assessment, entitled “Residual Risk Assessment for the Off

- Site W aste and Recovery Operations Source

1 U.S. Environmental Protection Agency, Office of the Administrator Science Advisory Board. Review of EPA’s draft entitled, “Risk and Technology Review (RTR) Risk Assessment Methodologies: For Revie w by the EPA’s Science Advisory Board with Case Studies

– MACT I Petroleum Refining Sources and Portland Cement Manufacturing.” EPA

- SAB

- 10

- 007. May 7, 2010. http://yosemite.epa.gov/sab/sabproduct.nsf/4AB3966E263D943A8525771F00668381/$File/EPA

- SAB

- 10

- 007

- unsigned.pdf

.5

Category” provide additional information on these changes. **Comment 2.1.3:** Commenter 63 states that the EPA cannot assume that hazardous air pollutants (HAP) with no peer

- reviewed reference values for cancer or non

- cancer effects have zero risk. The commenter states that the EPA must select health protective values based on the information it has or, at a minimum, add an uncertainty factor to the risk estim ates. The commenter also requests that the EPA clearl y state which HAP emitted by th is source category have no health reference values. **Response 2.1.3:** This issue was addressed by the EPA’s SAB in its May 7 , 2010 response to the EPA Administrator. 2 In that response, the SAB Panel recommended that, for HAP that do not have dose

- response values from the EPA’s hierarchy list, the EPA should consider and utilize, as appropriate, additional sources for such values that have undergone adequate and rigorous scientific peer review. The SAB panel further recommended that the inclusion of additional sources of dose

- response values into the EPA’s hierarchy should be adequately documented in a transparent manner in any residual risk assessment case study. We agree with this approach and have considered other sources of dose

- response data when conducting our risk determinations under RTR. However, in some instances no sources of information beyond the EPA’s hierarchy are available. The EPA notes that we did state which HAP currently have no reference value. In the risk assessment document, Table 3.1

- 1 lists all the HAP emitted by the source category, and indicates whether there is an available cancer, chronic noncancer and/or acute dose

- response value. **Comment 2.1.**  **4 :**  Commenter 59 states that the use of Acute Exposure Guideline Levels (AEGLs) or Emergency

Response Planning Guidelines (ERPGs) in residual risk assessments is not appropriate and does not ensure that public health is adequatel y protected from the acute impacts of HAP exposure. These limits were developed for accidental release emergency planning and are not appropriate for assessing daily human exposure scenarios. In the December 2002 EPA document, "A Review of the Reference Dose and Reference Concent ration Processes," EPA stated that the primary purpose of the Acute Exposure Guideline Level (AEGL) program is to develop guidelines for once

- in

- a - lifetime, short

- term exposures to airborne concentrations of acutel y toxic chemicals. They are not meant to evaluate the acute impacts from routine emissions that occur over the life of a facility . Unlike the reference concentrations (RfCs) for chronic exposures, the AEGLs and ERPGs do not include adequate safety and uncertainty factors and cannot be relied upon to protect the public from the adverse effects of exposure to toxic air pollutants. The commenter supports the EPA’s increased reliance on the California Reference Exposure Levels (REL s) to address acute exposures in the residual risk assessments, and the commenter continued to urge EPA to use REL s for these assessments. **Response 2.1. 4**  **:** The EPA does not rely exclusively upon AEGL or ERPG values for assessment of acute exposures. Rather, the EPA’s approach is to consider various acute health effect referenc e values (see 79 FR 37857), including the California REL, in assessing the potential for risks from acute exposures. To better characterize the potential health risks associated with estimated acute exposures to HAP, and in response to a key recommendation

2 The SAB pe er review

of RTR Risk Assessment Methodologies is available at: http://yosemite.epa.gov/sab/sabproduct.nsf/4AB3966E263D943A8525771 F00668381/$File/EPA

- SAB

- 10

- 007

- unsigned.pdf

.6

from the SAB’s peer review of the EPA’s RTR risk assessment methodologies, 3 we generally examine a wider range of available acute health metrics ( e.g., RELs, AEGLs) than we do for our chronic risk assessments. This is in response to the SAB’s acknowledgem ent that there are generally more data gaps and inconsistencies in acute reference values than there are in chronic reference values. In some cases, when Reference Value Arrays 4 for HAP have been developed, we consider additional acute values (i.e., occupa tional and international values) to provide a more complete risk characterization. As discussed in the p reamble to the proposed rule (79 FR 37857 ), the exposure guidelines EPA considers depends on which exposure guidelines are available for the various hazardous air pollutants emitted. The EPA uses AEGL and ERPG values (when available) in conjunction with REL values (again, when available) to chara cterize potential acute health risks. However, it is often the case that HAP do not have all of these acute reference benchmark values. In these instances, the EPA describe s the potential acute health risk in relation to the acute health values that are available. Importantly, when interpreting the results, we are careful to identify the benchmark being used and the health implications associated with any specific benchmark being exceeded. **Comment 2.1. 5**  **:** Commenter 63 states that the EPA must account for the health risk from flares , especiall y badl y performing flares, in its assessment of risk. Where the EPA does not have enough information to assess the actual performance and emissions from flares, default values shou ld be used. **Response 2.1. 5**  **:** The EPA disagrees with the commenter that it has failed to adequately assess the risk from the one known flare in th i s source categor

y . We incorporated reported emissions from all emission point s, including this flare in our risk assessment. The commenter has failed to provide the EPA with evidence that the one known flare in thi s source categor

y is underperforming, that any reported emissions from this flare is not accurate, or data on how such a default factor s hould be developed. Lacking that information, we do not believe it is appropriate to apply a default factor to this flare. The commenter also has not identified any other flares in this source category. **Comment 2.1. 6**  **:** Commenter 63 states that all emissions data the EPA currently has are primarily estimates subject to significant error in the estimation calculations. To improve the available data, the commenter states that the EPA needs to require remote sensing and continuous monit oring to track and measure emissions, with technologies such as differential absorption light detection and ranging, solar occultation flux, CEREX UV Hound, and Accusense. The commenter also states that in addition or as an alternative, the EPA should requ ire continuous emissions monitoring and/ or performance tests every y ear, at a minimum, as it has done for other source categories.

3 Id

. 4 U.S. EPA. (2009) Chapter 2.9 Chemical Specific Reference Values for Formaldehyde in Graphical Arrays of Chemical

- Specific Health Effect Reference Values for Inhalation Exposures (Final Report). U.S. Environmental Protection Agency, Washington, DC, EPA/600 /R

– 09/061, and available on

- line at http://cfpub.epa.gov/ncea/cfm/recordisplay.cfm?deid=211003

.7

**Response 2.1. 6**  **:** The emissions data for the risk assessment in the proposed rule were derived from a combination of industry responses to an EPA questionnaire sent under the authority of CAA section 114, the toxics release inventory (TRI) and the National Emissions Inventory (NEI). The sources of the data are documented in the docket. We have worked diligently with state and local agencies and tribes to improve emission inventories over the years, and we have instituted a number of quality assurance (QA) measures to improve data received from state and local agencies for the NEI

. Additionally, the online data reporting s ystem for the TRI contains extensive data quality checks and additional QA analyses are performed by EPA staff once the submissions are received. In addition to the broad QA analysis the EPA performed on the questionnaire response data for the dataset as a whole, the EPA also reviewed the facilities contained in the source category, the emissions units expected to be included for the processes in the source categor y , coordinates and stack parameters, and the HAP compounds and emission levels typically seen. A preliminary data set, containing NEI data, was also reviewed by an industry trade group, individual companies and several state air agencies, and the EPA revised the NEI data where we concluded comments from this review supported such adjustment. The memorandum, Development of the RTR Emissions Dataset for the Off

- Site Waste and Recovery Operations Source Category , available in the docket for this action, set

s forth a detailed explanation of the emissions data compilation and review that the EPA performed for the OSW RO source categor

y . As part of the proposal, we also made the data set available for review using a RTR data review tool in the docket and solicited comments on the data set. The RTR review of the proposal data sets act as an external third party review mechanism of the RTR data set, and we note that no comments regarding the RTR data set were received during the public comment period for the proposed rulemaking. Several opportunities have been provided to review the data used in the current rulemaking. Through the NEI and TRI QA procedures, QA of industry submitted data, industry, state, and NACAA review, public comment on proposal files, source category

-specific engineering reviews, and modeling, improvements to the data files have been made. We believe the data set used in this rulemaking is sufficiently accurate and complete and constitute s the best information the EPA has for conducting the RTR for this source category

. **Comment 2.1. 7**  **:** Commenter 63 claims the EPA lags behind the best available science to address the real

- world health risk for the individual most exposed to OSWRO emissions and must apply

this science in the rulemaking under CAA section 112(f)(2). In particular, the commenter believes the EPA should follow the recommendations of the National Academy of Sciences (NAS ) and the SAB on the key issues that affect the most

- exposed and most vulnerable populations, especiall y children and environmental justice (EJ) communities. The commenter s tates the EPA must consider the science and update its risk assessment in, at least, each of the following ways before finalizing the rule:
 Account for individual

- level vulnerability in this risk assessment by better incorporating the vulnerability of chil dren, earl y- life exposures, and the developing fetus into risk assessment methods

.  Account for increased susceptibility by using California Office of Environmental Health Hazard Assessment (Cal OEHHA) Cancer Guidelines (Age

- Dependent Adjustment Factors) fo r all carcinogens, not just known mutagens and include pre

natal susceptibility

.  For chronic non

- cancer risk, consult and apply child

- specific reference values (such8 as the Cal OEHHA values), where available.
 If child

- specific reference values are unavail able, consult science on earl y exposure impacts, and use an additional default factor of at least 10X. **Response 2.1. 7** 

**:** We disagree with the general comment that the EPA should adopt the Cal OEHHA child

- protective scientific approach on cancer. The EPA has an approach for selecting appropriate health benchmark values and in general, this approach places greater weight on the EPA derived health benchmarks than those from other agencies ( see http://www.epa.gov/ttn/atw/nata1999/99pdfs/healtheffectsinfo.pdf ) . Notably, this approach favoring EPA benchmarks (when they exist) over all others has been endorsed by the SAB. Further, the EPA is currently evaluating whether it is appropriate to use the Cal OEHHA child

specific reference doses, and we note that because there are currently no such values for HAP inhalation, their current utility would be limited to persistent and bioaccumulative (PB)

-HAP, which may be associated with non

- negli gible ingestion exposures. That is, before using these child

-specific reference doses (RfDs), the EPA would need to evaluate whether they have been appropriately derived. We also disagree with the comment that the risk assessment for th is source categor y does not consider the groups that may be most at

- risk (e.g., pregnant women). When the EPA derives exposure reference concentrations and unit risk estimates for metal HAP, it also considers the most sensitive populations identified in the available litera ture, and importantly, these are the values used in our risk assessments (see US EPA. (2002). A review of the reference dose and reference concentration processes. EPA/630/P

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

- final.pdf . W ith respect to maternal exposure in utero specifically, we are unaware of literature that would allow for a robust characterization of risk du ring this stage of development. We acknowledge that population subgroups, including children, may have a potential for risk that is greater than the general population due to greater relative exposure and/or greater susceptibility to the toxicant. As expla ined in previous actions, including the final HON RTR (71 FR 76610

- 76611), the assessments we undertake to estimate risk account for this potential vulnerability. W

ith respect to exposure, the risk assessments we perform implicitly account for this greater potential for exposure by assuming lifetime exposure, in which populations are conservatively presumed to be exposed to airborne concentrations at their residence continuously, 24 hours per day for a full lifetime, including childhood. W ith regard to children ’

s potentially greater susceptibility to non

- cancer toxicants, the assessments rely on EPA (or comparable) hazard identification and dose

- response values which have been developed to be protective for all subgroups o f the general population, including children. For example, a review 5 of the chronic reference value process concluded that the EPA’s reference concentration (RfC) derivation processes adequately considered potential susceptibility of different subgroups with specific consideration of childre n, such that the resultant RfC values pertain to the full human population “ including sensitive subgroups, ” a phrase which is inclusive of childhood. W ith respect to cancer, the EPA uses the age

- dependent adjustment factor approach referred to by the commenter, but limits the use of those factors only to carcinogenic pollutants that are known to act via mutagenic mode of action, in contrast to the OEHHA approach, which uses them across the board for all carcinogens regardless of mode of

