Date: May 22, 2015

Subject: Summary of Public Comments and EPA’s Responses for the Completion of 

Requirements to Promulgate Standards Under CAA Section 112(c)(6) 2015 Final 

Rule

From: Chuck French, EPA/OAQPS/SPPD

To: Docket: EPA-HQ-OAR-2004-0505

I. Introduction

On December 16, 2014, the EPA published in the Federal Register the proposed 

determination that the requirements of CAA section 112(c)(6) were fulfilled in February of 2011. 

79 FR 74656 (December 16, 2014). We received public comments in response to this proposal. 

Some comments and responses appear in the preamble to the final rule. This document contains 

summaries of the public comments that the EPA received on the proposed standards that are not 

summarized and addressed in the preamble to the final rule. Copies of all comments submitted 

are available at the EPA docket Center Public Reading Room. Comment letters and transcripts of 

the public hearings are also available electronically through http://www.regulations.gov by

searching Docket ID EPA-HQ-OAR-2004-0505.

II. List of Commenters

Table 1 summarizes the names of the associations and individuals who provided 

comments on the proposed Clean Air Act (“CAA” or “the Act”) Section 112(c)(6) Completion of 

Requirement to Promulgate Standards. 

Table 1. Commenter List

Comment No.b Association Name

0012 Council of Industrial Boiler Owners (CIBO) Robert D. Bessette

0013 Coalition for Clean Air Implementation Jeffrey Knight

0014 Earth Justice on behalf of Sierra Club Neil Gormley
2

III. Summary of Comments and Responses

1. Support for the EPA’s Determination

Comment: Commenters 0013 and 0012 support the EPA’s proposed determination that the 

requirements of CAA §112(c)(6) have been satisfied. The commenters support the EPA’s revisions 

and adjustments to the 1990 baseline inventory and the CAA §112(c)(6) list which commenter 0012 

states more accurately reflect source category emissions and are based on data provided by industry 

over the last 20 years.

Commenter 0013 states that the regulations included in Tables 2 and 3 of the Proposed Rule 

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

– from numerical emission limits to emission reduction requirements to work practice and 

engineering controls – that clearly constitute “standards” as contemplated under CAA §§112(c)(6), 

(d)(2), and (d)(4). The commenter notes that the language of §112(c)(6) contemplates the full range 

of control requirements the EPA required in those rules and does not require the EPA to promulgate 

these standards in any particular form. The commenter concludes by stating that the controls required 

under the listed rules are achieving emission reductions of §112(c)(6) hazardous air pollutants (HAP)

(and of other HAP regulated under CAA §112) and related health benefits as projected by the EPA in 

each rule. 

Response: The EPA agrees that it has satisfied the section 112(c)(6) requirement and that the 

standards in the proposed determination do reduce the section 112(c)(6) HAP. The EPA established 

the standards identified in the proposed determination through notice and comment rulemaking 

actions pursuant to Clean Air sections 112(d)(2) and 307(d). 

Comment: Commenters 0012 and 0013 agree with the EPA’s approach to use the 16-

polycyclic aromatic hydrocarbons (PAH inventory for determining the 90 percent threshold for 

polycyclic organic matter (POM)).

1 Commenter 0013 also states that using a combination of the 16-

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

that the 7-PAH and EOM inventories lack sufficient data and are not as robust as the 16-PAH 

inventory. The commenter goes on to say that using all three inventories to determine the 90 percent 

threshold is not required by §112(c)(6) and doing so would be unsound given the distortions this 

would create in the relative contribution of POM emissions for some source categories. Additionally, 

the commenter states that because the three inventories overlap in the compounds they include, using 

multiple inventories would risk double- or triple-counting emissions from some source categories.2

Response: The EPA agrees that its inventory approach for the section 112(c)(6) HAP POM 

is reasonable.

Comment: Commenters 0012 and 0013 support the EPA’s use of surrogates and state that 

the United States Court of Appeals for the D.C. Circuit (D.C. Circuit) has upheld the use of a 

surrogate substance to regulate hazardous pollutants when it is reasonable to do so. See Nat’l Lime 

Ass’n v. EPA, 233 F.3d 625, 637 (D.C. Cir. 2000) (upholding use of particulate matter emissions as a 

surrogate for HAP metal emissions from cement kilns because evidence showed HAP metals are 

almost always present in cement kiln particulate matter); Sierra Club v. EPA, 353 F.3d 976, 982-85 

 

1

See 79 Fed. Reg. at 74672.