5 U.S. EPA. A Revie w of the Reference Dose and Reference Concentration Processes. U. S. Environmental Protection Agency, Risk Assessment Forum, Washington, DC, EPA/630/P

- 02/002F, 2002

.9

action (MOA). In lie u of chemical

-specific data on which age or life

-stage specific risk estimates or potencies can be determined, default age dependent adjustment factors can be applied when assessing cancer risk for early

- life exposures to chemicals which cause cancer through a mutagenic MOA. The estimated risks must also be considered in the context of the full set of assumptions used for this risk assessment. For example, we used a health

- protective assumption of a 70

- year exposure duration in our risk estimates; however, using the national average residency time of 12 years would reduce the estimate of risk by roughly a factor of 6. Our unit risk estimates for HAP are considered a plausible upper

- bound estimate; actual potency is likely to be lower and some of which could be as low as zero. After considering these and other factors, we continue to consider the risks from emissions after application of the revisions to the NESHAP for th is source categor y to provide an ample margin of safety (consistent with the Benzene NESHAP framework). **Comment 2.1. 8**  **:** Commenter 63 states that the EPA failed to perform an adequate multipathway

risk assessment. One reason the commenter states the assessment is inadequate is that it does not account for all the PB

- HAP pollutants. The commenter asserts that the EPA’s choice to restrict the multipathway screening assessment to only HAP that bioaccumulate is not supported by

the 2003 Risk Assessment Guidance because it ignores other HAP that persist and accumulate in soils. In addition, the commenter states that the EPA should include all metals in the multipathway

risk assessment, as recommended by California’s OEHHA and also recommends that naphthalene, a pol yc yc lic aromatic hydrocarbon (PAH), be considered a polycyclic organic matter (POM), which is listed as a PB

- HAP. In addition, the commenter notes that the EPA did not assess all exposure routes, did not use the information from the multipathway

anal ys is in the overall ris k analy sis, and did not add the multipathway risk found to the inhalation risk. The commenter asserts that the EPA may not assume that emissions under the multipathway screening levels are not significant enough to require a full analy sis. The commenter op ines that the EPA should update the incidental soil ingestion factors it uses in its multipathway

risk assessments to fully account for the greater multipathway exposure and risk for children. **Response 2.1. 8**  **:** We believe our multipathway assessment is a reasonable technical analysis of risk to human health from OSWRO emissions of HAP via non

- inhalation pathways based on the information and analytical tools currently available to the EPA . In the Air Toxics Risk Assessment Reference Library, we developed th e current PB

-HAP list considering all of the available information on persistence and bioaccumulation (see http://www2.epa.gov/fera/air

toxics

- risk

- assessment
- reference

- library

- volumes

- 1

- 3 ), specifically Volume 1 Appendix D). (The Air Toxics Risk Assessment Reference Library provides information on the fundamental principles of risk

- based assessment for air toxics and how to apply those principles in different settings (e.g., facility

-specific) as well as strategies for reducing risk at the local level.) This list considered HAP identified as PB

-HAP by other EPA Program Offices (e.g., the Great Waters Program), as well as information from the persistent, bioaccu mulative and toxic ( PBT ) profiler (s ee http://www.pbtprofiler.net ). This list was peer

- reviewed by the SAB and found to be acceptable, and therefore we consider it to be reasonable for use in the RTR program. Based on these sources and the limited available information on the persistence and bioaccumulation of other HAP, we do not believe that the potential for multipathway risk from other HAP rises to the level of the PB

-HAP currently on the list. Naphthalene is not treated as a POM chemical in the multipathway analyses.10

Naphthalene is listed individually as a HAP under Section 112(b) of the Clean Air Act. POM also is listed as a HAP under Section 112(b) and is defined as organic compounds with more than one benzene ring and a boiling point greater than or equal to 100 degrees Celsius. T his definition potentially could include naphthalene. However, naphthalene is short

- lived in environmental media due to its tendency to volatilize and biodegrade and, consequently, will not build up in environmental media over time. 6 I t has a moderate affinity for lipids and will undergo short

- term bioaccumulation is tissues; however, biochemical processes lead to its biodegradation and elimination. Because it is neith er persistent nor bioaccumulative, we do not consider it a PB

-HAP in our multipathway risk analyses and believe that its inclusion as a PB

HAP would result in less accurate and less meaningful estimates of media concentrations and multipathway risk. We did not combine the inhalation and multipathway risk assessment results for each pollutant because it is inappropriate to do so. The multipathway risk assessment conducted for proposal was a screening

- level assessment (i.e., Tier 1). It used highly conservative assumptions designed to ensure that facilities with results below the screening threshold values did not have the potential for multipathway impacts of concern. The screening scenario is a hypothetical scenario. It is inappropriate to combine the res ults of a refined inhalation assessment, which produces a quantitative result, with a screening

- level multipathway assessment, which produces a “yes/no” result. In situations where we have previously summed the inhalation and multipathway assessment result s (e.g., secondary lead smelters), it was for two refined assessments, and still serves as an overestimate of potential risks given that it is highly unlikely that the same receptor has the maximum results in both assessments. We further note that we generally draw no bright lines of acceptability regarding cancer or noncancer risks from source category HAP emissions, and that it is always important to consider the specific uncertainties of the emissions and health effects information regarding the source c ategory in question when deciding exactly what level of cancer and noncancer risk should be considered acceptable. In addition, the source category

-specific decision of what constitutes an acceptable level of risk should be a holistic one; that is, it shou ld simultaneously consider all potential health impacts

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

-- along with their uncertainties, when determining the acceptable level of source category risk. In other words, we look at the risk numbers within the context of uncertainty associated with emissions and health benchmark values. The Benzene NESHAP decision framework of 1989 acknowledged this; in today’s world, such flexibility is even more imperative, because new information relevant to the question of risk acceptability is being developed all the time, an d the accuracy and uncertainty of each piece of information must be considered in a weight

- of

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

- o f

- evidence approach that acknowledges both complexity and uncertainty in the simplest and most transparent way possible. W

hile this challenge is formidable, it is nonetheless the goal of the EPA’s RTR decision

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

- making process. Regarding incidental soil contamination, the EPA has estimated risks from both direct

6 US Agency for Toxic Substances and Disease Registry. 200 5. Toxicological Profile for Naphthalene, 1

- Methylnaphthalene, and 2

- Methylnaphthalene. http://www.atsdr.cdc.gov/ToxProfiles/tp.asp?id=240&tid=43#bookmark08

.11

and indirect pathways. Direct routes of exposure include direct ingestion of soil and exposure thro ugh dermal contact. However, because it has been demonstrated in past analyses that exposure levels associated with dermal contact are but a small fraction of exposure levels associated with ingestion and inhalation pathways, dermal exposures were not assessed for th is source categor

y . **Comment 2.1.9:** Commenter 63 states that the EPA has not used a high enough emissions factor to account for acute risks. The commenter states the EPA used an emissions factor of 1 that fails to adequatel y account for addition al health risk from malfunctions , considering that a facility could emit 100 times more than its usual emissions during a control equipment failure if it usually controls 99% of emissions. **Response 2.1.9:** The acute risk assessment methodology uses a tiered, iterative approach that begins with an assessment of an approximation of a worst

- case exposure. To this end, we assumed that peak 1

- hour emissions are equal to 10 times the average 1

- hour emissions rate (rather than a factor of 1 as stated by the c ommenter), which is only one of the worst

- case assumptions that we made in our acute health risk screening analysis. Other worst

- case assumptions included:
 For facilities with multiple emission points, peak 1

- hour emissions were assumed to occur at all emi

ssion points at the same time.
 For facilities with multiple emission points, 1

- hour concentrations at each receptor were assumed to be the sum of the maximum concentrations due to each emission point, regardless of whether those maximum concentrations occu rred during the same hour.
 Worst

- case meteorology (from one year of local meteorology) was assumed to occur at the same time the peak emission rates occur. The recommended EPA local

-scale dispersion model, AERMOD, is used for simulating atmospheric dispers ion.  A person was assumed to be located downwind at the point of maximum impact during this same 1

- hour period, but no nearer to the source than 100 meters.
 The maximum impact was compared to multiple short

- term health benchmarks for the chemical being ass essed to determine if a possible acute health risk might exist. With regards to the failure of a control device, this would constitute a violation of the emission standard. The acute risk emissions factor is designed to account for fluctuations in emissio ns for facilities complying with the standards, not for facilities in non

- compliance. Therefore, it would be inappropriate to use the emissions factor suggested by the commenter for purposes of determining whether the NESHAP ’ s current requirements are in need of revision under section 112(f)(2). **Comment 2.1. 10**  **:** Commenter 63 states that the EPA should analyze risk including emissions that may

occur above the existing MACT standards, considering malfunctions and violations. The commenter states that the EPA must assess public health risk based on the likelihood of such events and suggests that the EPA develop and apply a factor to the risk results based on available malfunction and violation data. **Response 2.1. 10**  **:** We disagree with the commenter that emission s that exceed standards and are violations, whether or not they are caused by malfunction events, should be considered as part of the risk analysis for purposes of determining the sufficiency of pre

- existing standards, particularly when we are revising the standards to eliminate any excused periods of non

-12

compliance during upset periods. The purpose of the risk review is to evaluate whether the emission limits

-- the “standards promulgated pursuant to subsection (d),” not the non

compliance with those stan dards (section 112(f)(2)(A))

-- should be made more stringent to reduce the risk posed after compliance with the underlying MACT standard. To the extent that a source is violating the underlying MACT standard, no tightening of the emission standard under the residual risk rule will avoid or militate against such violations. In other words, a source that is violating the emission standard promulgated under section 112(d) would not be any more likely to be able to avoid such violations and comply with a different presumably more stringent standard promulgated under section 112(f). Such events are violations and subject to enforcement by the EPA, the states or citizens, and an action for injunctive relief is the most effective means to address violations, whether or not they are caused by malfunctions, if an emissions event poses a significant health or environmental risk. Furthermore, the conservative estimates built into the acute risk assessment are sufficient to gauge worst
- case potential acute health e ffects. The conservative estimates built into the assessment include worst

- case meteorology, emissions at ten times the maximum peak emission rate from all point sources simultaneously, and the sum of the maximum impact of each emission source, regardless of receptor location. Thus, even if we were to consider emissions that are in violation of the standard, we do not believe that they would result in any different level of control than we are promulgating here. **Comment 2.1. 11**  **:** Commenter 67 questions why the EPA used NEI data from 2005 instead of the newer 2011 NEI data for the risk analy sis. **Response 2.1. 11**  **:** As noted in the preamble to the proposed rule and the emissions data documentation available in the docket for this action, Development of the RTR Emissions Dataset for the Off

- Site Waste and Recovery Operations Source Category , we used the best data available to us in the risk assessment. Of the 38 facilities modeled in the risk assessment, data from industry gathered under CAA section 114 was used for 19 facilities . For the remaining facilities where this data was not available, we used a combination of NEI, toxics release inventory (

TRI ) and emissions inventory system ( EIS ) data. In an effort to ensure emissions were assigned to the OSWRO source category wherever possible, an emissions summary was developed by HAP category name at the facility level for side by side comparison of emissions data from the 2005 NEI, 2008 EIS, and 2008, 2009, and 2010 TRI . W hen this data was compi led and modeled in the summer of 2013, the 2011 NEI data was not yet available and was not considered. As the 2010 TRI contained the most recent data available, these data were generally used to fill gaps in or replace the 2005 NEI data, which represented the most complete data available, including data for specific emissions points, emissions point type identifiers, HAP emitted, and emissions release parameters. 

### 2.2 **Consideration of Risks from Entire Facilities, Industrial Clusters, and**  **Other Sources in Risk Assessm**  **ent Comment 2.2.1**  **:** Commenter 63 states that the EPA should assess the cumulative burden of exposures to multiple pollutants and sources via multiple pathways. To do this, the commenter suggests that the EPA aggregate inhalation and non

- inhalation

- based cancer risks; include the interaction of multiple pollutants; and account for exposure to multiple emissions sources including other emissions sources at the facilities and from other sources of toxic air pollutants in13

the area. The commenter states that until the EPA has a specific mechanism for estimating total exposures, use of a default factor of at least 10X should be incorporated in the risk assessments. **Response 2.2.1:**  We have combined risk assessment results to the extent that it is appropriate to do so. W

e consider the effect of mi xtures of carcinogens and use a target organ
specific hazard index (TOSHI) approach for our chronic noncancer assessments. We do not use a TOSHI approach for our acute analyses nor do we combine the results of our inhalation and multipathway assessments. F or the OSWRO source category, the EPA conducted an assessment of the cumulative cancer risks from emitted carcinogens and the cumulative noncancer hazard indices from all emitted non

- carcinogens affecting the same target organ system for both the source category emissions and the facility

- wide emissions. W hile the incorporation of additional background concentrations from the environment in our risk assessments (including those from mobile sources and other industrial and area sources) could be technicall y challenging, they are neither mandated nor barred from our analysis. In developing the decision framework in the Benzene NESHAP currently used for making residual risk decisions, the EPA rejected approaches that would have mandated consideration of backg round levels of pollution in assessing the acceptability of risk, concluding that comparison of acceptable risk should not be associated with levels in polluted urban air (54 FR 38044, 38061, September 14, 1989). Background levels (including natural background) are not barred from the EPA’s ample margin of safety (AMOS) analysis, and the EPA may consider them, as appropriate and as available, along with other factors, such as cost and technical feasibility, in the second step of its section 112(f) analysis. This assessment excludes background contributions because the available data are of insufficient quality upon which to base a meaningful analysis. We disagree with the comment that we failed to consider or account for cumulative risk. The EPA modeled whole -

facility risks for both chronic cancer and non

- cancer impacts to understand the risk contribution of the sources within the OSWRO source category. The individual cancer risks for the source category were aggregated for all carcinogens. In assessing nonca ncer hazard from chronic exposures for pollutants that have similar modes of action or (where this information is absent) that affect the same target organ, we aggregated the hazard quotients (HQ). This process creates, for each target organ, a TOSHI, defined as the sum of hazard quotients for individual HAP that affect the same organ or organ system. All TOSHI calculations presented here were based exclusively on effects occurring at the “critical dose” (i.e., the lowest dose that produces adverse health e ffects). Whole facility risks were estimated utilizing the 2005 NEI, with updated facility

- wide and source category data files developed by the EPA through emission data updates from industry, states, and NACAA. We also disagree with the commenter’s assertion that additional quantitative assessment of risks from sources outside the source category is required under the statute. The statute requires the EPA to provide the quantitative risk information necessary to inform RTR regulatory decisions, and to this end, the EPA conducts a comprehensive assessment of the risks associated with exposure to the HAP emitted by the source category and supplements that with additional information that is available about other possible concurrent and relevant risks. As desc ribed in the risk assessment report (available in the docket for this action), we do not sum results of the acute noncancer inhalation assessment to create a combined acute risk number that would represent the total acute risk for all pollutants that act in a similar way on the same organ system or systems (similar to the chronic TOSHI). As noted in previous responses, the worst

- case acute screen is already a conservative scenario. That is, the acute screening14

scenario assumes worst

- case meteorology, peak e missions for all emission points occurring concurrently and an individual being located at the site of maximum concentration for an hour. Thus, as noted in section 2.7.2 of the Draft Residual Risk Assessment for the Off

- Site Waste and Recovery Operations S

ource Category (Docket Item No. EPA

-HQ

- OAR

- 2012

- 0360

- 0003), “because of the conservative nature of the acute inhalation screening and the variable nature of emissions and potential exposures, acute impacts were screened on an individual pollutant basis, no t using the TOSHI approach.” We did not combine the inhalation and multipathway risk assessment results for each pollutant because it is inappropriate to do so. The multipathway risk assessment conducted for proposal was a screening

- level assessment (i.e., Tier 1). It used highly conservative assumptions designed to ensure that facilities with results below the screening threshold values did not have the potential for multipathway impacts of concern. The screening scenario is a hypothetical scenario, and du e to the theoretical construct of the screening model, exceedances of the thresholds are not directly translatable into estimates of risk or hazard quotients for these facilities. In situations where we have previously summed the inhalation and multipathwa y assessment results (e.g., secondary lead smelters), it was for two refined assessments, and still serves as a conservative overestimate of potential risks given that it is highly unlikely that the same receptor has the maximum results in both assessments

. 

### 2.3 **Consideration of Demographics in Risk Assessm ent**  **Comment 2. 3**  **. 1**  **:** Commenter 59 commends the EPA for considering EJ issues in this proposal. However, the commenter suggests the EPA rule writers work with the EPA’s Office of Environmental Justice to develop specific criteria and guidance on how to interpret and appl y the outcomes of E J analy ses in the rulemaking process. The commenter also specificall y suggests that the EPA use a 5

- kilometer radius rather than 3

- mile radius in its demographic analy ses; that the EPA conduct the demographic analy sis for all people projected to experience risk greater than 1

- in

- 1 million for cancer or an HQ above one, consistent with the approach used for the Hard and Decorative Chromium Electroplating and Chromium Anodizing Tanks source category ; and that the analy sis be conducted using maximum allowable emissions

. . **Response 2.3.1:** The commenter is correct that we performed the demographic analyses for the OSWRO source categor y differently than we did for the October 2010 proposed RTR for the chrome source categories. We performed the demographic analyses for the chrome source categories using two approaches as examples of how such analyses might be developed, and invited public comment on the approaches used and the interpretations made from the results. In the first approach, we focused the analysis on the total populations residing within 5 km of each facility, regardless of their estimated risks, and examined the distribution s across various demographic groups within those 5 km circles. That analysis was a “proximity” analysis in that it considered only the distance from the emission sources to surrounding populations, and not the estimated risks to those populations In the se cond approach, we focused the analysis on the populations within 5 km of any facility estimated to have exposures to HAP which result in cancer risks of 1

- in

- 1 million or greater or non
- cancer hazard indices of 1 or greater. We examined the distributions o f those risks across various demographic groups. In each approach, we compared the percentages of particular demographic groups to the total number of people in those demographic groups nationwide. W

e stated in the proposed rule for the chrome source categories that in future rules15

we planned to extend the analyses to cover the entire modeled domain for a facility (50 km radius) to capture all individuals with risks above 1

- in

- 1 million or greater or non

- cancer hazard indices of 1 or greater. We also stated that generally we have found that using a 5 km radius in the analysis will capture more than 90 percent of the individuals with cancer risks above 1

- in

- 1 million. In the February 2012 supplemental proposal for the RTR for the chrome source categories, our demographic analyses included populations within 50 km of each source (including those very near the sources) with risks of 1

- in

- 1 million or greater or non

- cancer hazard indices of 1 or greater (77 FR 6628, Feb. 8, 2012). We did not include analyses using a 5 km radius in that supplemental proposal nor in the RTR proposal for the OSWRO source categor y . We believe that, where a risk assessment has been performed, it is more informative to consider the demographics of all populations (including those beyond 5 km) with elevated risks than to limit the demographics analysis to populations located within 5 km of a facility. W here a risk assessment has been performed, these populations are identified, and the source parameters (like the low release height mentio ned by the commenter) are taken into account. As discussed above, we have found that most exposure locations with the highest estimated risks are within 5 km of a facility, so extending the radius to 50 km has little impact on an analysis based on risks, b ut makes more sense because 50 km corresponds to the risk modeling radius and includes all populations with elevated risk estimates. We also note that we are working with the Office of Environmental Justice in an ongoing effort to develop new tools for con sidering environmental justice in rulemakings. **Comment 2.3. 2**  **:** Commenter 63 states that the EPA should a ssess and account for increased vulnerability due to socioeconomic status and baseline overall health status in its risk assessment, which could be accomplished by adding a default factor to account for socioeconomic and other community

- based stressors. **R esponse 2.3.**  **2 :**  We are not able to determine the baseline health status of individuals or communities in a national rulemaking. Individual privacy issues as they relate to health records and the costs that would be associated with such an analysis make the analysis infeasible. Through the EPA’s interim guidance on EJ and the Action Development Process, the agency is encouraging rule writers and policy makers to look at the whole range of factors that impact communities and population groups when crafting rules. The EPA is continuing to discuss and pilot approaches that are consistent with the agency’s responsibilities regarding EJ as outlined in EO 12898. In determining the need for tighter residual risk standards, the EPA strives to limit to no higher than 1 00

- in

- 1 million the estimated cancer risk for persons living near a plant if exposed to the maximum pollutant concentration for 70 years and to protect the greatest number of persons to an individual lifetime risk of no higher than 1

- in

- 1 million. Considerations are made for all people regardless of racial or socioeconomic status, and the EPA does not believe it is necessary to establish a default factor to account for socioeconomic and other community

based stressors. 

### 2.4 **Additional Standards to Address R isks**  **Comment 2**  **.4 .1**  **:** Commenter 64 states that the EPA’s risk anal ys is demonstrates that current regulations adequately address HAP emissions from OSWRO facilities , and the proposed emissions controls would not significantl y decrease the health risk to the public and would be16

costly

. The commenter notes the EPA’s assessment of the acceptability of risks and argues that a margin of safety

anal ys is and associated emission controls are not warranted. **Response 2.4.1**  **:** For the OSWRO NESHAP, we are revising emissions controls for equipment leaks and certain tanks concurrently under both the CAA section 112(d)(6) technology review and the CAA section 112(f) (2 ) risk review. As noted in the preamble to the proposed rule (79 FR 37853

- 37854), in keeping with the Benzene NESHAP two
-step process for developing residual risk standards, in the risk review the EPA first examines risk acceptability and then considers whether the existing standards provide for an “ample margin of safety.” The two
-step process does not conclude with a decision of acceptability. In the second step, the EPA determines whether the emissions standards provide an ample margin of safety, considering all of the health risks and other health information considered in the acceptability determination, as well as other relevant factors. Wh ile we proposed that the risks from the OSW RO source category are acceptable, we also found that the cancer risk estimates for 210,000 individuals in the exposed population were above 1

- in

- 1 million , with an MIR of up to 9

- in

- 1 million , based on actual emissions. We then proceeded to the ample margin of safety analysis . For this source category, several options for tanks, equipment leaks and process vents were identified. Finding that the revised requirements would reduce cancer and non

- cancer risks and considering the associated costs, economic impacts, and technological feasibility among other information , we proposed to revise the standards for these emissions sources under CAA section 112(f)

. The commenter has identified no flaw in our reasons or analysis under either section 112(d)(6) or 112 (f )(2) for adopting the revised requirements. **Comment 2.4.2:** Commenter 63 supports the proposed strengthening of emission standards in certain way s for leaks and tanks but states that the EPA also refused to strengthen the existing standards for parts of the source category , including tanks and process vents, based purely on its cost

- benefit anal ys is

. The c ommenter states that EPA use d cost as a metric to develop revised standards , but that CAA section 112(d)(6) does not mention cost

. The commenter states that if the EPA is going to use a “cost

- effectiveness” metric, it should at least assess the cost

- per - pound of emission reductions, rather than cost

- per - ton, consistent with the EPA’s chrome plating rule. The commenter also states that the EPA failed to explain the rationale for determining why some costs were too high and wh y other costs were acceptable in the determination of additional standards. In addition, the commenter states that the EPA’s approach considered onl y the cost per ton of HAP emission reduction, without assessing relevant factors such as: the individual HAPs emitted and the impact those HAPs can have at a level below 1 ton; how many people would be affected by the potential emission reductions; where they live and if they

are in a community

containing multiple HAP sources, or whether they face a longstanding environmental justice impact. The commenter states that the EPA also did not consider or address whether the standards would provide any “margin of safety” to protect public health, much less whether the margin is “ample.” Thus, the commenter claims the EPA ignored and violated CAA section 112(f)(2). **Response 2.4.2:** The EPA disagrees with the co mmenter’s assertion that the decision not to propose more stringent standards other than those for leaks and tanks was based entirely on a cost
- benefit analysis. To address the requirements of CAA section 112(f)(2) for the OSWRO source category, we perform ed a risk assessment, and based on the results of that assessment, made a determination that emissions remaining from the OSWRO source category after17

implementation of the existing standards result in risks that are acceptable. We did not consider costs as part of that analysis. For purposes of determining whether the existing standards provide an ample margin of safety to protect public health, w e assessed the additional risk reductions that would result from tightening the standards (see 79 FR 37868

–37870 ). Specifically, we investigated the possibility of requiring additional emissions controls for leaks, tanks and process vents

. We proposed revised re q uirements for leaks and certain tanks, as noted in th e comment

. In our analysis of the control options for process vents and one of the options for tanks, we estimated reductions in levels of emissions and maximum individual cancer risks and other risk metrics, as well as costs (see 79 FR 37869

–37870 ). Based on th is analysis, we proposed (and are determining in th e final rule) that revisions to the existing standards, beyond those proposed and finalized for leaks and certain tanks, are unnecessary to provide an ample margin of safety. We note that when assessing the cost
- effectiveness of more stringent standards under consideration , we have discretion to express emission reductions that would result from such standards in any reasonable format , such as costs
-

per- ton of emissions reduced

. We also note th at changing units used to express emissions reductions makes no substantive difference , e.g., $ 4, 000 per ton reduced is equivalent to $2 per lb reduced. Presenting costs in terms of costs
- perpound of emissions reduction was appropriate for the chromium electroplating rulemaking , where total emissions and emissions reductions of chromium compounds were below one ton. Further, the EPA disagrees with the commenter that we did not assess the individual HAP emitted or the impact those HAP can have at a level below 1 tpy. As noted at proposal (see 79 FR 37855

- 37856

) and in the risk assessment documentation , we assessed the risks considering all individual HAP emissions, regardless of emission level, from the OSWRO source category. We also assessed the impact that the potential emission control options would have on the level of emissions of the individual HAP and on the risks associated with those emissions, as documented in the memorandum, Estimated Risks an d Risk Reductions Associated with the Emissions Controls Options Considered in the Ample Margin of Safety Analysis for the Off

- Site Waste and Recovery Operations Source Category , available in the docket for this action

. Regarding the comment that the EPA should consider whether people live in a community containing multiple HAP sources, we note that background risks and contributions to risk from sources outside the facilities under review were not considered in the ample margin of safety determination for this source category, mainly because of the significant uncertainties associated with emissions estimates for such sources (see 79 FR 37866 ). Our approach here is consistent with the approach we took regarding this issue in the Hazardous Organic NESHAP (H ON) RTR, which the court upheld in the face of claims that the EPA had not adequately considered background (

NRDC v. EPA , 529 F.3d 1077 (D.C. Cir. 2008)). With regard to the comment concerning longstanding environmental justice impacts, we refer to the pre amble of the proposed rule regarding how we examine environmental justice concerns generally, as well as in this specific rulemaking. **Comment 2.4. 3**  **:** Commenter 63 states that the EPA should revisit or update its presumed acceptable level of cancer risk considering information learned about children’s and overburdened community’s vulnerability and considering new information on way s to anal yz e and control the impact s of pollutants on human health. The commenter believes that 100

- in

- 1 million lifetime cancer risk cannot be considered safe or “acceptable.” The commenter also states that the EPA should factor in uncertainties and vulnerability factors to adjust the leve l of non

-18

cancer risk considered acceptable for both chronic and acute exposure. **Response 2.4. 3**  **:** In 1990, Congress codified in section 112(f) of the CAA the approach we use for our residual risk analyses (i.e., the Benzene NESHAP, 54 FR 38044). Under that a pproach, there is no single bright line (e.g., a 100

- in

- 1 million cancer risk) that indicates that risk is “acceptable.” Rather, multiple health metrics, including the cancer risk, are considered to determine whether the risk is acceptable. Costs cannot be considered at this stage of the analysis. However, the analysis of whether risk is acceptable is not the endpoint. Once we determine that the existing MACT standards or identify what additional controls are sufficient to ensure risk is acceptable, we again review the health metrics in conjunction with considering the costs of controls to determine whether further additional controls should be required to provide an ample margin of safety to protect public health. The commenter does not explain how science has evolved in a way that would undermine the codified framework for determining acceptability. 

## 3 **.0 Startup, Shutdown, and Malfunction Exemption** 
**Comment 3**  **. 1:**  Commenter 58 requests that the EPA provide a six month transition period to comply

with the revised start

- up, shutdown, and malfunction provisions . The commenter notes that additional time is needed to review the final amendments and implement changes, including ph ys ical or operations changes, updat e internal guidance and perform personnel traini ng. **Response 3** **. 1**  **:** We disagree that additional time should be provided to comply with the revised SSM provisions. The court decision which vacated the SSM exemptions in the General Provisions was decided in 2008 ( Sierra Club v. EPA, 551 F. 3d 1019 (D.C. Cir. 2008 ) )

. In addition, OSW

RO facilities have been on notice of EPA’s amendments at least since the proposed rule was published on July 2, 2014. Regarding the malfunction reporting and recordkeeping requirements, facilities should be able to immediately implement these upon the next occurrence of a malfunction

. **Comment 3**  **. 2**  **:** Commenters 65 and 61 argue that standards developed using data generated during steady- state conditions should not apply during malfunctions . Specificall y, the commenters do not agree that the EPA is not required to take malfunctions into ac count when developing emissions standards

. The commenters assert that under the proposed amendments, the OSWRO standards are not achievable at all times and do not reflect what is achieved b y the be st performing sources because emission limits were developed under steady

- state (i.e., normal) conditions , and the EPA is now requiring that they also apply during non

- steady

- state operations (i.e., malfunctions). Commenter 65 asserts that standards develo ped under steady- state conditions cannot incorporate the variability that occurs during malfunctions, and the EPA cannot predict what emission limits a facility can meet “every

day under all operating conditions” if those operating conditions now include m alfunctions

. In reference to CAA section 112(d)(2) and (3), the commenter states that emission limitations must be “achieved in practice , ” which means that the EPA must show that at least one facility can meet the emissions limitations being promulgated (f

or new sources ) and that a similar showing is required for existing sources

. The commenter asserts that the EPA has failed to develop standards that are “achieved in practice” if even the best performing existing sources are expected to have malfunctions, and those malfunctions result in emissions that exceed the standard. In response to EPA’s statement19

that the goal of a best controlled source is to operate in such a way as to avoid malfunctions and accounting for malfunctions could lead to less stringent standards than levels achieved by a non malfunctioning source, the commenter states that congress did not authorize the EPA to set goals but to set emission limitations based on what is achievable

. Commenter 65 asserts that the EPA inappropriately relies on the Clean Water Act (CWA) case Weyerhaeuser v. Costle , 590 F.2d 1011, 1058 (D.C. Cir. 1978) in its justification that the EPA is not required to factor malfunctions into its standards, because that decision addressed a CWA re quirement that, unlike the MACT Floor, was intended to require the develop ment of new control technology

. In response to the EPA’s claim that accounting for malfunctions in setting emission standards would be difficult, if not impossible, b oth c ommenter s s tate that this does not relieve the EPA from complying with the law, and cite Cement Kiln Recycling Coalition v. EPA , 255 F.3d 855, 865 (D.C. Cir. 2001) ; “ Even accepting the proposition that factors affecting source performance ... are difficult to quantify ....If EPA cannot meet this requirement using the MACT methodology , it must devise a different approach capable of producing floors that satisfy the Clean Air Act.” **Response 3** **. 2**  **:** Commenters assert that the EPA must account for malfunctions when determining the emissions level achieved by the best performing sources, but this view is neither reasonable nor supported by the text of the CAA. A malfunction is defined as a “sudden, infrequent, and not reasonably preventable failure of air pollution control and monitoring equipment, process equipment or a process to operate in a normal or usual manner * * *” (40 CFR 63.2). The EPA interprets CAA section 112 as not requiring emissions that occur during periods of malfunction to be factored into development of CAA section 112 standards. Under CAA section 112, emissions standards for new sources must be no less stringent than the level “achieved” by the best controlled similar source and for existing sources generally must be no less stringent than the average emission limitation “achieved” by the best performing 12 percent of sources in the category. There is nothing in section 112 that directs the Agency to consider malfunctions in determining the level “achieved” by the best performing sources when setting emission standards. As the D.C. Circuit has recognized, the phrase “average emissions limitation achieved by the best performing 12 percent of” sources “says nothing about how the performance of the best units is to be calculated.” Nat'l Ass'n of Clean W ate r Agencies v. EPA, 734 F.3d 1115, 1141 (D.C. Cir. 2013). As discussed above, n othing in section 112 requires the Agency to consider malfunctions as part of that analysis, accounting for malfunctions in setting emission standards would be difficult, if not impossible, and could lead to standards that are not reflective of levels achieved by a well

- performing non

- malfunctioning source. Accordingly, the EPA’s approach to malfunctions is a reasonable interpretation of the statute. And in the event that a source fails to comply with the applicable CAA section 112 standards as a result of a malfunction event, as discussed above, the EPA would determine an appropriate response, and the source can raise any and all defenses in any enforcement action that may be filed. The CAA also requires those standards to apply on a continuous basis, which the D.C. Circuit has interpreted to include periods of start

- up, shut

- down, and malfunction. See Sierra Club v. EPA, 551 F.3d at 1027

- 28 (striking down a general provision that exempted start

- up, shut

- down, and malfunction periods). The EPA’s approach both accounts for variability associated with a reasonably foreseeable range of operating conditions and recognizes that enforcement mechanisms can address emission exceedances due to unpreventable equipment or process failures. W

hile commenters seek greater accommodation for malfunctions, such accommodation is not compelled by the statutory text and the EPA believes our approach is20

reasonable. Unlike start

- up and shut

- down, which are foreseeable operations, no one can predict the nature, scope, severity, timing, length, number or likely recurrences of malfunctions a source may
– or may not

– experience. Although EPA bases emission standards on different manners of operations and circumstances, EPA only takes into account conditions that are “foreseeable” and “which can reasonably be expected to recur.” Sierra Club, 167 F.3d at 665; see also Nat. Lime, 627 F.2d. at 431, n.46. Virtually no malfunction is foreseeable in terms of its nature, timing or effect on emission levels and no operator knows if or when a malfunction could recur. Commenters identify no language in the statute that even implies that EPA must factor into MACT emission standards the emission levels that occur during malfunctions. Yet, they assert that CAA section 1 12 mandates that EPA account for malfunctions in establishing every single MACT floor standard or set a separate MACT floor standard for malfunctions, so that they reflec t higher emission levels that might occur during undefined, unidentified malfunction events. Commenters appear to rely on the silence of section 1 12, which does not speak directly to how malfunctions are to be treated to support their view, filling the void with their own judgments of how EPA must address such uncertain and undefined events. W here a statute is ambiguous or leaves a gap as to its application, the Court must defer to the agency's interpretation so long as it is “based on a permissible constru ction of the statute,” Chevron, 467 U.S. at 842

- 43, and in making this determination under the regulatory HAPs program administered by EPA, the Agency is accorded substantial deference. Although EPA may have authority to address malfunctions through diffe rent mechanisms

– albeit limited by the Court in Sierra Club v. EPA (striking down exemptions for malfunctions) and NRDC v. EPA (striking down an affirmative defense for malfunctions)

– EPA’s interpretation that it is not required by section 1 12 to address malfunction emissions by resetting MACT numeric standards is a rational application of section 1 12. EPA has accounted for variability among the best performing sources’ emissions over the range of foreseeable operating conditions. But, as EPA determined, it would be impracticable for EPA to factor unforeseeable, random malfunction incidents into emission standards, and commenters offer no roadmap for doing so. In any event, there is no statutory basis for requiring EPA to take such action. Commenters asse rt that section 1 12 mandates that EPA establish MACT floor standards so that they reflect higher emission levels that might occur during unidentified, unmeasured malfunction events. To support their argument, the commenter states that emission limitations must be “achieved in practice,” which means that the EPA must show that at least one facility can meet the emissions limitations being promulgated (for new sources) and that a similar showing is required for existing sources. The commenter asserts that the EPA has failed to develop standards that are “achieved in practice” if even the best performing existing sources are expected to have malfunctions, and those malfunctions result in emissions that exceed the standard. But a source that suffers worker malf easance or experiences a hurricane or a terrorist event, may also exceed emission standards at certain times. These events, like malfunctions, do not transform standards based on emission levels that actually have been achieved into unachievable standards. Indeed, under commenter’s reasoning, every MACT floor is forever invalid because it does not reflect emission levels that will occur during the next malfunction, act of God, strike, malfeasance or other unpredictable event. Hurricanes and malfeasance can also occur at well

- maintained and well

- managed sources, but this does not warrant factoring such unpredictable events into emission standards.21

Even if malfunctions were inevitable for all sources, including the best

- performing sources, that does not make i t possible to take them into account when establishing MACT emission standards, because they are still unknown in frequency, length, magnitude and, most importantly, effect on emission levels. The commenter (

65 ) asserts that the EPA inappropriately relies on the CWA case Weyerhaeuser Co. v. Costle, 590 F.2d 1011, 1058 (D.C. Cir. 1978) because the Weyerhaeuser court based its holding on the fact that the standards at issue there were technology

- forcing. While the Court did address this point, it went on to u phold EPA’s case

- by

- case enforcement discretion approach to addressing malfunctions because interjecting factors dependent on “murky determinations concerning the sequence of events in the plant, whether those events would have been avoidable” and similar factors, is inconsistent with the intent of Congress to require numeric emission standards that are measurable and easily enforceable. 590 F.2d at 1057

- 58. The commenters also offer the decision in Cement Kiln Recycling Coalition v. EPA as further proof that malfunctions must be considered in developing emissions standards. However, nothing in Cement Kiln even implies that EPA has a duty to reflect in its emission standards emission levels that might occur during unpredictable malfunction events. To the contrary, Cement Kiln cuts to the heart of commenters’ argument. The fundamental principle of commenters’ argument is that due to malfunctions, the MACT emissi on standards, which undeniably have been achieved by OSWRO facilities, may be “unachievable” if specific sources experience a malfunction. The Court in Cement Kiln, however, rejected the notion that because a MACT standard may not be achievable by some sou rces, it is invalid. Cement Kiln, 255 F.3d at 861 (“EPA may not deviate from section 7412(d)(3)’s requirement that floors reflect what the best performers actually achieve by claiming that floors must be achievable by all sources using MACT technology.”). See also Sierra Club v. EPA, 479 F.3d at 878; NACWA, 734 F.3d at 1150 (explaining that the argument that a MACT standard is invalid because it is not achievable by all sources at all times has been “roundly rejected” by the Court). **Comment 3.3 :**  Commenter 65 urges the EPA to establish work practice standards for malfunctions as allowed in CAA section 112(h), in part because it is infeasible to gather data during malfunctions due to the lack of EPA approved test methods for non

- steady

- state conditi ons. The commenter notes that in the 2008 SSM decision, the court stated that the inclusion of “continuous” in the CAA definition of emission standard means that some standards apply at all times but does not mean that the same standard must apply at all t imes, and specificall y noted the potential for the EPA to address malfunctions through work practice standards. As an example, the commenter suggests a requirement to implement a malfunction plan that would detail a facility ’s response to malfunctions and that would outline a method to expeditiously

return to allowable operating conditions. Commenter 61 suggests an approach where the EPA would gather data from the best performing sources on best practices used to mitigate excess emissions during malfunction s. The commenter also suggests that the EPA could create an emission standard that combines emission limits with work practice standards. **Response 3.3:** The EPA’s rationale for its approach to malfunctions is discussed in the preambles to the proposed rule and this final action. The EPA has determined that CAA section 112 does not require that emissions that occur during periods of malfunction be factored into development of CAA section 112 standards. CAA section 112 uses the concept of “best controlled” or “best performing” unit in defining the level of stringency that CAA section 112 standards must meet. Applying the concept of “best controlled” or “best performing” to a unit22

that is malfunctioning presents significant difficulties, as malfunctions are sud den and unexpected events. Accounting for malfunctions would be difficult, if not impossible, given the myriad different types of malfunctions that can occur across all sources in the source category and given the difficulties associated with predicting or accounting for the frequency, degree, and duration of various malfunctions that might occur. Setting work practice standards under CAA section 112(h) for malfunctions

– as opposed to startup or shutdown periods

– presents the same issues as setting numeri cal emission limits given the varied nature of malfunctions

. The decision to use a work practice standard is wholly within the discretion of EPA. CAA section 112(h) (“[T] he Administrator may , in lieu [of a numeric standard ], promulgate a design, equipment

, work practice, or operational standard, or combination thereof.”). In exercising the option to establish a work practice standard, that standard must “ in the Administrator’s judgment [be

] consistent with the provisions of subsection (d) or (f).” CAA section 112(h)(1) (emphasis added). These subsections make clear that EPA is to base emission standards on the emission levels already achieved by the best performing sources and to ensure that public health is protected, as applicable. This means that work practice standards, although written in non

numeric form, must still satisfy statutory requirements such as those applicable to MACT standards, including the requirement to be no less stringent than the MACT floor. It is just as difficult to establish a work practice standard for malfunctions that can approximate the level of emission reduction achieved by the best performing sources during malfunctions as it would be to factor emission levels that occur during malfunctions into the numeric standards, as disc ussed above. EPA would have to design a single work practice standard that applies equally to a tank explosion as it does to innumerable types of operator error, computer glitches or a myriad of other unknown events, or alternatively create innumerable wor

k practice standards. The commenter’s generic suggestion to create a work practice standard that merely directs sources to have plans to respond to malfunctions and expeditiously return to compliant operating conditions does not present a viable solution. The commenter has not provided any evidence that a mere requirement to have such a plan is consistent with EPA’s obligation under section 112(h) to establish a work practice standard only if, in the Administrator’s judgment, it is consistent with section 1 12(d) including the MACT floor requirement. In sum, EPA believes that based on this rulemaking record it would be clearly inappropriate to set a work practice standard for malfunctions in lieu of the otherwise applicable numerical emission limit. We also note that we would consider any response to violations caused by a malfunction on a case

- by

case basis through the exercise of enforcement discretion. **Comment 3. 4**  **:** Commenter 63 states that the past history of the SSM exemption and compliance problems for the source category demonstrates a need for strong and more frequent monitoring, testing, and reporting requirements and enforcement provisions. The commenter declares that the EPA must implement enforcement provisions that prevent and remedy emission spik es, malfunctions, and other violations in a way that will be enforceable by citizens in the Title V permits for th i s source category . The commenter further states that the EPA should review the proposed monitoring requirements and ensure they are stringent enough to enable eas y assessment of whether a facility is in full compliance with the standards within a short period of time of any violation. **Response 3. 4**  **:** We believe that the removal of the SSM exemption will reduce compliance problems that may have been associated with the exemption and excess emission spikes, as23

facilities have an incentive to avoid the related violations and penalties, without the need to institute more frequent monitoring, testing, and reporting requirements. We further believe th at the monitoring requirements included in these rules are sufficient to ensure compliance with the standards regardless of whether or when a violation occurs. Under the provisions of 40 CFR 63.15, the public can request access to reports submitted to the regulatory agency whenever they choose, with the exception of information protected through 40 CFR part 2 (e.g., confidential business information). In addition, as discussed in section 4.0 below, we are promulgating requirements for electronic reporting o f emissions test data that will improve public access to emissions information. **Comment 3. 5**  **:** Commenter 63 states that additional requirements are needed for times of malfunctions, including requirements for automatic shut

- off of malfunctioning equipment, requirements to assign responsibility to the plant manager or high

- up staff member which allows only that person to restart the equipment, and requirements that corrective actions be taken immediately . The commenter also states that for a facility that has had one or more malfunction, exceedance, or other violation in the prior month, the facility must obtain written authorization from the EPA to restart the equipment, and the EPA should only authorize the restart after making a public determination that the facility has instituted the corrective measures the EPA requires. The commenter further asserts that for a facility with more than 4 exceedances or malfunctions in the same quarter, the EPA must require automatic shutdown of the operation for a period of time to conduct and publish a full investigation and ensure correction of the problem(s). **Response 3. 5**  **:** W

e disagree with the commenter that the suggested additional requirements regarding malfunctions or violations are necessary. The EPA believes that the monitoring requirements of the final rule are sufficient to ensure compliance with the emission standards, and that it is not necessary to prescribe when or who may restart equipment that has malfunctioned

. **Comment 3. 6**  **:** Commenter 63 supports EPA’s proposal to require specific public reporting of malfunctions, but expresses concern that EPA proposes to require malfunction reporting as part of a periodic compliance report. The commenter states that the EPA should require safety- related reports and notification much sooner to protect populations living near the facility . Specificall y, the c ommenter declares that the EPA must require telephone reporting b y the facility

24 hours of a malfunction or exceedance and make a notice available pu blicly through the EPA’s website and through ECHO within 24 hours. The commenter also asserts that within 24 hours of receiving this notification, the EPA should provide this information to the appropriate EPA Regional Office and direct the Regional Office to notify the local community

of the event on the Internet, direct communication, and through all available means. The commenter states that the EPA should further require the facility to provide notification to the community through an appropriate public forum, including the company website, written notice to the local municipality

and local school district, and press release to the local newspaper, radio and TV news station, within 24 hours , that contains any information community members may

need to try to protect themselves and their families from the additional air pollution . The commenter further declares a written report should be required within 7 day s and distributed to the public using the same distribution method as the earlier notification and that this report should include the nature of the event, the duration of the event, estimate of emissions released during the event,24

and a description and time of corrective actions taken and planned to be taken. **Response 3. 6**  **:** As noted by the commenter , the final rule requires malfunction recordkeeping and reporting, including for each failure to meet a standard, the date, time, and duration, a list of the affected sources or equipment, an estimate of the volume of each regulated pollutant emitted over the s tandard, a description of the method used to estimate such emissions, and actions taken to minimize emissions and any corrective actions taken. Any reports submitted to the EPA are publicly available subject to the requirements of CAA section 114(c). We d o not agree with the commenter that the suggested additional notification and reporting requirements are necessary, as they would be duplicative of the immediate notification requirements of SARA/CERCLA/EPCRA, would be burdensome for both facilities and ag encies to review, and would not enhance compliance beyond that of the requirements in the rule for reporting violations of emission limits. **Comment 3. 7**  **:** Commenter 63 states that the EPA is legall y required to remove all unlawful exemptions from the emiss ion standards that have previousl y existed for startup, shutdown, and malfunction ( SSM) periods, and not to set any new such exemptions. The commenter claims that equipment leaks are a kind of equipment malfunction and that EPA may not authorize any

such l eaks, because to do so would be in violation of CAA section 302(k) and D.C. Circuit precedent in the Sierra Club v. EPA decision. The commenter also stated that EPA’s proposal to not update the leak detection and repair (LDAR) requirements is an unlawful a uthorization of a malfunction exemption. **Response 3. 7** 

**:** We disagree with the commenter’s claim that the types of equipment leaks addressed in the OSWRO NESHAP are “malfunctions.” Equipment leaks typically occur from equipment such as pumps, compressors, agitators, pressure relief devices, sampling collection systems, open
- ended valves or lines, valves, and connectors. 40 CFR 63.691; See also 61 FR 34147 (July 1, 1996). At the time we developed the MACT standards for this source category, we recognized that these emission points regularly emit small quantities of HAP, and we promulgated standards regulating equipment leaks from these components at 40 CFR 63.691. T hese provisions require OSWRO facilities to monitor for leaks and to repair any detected leaks. These requirements do not establish any exemption, and the commenter’s suggestion that leaks are “exempt” from regulation or that they are “authorized” is not s upported. While any specific equipment leak is not predictable, the types of equipment leaks addressed by the regulations at 40 CFR 63.691 are fairly routine emissions from sources and are not the type of unpredictable or infrequent event for which we cann ot anticipate when, where or how they may occur and that we generally consider to be malfunctions. 

## 4 **.0 Electronic Reporting Requirements**  **Comment 4**  **. 1**  **:** Commenter 58 states that the EPA should address technical issues with the Electronic Reporting Tool (ERT) before requiring submittal of performance test information using the ERT. Based on their experience , the commenter provided examples of technical issues with the ERT primarily

related to the need to submit “ default/fake ” data i n order to make the sy stem work. **Response 4** 

**. 1**  **:** We thank the commenter for the input about situations in which the ERT may require some revisions and the commenter’s experience working with EPA contacts regarding data submission

. We believe the benefits of the system articulated in the proposal preamble outweigh the minor technical issues that may arise during its use, and that a delay in25

the implementation of the system for these issues is not warranted. We note that we are working to continually update and improve the system to address technical issues such as those noted by the commenter. **Comment 4.2:** Commenter 61 comments that the proposal to require the use of the ERT is not appropriate as the costs and burdens imposed cannot yet be determined. Also, the regulated community

cannot full y comment on the cost of duplicating reports using the ERT for Method 18 and other method s not currentl y supported b y the ERT. The commenter state s that the EPA should ensure the ERT includes the ability to accommodate all of the required test data, including Method 18, which can be quite voluminous. **Response 4.2:** The rule only requires that test methods supported by the ERT be reported using the ERT. The EPA believes that the costs and burdens of using the ERT are not significant for several reasons. The electronic reporting requirement does not add any additional testing and it does not change the timing of when test reports are due: the requirement only states that reports be submitted electronically. The ERT is fully functional, has been used successfully by industry for several years, was designed to capture all of the information which is submitted in a typical test report

, and was also designed with input from States and the stack testing industry. **Comment 4.3:** Commenter 61 note s that without a formal notice that changes are being made to the ERT, facilities are at risk of noncompliance with the ERT requirements because they have no way

to know which test methods must be submitted to ERT unless they activel y monitor the EPA’s web site. **Response 4.3:** The ERT website is kept up

- to
- date with the list of methods that are supported by the ERT. The ERT versions after September 17, 2012 automatically check for updated versions and notify the user of the need to replace the ERT applicatio n. Additionally, i f the facilities wish, the EPA recommends joining the CHIEF listserv, which one can do by emailing join

- chief@lists.epa.gov , to be notified of enhancements made to th e ERT. Additionally, the test method dropdown box in the ERT contains a finite list of methods supported by the ERT. By using the latest version of the ERT, the facility will know from the dropdown box which methods are supported. **Comment 4. 4**  **:** Commenter 61 comments that under the proposed rule 40 CFR 63.697(a)(3)(i), all performance test reports must be submitted to the ERT within 60 day s, but because the rule does not reference the general provisions 40 CFR 63.10(d)(2), there is no allowance for obtainin g additional time to complete this due to unforeseen circumstances or for the difficulties involved with completing particularly complex reports. **Response 4. 4**  **:** The commenter is in correct that 40 CFR 63.10(d)(2) is not currently applicable to Part 63 Subpart DD

. Table 2 to Subpart DD clearly indicates that 63.10(d)(2) applies to Subpart DD. The Administrator may approve additional time for a facility to submit the results of its performance test s as allowed under 40 CFR 63.10(d)(2); however, the EPA does not anticipate that additional time will be needed for facilities to submit performance tests due to the requirement to use the ERT , as the ERT is fully functional and has been used successfully by industry for several years.26



## 5 **.0 E**  **quipment Leak Provisions** 
**5 .**  **1 Open Ended Line Provisions**  **Comment 5. 1.1**  **:** Commenter 58 comment ed that although the proposed language requires “no instrument reading of 500 parts per million or greater , ” there is not a proposed requirement to monitor the cap, blind flange, plug or second valve. The commenter adds that these components are not usually in regulated material service if there is a closed valve upstream, and therefore regulated sources would not typically monitor these components. **Response 5. 1.1**  **:** Open

- ended lines and valves are equipment which require the proper installation and use of caps, blind flanges, plugs and second valves to seal the OEL to prevent leaks. However, the EPA does agree with the commenter that monitoring of OELs is not currently required by the LDAR provisions of the OSWRO NESHAP

. **Comment 5. 1.2**  **:** Commenter s ( 60 and 61 ) state that while there are no proposed monitoring requirements in the rule, facilities will need to establish their own monitoring program and schedule for OELs without any assurance that their individual program or schedule would be considered to be in compliance b y an EPA inspector. Commenter 58 adds that if the intent is to require routine monitoring of these components, rule changes are needed to add time periods for completion of repairs. Commenters ( 58 and 61 ) contend that if the EPA does intend to require periodic monitoring, such monitoring rules must be clearl y proposed in a second rulemaking with a public comment period. Commenter 61 states that the EPA did not develop any cost estimates or impacts on the regulated community resulting from the p roposed definition of “seal.” However, the commenter states that facilities will need to develop monitoring plans and regularly

monitor OELseals to ensure they have instrument readings below 500 ppm, which will require capital costs including identifying, tagging and updating software s ys tems for OEL seals. **Response 5. 1.2**  **:** The EPA is not imposing monitoring requirements for OELs. There are no additional costs associated with the clarification concerning “sealed” OEL. W e also disagree with the commenters t

hat the EPA is requiring facilities to regularly monitor their OELs, and thus incur capital and annual costs. The requirement that OELs be sealed is not a new standard and there is no requirement in any of the LDAR requirements for this source categor y that requires facilities to monitor their OELs on a regular basis. **Comment 5. 1.**  **3 :**  Commenter 61 notes that if the EPA revises the definition of “seal” for the OSWRO NESHAP , then it will also need to propose changes to subpart H at 40 CFR 63.167 to includ e the proposed emission limit of 500 ppm for OELs. The commenter adds that the EPA must update Method 21 to account for accurate OEL monitoring. **Response 5. 1.**  **3 :**  It was the EPA’s intent that the clarification of the term “seal” would apply to all OELs in off

-site material service, regardless of whether the facility complies with the LDAR requirements in 40 CFR part 63, subpart H or 40 CFR part 61, subpart V. As such, we have revised the equipment leak requirements in 40 CFR 63.691(b) (1) (iii) a nd (iv) to clarify that the term “seal” applies to OSWRO facilities complying with either subpart H or subpart V

.27

With regard to the commenter’s suggestion to update Method 21 , we note that Method 21 states that it is “applicable for the determination of VOC leaks from process equipment ” and lists several examples of equipment comparable to OELs, in terms of potential sources of equipment leaks, which can be monitored with the method . In fact , section s 8.3.1 and 8.3.1.6 of the method describe how to take a sample from an open - ended line or valve

. T he final OSW

RO rule does not impos e monitoring requirements for OELs; however, if a facility chooses to monitor OELs, Method 21 is an appropriate monitoring method for those devices, and there is no need to amend it for this purpose

. 40 CFR 63.8(f) is also available for a facility owner or operator seeking approval of a modification to a monitoring method 

### 5.2 **Pressure Relief Device Provisions Comment**  **5 .**  **2.1 :**  Commenter 58 states that the proposed monitoring requirements for PRD s should not be applied to containers because they would not be practical to implement , considering that containers are po rtable, are moved frequentl y, and are received from a number of off

- site locations. **Response 5** 

**. 2.1**  **:** We believe the PRD monitoring requirements are necessary for all PRDs to enable operators to identify and minimize emissions from pressure release events. We note that many OSWRO containers do not have PRDs and that , by definition, devices that are actuated either by a pressure of less than or equal to 2.5 pounds per square inch gauge (psig) or by a vacuum are not PRDs. **Comment 5.2.2:**  Commenter 58 states that the EPA should continue to include parameter monitoring systems as options for PRD monitoring sy stems, but should add specific examples of parameter monitoring s ys tems in the rule language, such as a flow monitor or pressure monitor, to the examples of applicable PRD monitoring s ys tems in 40 CFR 63.691(c)(3)(i)

. **Response 5.2.2**  **:** We agree with the commenter that examples of parameter monitoring systems could be provided in addition to the direct monitoring device examples listed in the proposed language, and we have revised the final rule accordingly to improve the clarity of the PRD monitoring requirements

. **Comment 5.2.**  **3 :**  Commenters ( 61, 64 , 67 ) dispute the EPA’s anal ys is of the cost s to comply with PRD monitoring requirement s. Commenter 61 asserts that a legally required parametric monitoring s ystem imposes burdens that the industry does not incur for a parametric monitoring sy stem that is installed for process control, such as data quality evaluation and reporting efforts. Commenter 67 states that the EPA underestimated the costs of installing monitoring devices on PRDs. The commenter disagrees with the use of the “ six

- tenths rule ” to account for economies of scale, and states that any actual economies of scale would depend on regional cost factors and overall demand for the product. The commenter states that the EPA justifies the use of the six

- tenths rule based on a reference to the 2007 South Coast Air Quality Management District ( SCAQMD ) Final report; however, the SCAQMD does not mention the six

- tenths rule and only

makes a general reference to economies of scale. Commenter 64 states that the costs of implementing the proposed amendments are significantl y greater than the EPA’s estimate and that the EPA’s cost anal ys is did not include cos ts for purchasing, installing, and maintaining PRD monitoring device s or the costs associated with designing, constructing and maintaining a closed vent sy stem and control device

. .28

Further, the commenter states that based on a web search they have been uns uccessful in finding any currently

available monitoring devices for PRDs that would satisfy the requirements of the proposed amendments, and expresses concern that there is an unknown cost for obtaining, operating, and maintaining PRD indicator devices. Th e commenter states that PRD monitoring devices are not currentl y used at OSWRO facilities and the availability , reliability and accuracy of these devices is unknown. **Response 5.2.**  **3 :**  The EPA disagrees that PRD monitoring costs have been underestimated. The estimated costs to purchase and install PRD monitor s were based on the best information available, which was data from the SCAQMD, and the costs considered included the cost to purchase the device, and installation and m aintenance costs. We also accounted for the costs associated with recordkeeping and reporting of PRD data in the analyses for the information collection request for this rulemaking. As the rule does not require PRDs to be vented to a control device, no costs associated with doing so were included . In addition, we note that costs were adjusted to account for economies of scale using the six

- tenths rule, which is a general cost estimating technique that has long been used by engineers in industries with processes similar to those regulated by the OS WR O NESHAP, such as the chemical and petroleum industries. More information about the six

- tenths rule can be found in engineering and industrial cost estimation literature. Furthermore, as an owner or operator may be able to use parameter monitoring systems already in place, we believe our cost estimate, which assumed the installation of electronic indicators on each relief device that vents to the atmosphere, likely overstates actual costs to the industry. Several types of electronic monitoring devices that could be used for PRDs were discussed in the 2007 SCAQMD Final R eport referenced and made avai lable with the proposed rule in the memorandu m entitled Cost Impacts of Pressure Relief Device Monitoring for the Off

-site Waste and Recovery Operations Source Category , available in the docket for this action

. Also, these devices have been required for refineries in the SCAQMD since 2009

, and we are not aware of any issues with availability, reliability or accuracy of the devices used. **Comment 5.2.**  **4 :**  Commenter 61 cites the EPA’s statements that PRD releases are caused by malfunctions and that the EPA is not required to establish separate standards for malfunctions and it is too difficult to do so. The commenter asserts that a PRD release is unique in that the “rel ease” is an inherent function of the device, and therefore a work practice standard or a numerical emissions limit could be established. The commenter believes the EPA could have considered data submitted by the commenter along with available data to deter mine whether it may be feasible to group PRDs with process vents and propose a numerical emission standard under CAA section 112(d)(3). Alternativel y, the commenter states the EPA could have established a work practice standard for PRD releases pursuant to its authority under CAA section 112(h). The commenter urges the EPA to consider either of these approaches. Similarl y, commenter 69 advises the EPA to set work practice standards under the authority of CAA section 112(h), instead of establishing a numeric standard under CAA section 112(d). **Response 5.2.**  **4 :**  We disagree with the commenter s . The releases are related to process upsets or other malfunctions that require the release of pressure to avoid damage to equipment and to prevent harm to personnel at the facility. Such releases at OSWRO facilities are not routine, are unpredictable in nature, and are considered to be caused by malfunctions (e.g., poor design, improper maintenance, or operational error) or other occu rrences that do not justify an exemption from standards that, under the CAA, apply continuously. The commenter has also29

failed to establish that the criteria for setting a work practice had b een met, and as we explained in the preamble, it is impracticable to establish work practices or other alternative standards to manage these events in this source category , and CAA section 112 does not require that we do so. **Comment 5.2.**  **5 :**  Commenter 58 suggests that the EPA clarify throughout the final rule that opening of a safety device is acceptable to prevent physical damage or permanent deformation of equipment. The commenter states that the EPA should not remove the option to comply with the provi sions that allow for opening of a safety device to avoid an unsafe condition from the requirements for tanks, containers and transfer s ys tems
. The commenter suggests revisions to the requirements for tanks, containers, transfer s ys tems , and PRD to clarify that a release from a safety device to prevent unsafe conditions is acceptable, and to record such releases and identify

them as a deviation in the next Title V report. The commenter argues that ASME Section 8 Division 1 and 2 and API #620 and 650 vessel c onstruction codes, DOT regulations such as in 49 CFR 178 and 179, and ASME/ANSIpiping codes require that PRD operate when the maximum allowable working pressure is reached for tanks, containers and transfer s ys tems, respectively

. The commenter further states that the definition of “safety device” should not be deleted from 40 CFR 63.681

. **Response 5.2.**  **5 :**  We disagree with the commenter that the definition of “safety device” should not be deleted from the OSWRO NESHAP and that releases from such devices to the atmosphere should be allowed. As stated in the preamble to the proposed rule, “ To our knowledge, pressure relief devices or valves are the only safety devices used in OSWRO processes. ” The commenter has not provided any information to suggest there are safety devices at OSW RO facilities that are not PRDs. Further, a s explained in the preamble to the pro posed and final rule, we are finalizing the proposed prohibition of HAP emission releases to the atmosphere from PRDs in off

-site material gas or vapor service in order for our treatment of malfunction

- caused pressure releases to the atmosphere to conform with the reasoning of the Court’s 2008 Sierra Club v. EPA ruling

. **Comment 5.2.**  **6 :**  Commenter 64 states that the installation of monitoring devices on PRDs and the venting of PRDs to a control device would require a modification to their Hazardous Waste and Title V operating permits, and requests a transition period to allow a currentl y operating fac ility to obtain a permit modification prior to the effective date of the new standard. **Response 5.2.**  **6 :**  The final rule requires that PRDs be monitored , unless they are vented to a control device, within three years of the publication date of the rule. We believe this amount of time is adequate to allow facilities to research equipment and vendors, and to purchase, install, test and properly operate any necessary equipment

. We also believe that three years is an ample amount of time to accomplish any necessary permit revisions. In addition, w e note that facilities must be in compliance with the new requirements by the compliance date, regardless of whether the operating permit has been updated by th at date

. 

### 5 **. 3**  **Com pliance with 40 CFR**  **P**

**art 63 Subpart H, Including Connector**  **Monitoring Provisions Comment**  **5.3.1 :**  Commenter 61 notes that contrary to the preamb le, which states that the30

EPA is proposing to eliminate the option of complying with 40 CFR part 61 subpart V and require facilities to comply with 40 CFR part 63 subpart H , the actual proposed revisions to th e rule text in 40 CFR 63.691(b) continue to allow compliance with subpart V. **Response 5.3.1**  **:** The EPA agrees with the commenter and we have corrected this inadvertent error by revis ing the regulatory text to eliminate the option to comply with 40 CFR part 61 subpart V. 

## 6 **.0 Tank Provisions** 
**Comment 6.1**  **:** Commenter 66 supports the EPA’s conclusion that tank control requirements under Option 2 (98 percent control) are not cost effective and that the existing HAP control Option 1 (95 percent control) should remain in place for the tanks already subject to this control level

. **Response 6** 

**. 1**  **:** We acknowledge the commenter’s support for the existing 95 percent control requirement for level 2 tanks, and agree that 98 percent control was not determined to be cost effective. **Comment 6.2**  **:** Commenter 66 states that the EPA underestimated the number of facilities that would be affected b y the proposed amendments to the vapor pressure thresholds for tank control level. The commenter states that based on its member facilities, there are at least 34 tanks at six facilities that would be impacted b y the pro posed amendments, and a significant number of facilities that are not associated with the commenter that would also be affected. The commenter also believes there are a significant number of facilities that are near the major source threshold that may

become subject to the OSWRO MACT if they expand or change the ty

pes of materials they

manage, and the EPA should consider these facilities in its impacts anal ys is. **Response 6.2**  **:** The commenter did not provide sufficient information to support the claim that we underestimated the number of tanks or facilities in our analysis. In addition, we note that CAA section 114 questionnaires were sent to several of the commenter's member companies in 2013, and the responses received from them documented each OSWRO tank at each facilit y , with its size and the average vapor pressure of the tank contents. These data showed that none of the commenter's member responding companies had uncontrolled tanks of the size and vapor pressure range that would be impacted by the tank standards. The commenter also did not provide documentation to support the claim that there are tanks at other facilities that would be affected by the tank standards nor the claim that there is a planned or impending change in status at any facility that would result in that facility becoming a major source subject to the OSWRO NESHAP. Therefore, we have not revised our analysis to include additional ta nks or facilities. 

## 7 **.0 Control Device, Performance Testing, and Monitoring**  **Provisions**
**Comment 7**  **. 1**  **:** Commenter 63 states that the EPA has not adequatel y supported the conclusion that by

pass of control devices during maintenance for up to 240 hours per year should be allowed. The commenter notes the EPA’s statement that degassing the tank would release nearl y all of the pollution coming from the tank.31

**Response 7** 

**. 1**  **:** As noted in the preamble to the proposed rule at 79 FR 37877, the existing OSWRO NESHAP at 63.693(b)(3)(i) allowed control devices to be bypassed for routine maintenance for up to 240 hours per year, under certain conditions. This existing provision was not limited to control devices for tank emissions

. In this rulemaking, we proposed to limit the applicability of the provision to tanks routing emissions to a control device, consistent with the rationale p rovided in the Hazardous Organic NESHAP (HON). We did not reopen the existing provision for comment, other than to propose limiting it to tanks. The commenter did not state any opposition to our limiting the provision to tanks, and we are finalizing it as proposed. W e note that w ithout this provision, facilities would instead need to degas the tank to conduct routine maintenance. T

he HAP emissions that would result from degassing the tank would be greate r than the emissions that would result from the tank with its emissions bypassing a control device for a short period of time during routine maintenance. Other than paraphrasing a statement from the preamble, the commenter did not make any objections to EP A’s analysis. Therefore, we are finalizing the limitation on the routine maintenance provision in the OSW RO NESHAP to apply only to tanks routing emissions to a control device, consistent with the rationale provided in the HON. **Comment 7**  **. 2:**  Commenter 65 requests that EPA include container repackaging emissions in the 240 hour routine maintenance exemption to by pass a control device in 40 CFR 693(b)(3)(i). The commenter asserts that emissions from these operations are not significant (less than 200 pounds VOC per year at one member facility ) and operational/revenue losses would be greater than any environmental benefit. **Response 7** 

**. 2**  **:** The EPA disagrees that container repackaging operations should be included in the 240 hour routine maintenance provision. As noted in the preamble to the proposed rule in 79 FR 37811, w e have not identified a basis for a pplying the routine maintenance provision in the OSWRO NESHAP to emission points other than tanks. We did not conclude that emissions during routine maintenance are “not significant

. ” Rather, we stated that HAP emissions that would result from degassing the tank would be greater than the emissions that would result from the tank with its emissions bypassing a control device for a short period of time during routine maintenance. Note that for storage tanks, it is impossible to “not operate” (i.e., “shutdown” as provided in 63.693(b)(3)(i) so as not to have breathing losses) during a period of time in which a control device would be undergoing routine maintenance , u nless the tank is emptied and degassed

. In contrast, container repackaging operations can be scheduled or delayed until such time as the routine maintenance is completed and the control device is again operating. **Comment 7**  **. 3**  **:** Commenter 64 requests clarification on the OSWRO applicability of hazardous waste incineration units that are already subject to the Hazardous Waste Combustor NESHAP (40 CFR part 63 subpart EEE). The commenter references the EPA’s discussion in the preamble related to distingui shing OSWRO from other source categories (79 FR 37852), and suggests that the OSWRO NESHAP does not apply to hazardous waste incinerators as these units are already regulated by a separate NESHAP. Commenter 58 states that the EPA should add to the proposed OSWRO requirements in 40 CFR 63.684(b)(5)(v) and 40 CFR 63.693(g)(1)(v) the option to comply with 40 CFR 63 Subpart DDDDD (Boilers and Process Heaters NESHAP) when burning natural gas and/or non

hazardous waste.32

**Response 7** 

**. 3**  **:** The EPA notes that the off

-site material treatment standards for incinerators in 40 CFR 63.684(b)(5) do not include additional requirements pertaining to the operation of incinerators, but rather requires that if an incinerator will be used to comply with the OSWRO NESHAP, it must meet the requirements of one of the regulations listed in that paragraph. As part of this rulemaking, we have updated the list of regulations to include incinerators, boilers o r industrial furnaces for which the owne r or operator comp lies with the requirem ents of 40 CFR part 63 subpart EEE. The EPA disagrees that the Subpart DDDDD Boilers and Process Heaters NESHAP should be a compliance option in the control device provisions for boilers and process heaters or the offsite material treatment provisions for incinerators in the OSWRO NESHAP. These OSWRO provisions require compliance with the RCRA requirements for incinerators in 40 CFR part 264, part 265 or part 266 or with the option we are adding in this action to comply with 40 CFR part 63 , subpart EEE. The subpart EEE and RCRA standards specify requirements for units that combust hazardous waste as defined in 40 CFR 261.3, and are therefore appropriate for the OSWRO NESHAP, which regulates the management and treatment of certain typ es of waste that contain HAP, including many types of waste classified as hazardous. The Boilers and Process Heaters NESHAP does not apply to a unit that burns hazardous waste (unless the unit is exempt from subpart EEE). We believe this standard would als o be insufficient for units that burn non

hazardous off

-site materials, as such materials are likely to be more toxic than the types of materials burned in incinerators regulated by the Boiler and Process Heaters NESHAP. In addition, a provision allowing f or the use of separate requirements for units that only burn non hazardous offsite materials or allowing for separate requirements only at times when the unit is burning non

- off

-site or non

- hazardous materials (e.g., natural gas), would make the requiremen ts of the OSWRO NESHAP difficult to implement and impractical to enforce, especially considering the myriad types of wastes regulated by the NESHAP. **Comment 7**  **. 4**  **:** Commenters ( 58 and 61 ) state that the EPA should include “high point bleeds” in the list of equipment in 40 CFR 63.693(c)(2)(iii) that is exempt from the requirement to install flow indicators or seal s or locking devices on control device b yp ass lines. The commenters assert that high point bleeds may be necessary on an intermittent basis to allev iate a potential flow restriction and safety concern. Further, both commenters state that open

- ended valves and lines in emergency shutdown s ys tems should be exempt f ro m the flow indicator or seal or locking device requirements because the valve must quickly change position if an unexpected shutdown occurs, and a seal or locking device would prevent this movement. **Response 7** 

**. 4**  **:** As stated in the preamble to the proposed rule in 79 FR 37878, we are prohibiting bypasses that divert a process vent or closed vent system stream to the atmosphere to ensure the OSWRO NESHAP is consistent with the 2008 Sierra Club v. EPA ruling., A discha rge of HAP to the atmosphere from a high point bleed is considered a bypass that is a deviation , as provided in 40 CFR 63.683(f)(4)(ii) . Bypass devices are required to be equipped with either a flow indicator or a seal or locking device, and are subject to the recordkeeping and reporting requirements in 40 CFR 63.696(j)(2) and 40 CFR 63.697(b)(6)

. We are also requiring that open

- ended valves and lines in emergency shutdown systems follow the requirements for bypass devices that could be used to divert a ve nt stream fro m the closed

- vent system to the atmos

phere. If a seal or locking device cannot be installed on such bypass devices, as suggested by the commenter, the owner or operator can alternatively install a flow indicator

, which does not restrict the valve from quickly changing position, and must keep33

records of each release and report any deviations as specified in the proposed standard. **Comment 7**  **. 5**  **:** Commenter 58 states that the proposed requirement for control device performance tests in 40 CFR 63.694(l) to “include in such record an explanation to support that such conditions represent normal operation” is redundant to the requirement that performance tests “shall be conducted under such conditions as the Administrator specifies to the owner or operator based on representative performance of the affected source for the period being tested” and will require additional agency action in approving a performance test plan . The commenter suggests that the EPA delete the phrase that states the Administrator will specify performance test conditions. **Response 7** 

**. 5**  **:** The EPA agrees with the commenter, and the final rule has been revised to more simply indicate that performance tests must be conducted under conditions of normal operation. **Comment 7**  **. 6**  **:** Commenter 58 requests that the EPA allow for unusual circumstances during performance tests where limitations of the equipment or plant operation prevent the test from being completed. The commenter suggests adding the sentence “ Exceptions to this may be approved on a case b y case basis and should be approved during a pretest meeting or prior t o the actual compliance testing” after each paragraph that specifies minimum testing requirements, including 40 CFR 63.694(f)(1) , (i)(1) , (l)(3)(i) , (l)(4)(i) and (m)(4)(ii)(A)

. **Response 7** 

**. 6**  **:** The EPA disagrees that the language suggested by the commenter should be included in the OSWRO NESHAP test method requirements . T he performance test notification requirements of 40 CFR 63.7 provide a notification and approval process for the instances mentioned by the commenter. In addition to the reference to 40 CFR 63.7 contained in 40 CFR 63.697(b)(1), we have corrected an error in the General Provisions applicability table, Table 2 to subpart DD, to indicate clearly that the provisions of 40 CFR 63.7(b) and (c) and 40 CFR 63.9(e), which are the performance test notification requirements, apply for subpart DD. The performance test notification requirements in 40 CFR 63.7, require that the source notify the Administrator 60 days before the date of the performance test to allow the Administrator, upon request, to review and approve a site

-specific test plan, and the Administrator has 30 days to approve or deny this site

- specific test plan. In the event that there are unusual circumstances that prevent the specified performance test methods and procedures required by the OSWRO NESHAP from being undertaken, as suggested by the commenter , any such differences should be submitted in the site specific test plan for approval by the Administrator. **Comment 7**  **. 7**  **:** Commenter 57 states that in the semiannual reporting requirements for control device monitoring deviations in 40 CFR 63.697(b)(4) , the EPA mistakenly omitted a reference to 40 CFR 63.683(f), which identifies additional proposed deviations. **Response 7. 7** 

**:** The EPA has corrected the identified error in the final rule. 

## 8 **.0 Other Comments** 
**Comment 8**  **. 1**  **:** Commenter s ( 59 , 63 ) support the EPA’s proposal of additional measures, including more stringent provisions for certain tanks and more stringent LDAR requirements. Commenter 59 encourages EPA to include these additional provisions in the final rule.34

Commenter 63 further suppo rts the EPA’s actions to collect additional emissions and pollution control data for the OSWRO source category , remove SSM emissions exemptions, prohibit releases of emissions from PRD, clarify the definition of seal, and add PRD monitoring requirements. **R esponse**  **8**

**. 1**  **:** We acknowledge the commenters’ support for the EPA ’s proposed rule requirements. **Comment 8**  **. 2**  **:** Commenter 58 requests that the EPA allow OSWRO facilities that in the past accepted but are not currentl y accepting off

- site waste a one year period to implement the provisions of the final rule from the date that they again accept off

- site waste. The commenter states that the one ye ar extension sh ould apply to facilities (the commenter has o ne such facility) that begin accepting off

- site waste again after the compliance dates for the new requirements (i.e., 2016 for LDAR requirements, 2017 for tanks, and 2018 for PRD monitoring). The commenter argues that this provision would allow the facili ty to incorporate the new compliance requirements into their planning to again receive off

- site waste and would align with the flexibility provided in the MACT rules that allow for a one ye ar compliance extension. **Response 8** 

**. 2**  **:** The EPA disagrees with the commenter that a one year compliance extension should be provided in the rule for OSWRO facilities that currently are not but will begin receiving offsite waste again after the compliance dates for the new requirements. We are un certain what the commenter means in allu ding to unspecified MACT rules that supposedly provide for such flexibility

. T he General Provisions, as referenced by the OSWRO NESHAP in Table 2 to subpart DD of part 63, allow a facility owner or operator to apply for a one year compliance extension for the installation of controls under 40 CFR 63.6(i) (4)(i)(A)

. We note that the commenter ’s submission does not demonstrate that an additional year beyond the compliance dates provided in the rule is necessary for any OSWRO facility to comply with the revised standards in these situations. **Comment 8**  **. 3**  **:** Commenter 58 recommends that the EPA clarify the applicability language in 40 CFR 63.680(g)(1) to exclude facilities from complying with OSWRO requirements when the facility is not in off

- site material service. The commenter also requests that the EPA revise the applicability of the language that identifies control device deviations as a violation i n §63.695(e)(5) to exclude facilities that are no t in OSWRO off

- site material service. The commenter states that it has a facility that receive s off

- site waste infrequently

and is used as a backup facility in case the primary facilities that receive off

- si te waste experience an unplanned shutdown. The commenter states that the facility would be subject to RCRA Subpart BB and CC regulations and would continue to comply with RCRA air permit conditions during these operating scenarios. **Response 8** 

**. 3**  **:** The EPA disagrees with the commenter that affected sources or portions of sources should be excluded from OSWRO emission limitations during periods that they are not managing off

-site waste. We believe that such a provision would make the requirements of the NESHAP difficult for facility personnel to implement and would limit the ability of enforcement and compliance personnel to ensure that the maximum achievable emission reductions required by the standard s are achieved and maintained. Such a provision wo uld make the standard especially difficult to implement and enforce in instances where the source receives and manages both on

-site and off

-site material. In such cases, compliance and facility personnel would have difficulty in the determination of when t he OSWRO NESHAP would and would not35

apply and which equipment would be subject to its requirements. **Comment 8**  **. 4**  **:** Commenter 58 states that there is an incorrect reference in 40 CFR 63.685(c)(2)(iii)(B) ; the reference to 40 CFR part 67 subpart OO should be 40 CFR part 63 subpart OO. The commenter also states that in 40 CFR 63.683 (c)(1)(ii) , the VOHAP concentration is missing and 500 ppmw should be inserted. **Response 8** 

**. 4**  **:** The EPA has corrected the identified error s in the final rule. **Comment 8.**  **5 :**  Commenter 64 states that the wording in 40 CFR 63.685(g)(2) is confusing and should be revised for clarification. **Response 8. 5**  **:** The EPA agrees with the commenter, and the final rule has been revised to clarify the requirements of 40 CFR 63.685(g)(2)

. **Comment 8.**  **6 :**  Commenter 63 asserts the EPA must prohibit routine flaring, set a cap to limit special flaring, ensure its efficiency and monitor flaring. The commenter states that the EPA must update the standards to assure that flares follow the practices recommended by EPA’s 2012 peer

- reviewed study

– Parameters for Properly Designed and Operated Flares

– and which the EPA is proposing to do for other source categories, since such flares can be used and the EPA is aware of at least one such u se. The commenter claims that the changes in flaring use and knowledge about flaring are developments that must be considered under CAA section 112(d)(6) and that flares without proper limits violates National Lime Association . The commenter argues that EP A must at least investigate whether there are uncontrolled HAP emissions from OSWRO flares and set limits for them. The commenter further states that the EPA has provided no valid basis to distinguish between flares at facilities like refineries and chemic al plants and the sources under review here, and the EPA must take action to apply the new data on flaring in this rulemaking. Considering the new information the EPA now has that flares are less efficient than previously

understood, the EPA should conside r prohibiting the use of flaring, ensure less reliance on flaring, requiring flare gas recovery s ys tems, requiring improved flare monitoring and ensuring the proper operating parameters are set. The commenter also notes that there is evidence that reduced flaring saves money by capturing and rerouting h ydrocarbons for reprocessing and use. **Response 8.6 :**  Based on information currently available to the EPA, we do not agree with the commenter that flaring must be limited as a control option or that the EPA must update the OSWRO NESHAP to assure that flares follow the practices recommended by EPA’s 2012 peer

reviewed study

– Parameters for Properly Designed and Operated Flares (the "Flare Study")

. Responses to the CAA section 114 questionnaire from OSWRO s ources indicate that flares are not commonly used as control devices for this source category, and we know of only one facility in this source category that uses a single flare as a primary control device in order to comply with the OSWRO NESHAP. Th is single flare is a non

- assisted flare, and the combustion takes place in a partial enclosure at ground level. This is not typical of the elevated flare designs in the F lare S tudy. As indicated in the Flare S tudy, one of the primary factors that affects flare pe rformance is over

- assisting flares with too much steam or air , and while this can potentially occur in steam

- assisted and air

- assisted flare designs, non

- assisted flare types do not have a potential to over

- assist. W e have no information to suggest that th e non - assisted flares at OSWRO sources are achieving poor destruction efficiency. In addition, none of the flare performance data used in the study comes from OSW RO sources. While the commenter asserts36

that the EPA must apply the “new data” on flaring in this rulemaking, the commenter did not identify any specific new data that should be applied or demonstrate that any such data are relevant to the OSWRO source category. The EPA also requested information regarding flares in the preamble to the proposed rule including: “Frequency of flaring; number and types of flares used; waste gas characteristics such as flow rate, composition and heat content; assist gas characteristics such as target assist gas to waste gas ratios and minimum assist gas flow rates; use of flare gas recovery and other flare minimization practices; and existing flare monitoring systems.” We did not receive any comments with additional information responsive to this request. Regarding the issue of banning routine flaring, we note that flare minimization has been required in NSPS Ja for Petroleum Refinery flares, but even in this standard, we did not find it practicable to ban routine flaring or to set a hard cap. Instead, we required owners and operators to assess measures to minimize waste gas flaring, monitor flare gas flows, and conduct root cause analyses for events exceeding baseline flows. W e recognized that owners and operators must have the ability to account for site specific factors regarding the amount of waste gas flared, the ability to recover waste gas and offset natural gas purchases, and other considerations that precluded setting a hard one

-size

- fits

- all limit for all refinery flares. We would similarly not consider setting a hard limit for OSWRO flares, and because of the very limited use of flaring in the OSW RO source category, we would not consider requiring similar flare gas minimization measures. We also disagree with the commenter’s allegation that the OSW RO NESHAP fails to establish HAP limits for flares and that the EPA must investigate whether there are uncontrolled HAP emissions from OSWRO flares and set limits for them . We believe the commenter does not understand the emission sources for which we established MACT standards in the NESHAP. The HA P emission limits apply to the OSWRO emission points, such as tanks, process vents, etc., and the flare is one type of control technology that may be used to meet those limits. As discussed in the preamble to the proposed rule, the existing OSW RO MACT rule provides that OSWRO sources may choose from a variety of control techniques with a 95

- percent HAP destruction efficiency or a flare to control emissions from this source category. Flares are expected to achieve 98 percent HAP destruction efficiency when d esigned and operated according to the requirements in the General Provisions to 40 CFR part 63. The OSW RO MACT at 40 CFR 63.693(h)(1) requires compliance with the General Provisions flare requirements in 40 CFR 63.11 (b ) which provides that flares used for compliance be: (1) steam

- assisted, air

- assisted, or non - assisted; (2) operated at all times when emissions may be vented to them; (3) designed for and operated with no visible emissions (except for periods not to exceed a total of 5 minutes during any 2 co nsecutive hours); and (4) operated with the presence of a pilot flame at all times (using a thermocouple or other heat sensing device and record for each 1

- hour period as required by the OS WRO MACT at 63.683(h) that the pilot flame is continuously present) . The General Provisions also specify requirements for both the minimum heat content of gas combusted in the flare and maximum exit velocity at the flare tip. The OSWRO MACT then requires that a compliance demonstration be conducted by the owner/operator to demonstrate all flare requirements are met. The single flare at the one facility in the OSWRO source category is currently subject to the flare requirements in the General Provisions summarized above. T he facility reported a 98 percent HAP destruction ef ficiency for the flare in its CAA section 114 response, which is included in the docket for this rulemaking

. We also disagree with the statement that there is no valid basis to distinguish between37

flares at facilities like refineries and chemical plants a nd OSW RO sources. For flares in the OSWRO source category, the EPA has made no determination of insufficient regulatory requirements or poor operational performance. The EPA has proposed to update flare requirements for one source category, petroleum refineries, pursuant to CAA s ection 112(d)(2) and (3), to ensure compliance with the 98 percent HAP reduction requirement in the refinery MACT standards. As discussed in the refineries propos al preamble, the potential for reduced flare performance is attributable to flare minimization efforts at refineries (79 FR 36905, June 30, 2014) , which have led to an increasing number of flares operating at well below their design capacities . This minimi

zation effort has resulted in reduced flaring of gases at refineries, and thus, has also resulted in over assisting the flare with steam or air at some refinery flares, leading to the degradation of flare combustion efficiency. As discussed in the refineri es proposal preamble, for the 510 flares in the refinery source category, 90 percent are steam
- assisted or air

- assisted flares. We disagree with the commenter that we should amend the operating requirements for flares in the OSW

RO source category, and we are not at this time promulgating any changes to the currently applicable regulations pertaining to the performance of flares for this source category. **Comment 8. 7**  **:** Commenter 63 states that the EPA should create a community complaint mechanism that ensures citizen complaints concerning air pollution receive an immediate response, in which the EPA commits to initiate an investigation and provide a publicl y available report of the investigation results, including whether it leads to an enforcement action, w ithin 7 day s. **Response 8. 7** 

**:** The EPA takes citizen pollution complaints seriously and is committed to responding to complaints. We invite the public to help us protect our nation's environment by identifying and reporting environmental violations. The EPA's Report an Environmental Violation website provides a way for the public to report suspected environmental violations. ( http://www.epa.gov/compliance/complaints/moreinfor.html ) Assuring compliance with our nation's environmental laws is one of EPA's primary commitments. In carrying out this responsibility, we use many different approaches. One approach is to seek help from the public by asking it to provide EPA with information about potentially harmful environmental activities in communities and workplaces. Reports from the public have led to state and federal en forcement cases and ultimately served environmental protection well.