2

See 79 Fed. Reg. at 74672.
3

(D.C. Cir. 2004) (upholding use of particulate matter as surrogate for HAP emissions in copper 

smelter MACT rule); Bluewater Network v. EPA, 370 F.3d 1, 18 (D.C. Cir. 2004) (upholding 

hydrogen chloride emissions as a surrogate for fine particulate matter). See also Sierra Club v. 

Johnson, 444 F.Supp.2d 46, 60 (D.D.C. 2006). Additionally, commenter 0013 states that the EPA 

may regulate a pollutant indirectly by requiring control methods or practices that have the co-benefit 

of also controlling emissions of the pollutant. See NRDC v. EPA, 822 F.2d 104, 125 (D.C. Cir. 1987). 

Commenter 0013 also notes that in prior rulemakings the EPA has explained and requested 

public comment on its reasoning for using surrogates generally and specifically as to polychlorinated 

biphenyls (PCBs) and POM.3 Even when the EPA did not specifically cite the connection to 

§112(c)(6) in setting some earlier standards, the commenter states that the surrogate relationships the 

EPA used in those rules are scientifically sound and therefore permissible under National Lime and 

related cases. In addition, as noted in the Proposed Rule, the commenter states that standards set 

using surrogates reduce emissions of the §112(c)(6) HAP, and therefore satisfy the requirement of 

§112(c)(6). Regarding ICI boilers, commenter 0012 states that the EPA’s §112(c)(6) conclusions and 

use of carbon monoxide (CO) as a surrogate to regulate POM are well supported by the records in the 

major source boiler and area source boiler rulemakings.

Lastly, commenter 0013 states that the EPA’s use of scientifically sound surrogates is further 

supported by the practical difficulties of focusing standards on one specific HAP compound in a 

category of related pollutants. The alternative of monitoring and controlling each individual pollutant 

invites technical complications and imposes burdens and costs for no reductions or marginal 

reductions in emissions. In many cases, the commenter notes, it is more difficult and costly for the 

EPA to set – and for the regulated community to comply with – standards focused on a single HAP 

compound where an existing monitoring device or test method collects data on a category of related 

pollutants that are already subject to standards. The commenter believes it would be irrational for the 

EPA to propose separate standards and/or emission monitoring for a particular §112(c)(6) HAP 

where existing standards control and monitor emissions of that HAP through surrogate pollutants. 

The commenter highlights that nothing in CAA §112(c)(6) requires or permits the EPA to propose 

such unreasonable and unnecessary requirements

Response: As explained in the final determination published in the Federal Register, 

comments on the substance of the standards listed in the proposed section 112(c)(6) determination 

are outside the scope of this rulemaking. The EPA agrees that it has the authority to establish 

surrogate standards and maintains that the standards were issued pursuant to CAA sections 112(d)(2) 

and 307(d). 

2. Opposition to Surrogacy Determinations in Prior EPA Regulations Issued Through Notice 

and Comment Rulemaking Pursuant to Section 307(d) of the CAA

 

3

See, e.g., Final Standards for HAPs for Hazardous Waste Combustors, 64 Fed. Reg. 52827, 52847 (Sept. 30, 1999) (“We proposed that that 

emission of nondioxin/furan organic HAPs be controlled by compliance with continuously monitored emission standards for either of two 

surrogates: CO or hydrocarbons.”); Standards of Performance for New Stationary Sources and Emissions Guidelines for Existing Sources: 

HMIWI, 74 Fed. Reg. 51368, 51390, 51399 (Oct. 6, 2009) (“While we have not identified specific numerical limits for POM and PCB, we 

believe CO serves as an effective surrogate for those pollutants, because CO, like POM and PCBs, is formed as a byproduct of combustion ... . 

We believe that dioxins/furans also serve as an effective surrogate for PCBs, because the compounds act similarly and, thus, are expected to be 

controlled similarly using HMIWI emissions control technology ... .”); Standards of Performance for New Stationary Sources and Emission 

Guidelines for Existing Sources: Large Municipal Waste Combustors, 70 Fed. Reg. 75348, 75356 (Dec. 19, 2005) (“EPA considers emissions of 

these five pollutants from MWC units “subject to standards” for purposes of CAA section 112(c)(6)”); NESHAPs for Major Sources: Industrial, 

Commercial, Institutional Boilers and Process Heaters, 76 Fed. Reg. 15608, 15653 (Mar. 11, 2011) (“Consequently, we have concluded that the 

emissions limits for CO function as a surrogate for control of POM, such that it is not necessary to require numerical emissions limits for POM 

with respect to boilers and process heaters to satisfy CAA Section 112(c)(6).”) 
4

Commenter 0014 commented on a number of the section 112(d)(2)/(4) standards that the EPA 

counted towards satisfying the requirement to establish such standards for source categories 

accounting for not less than 90 percent of the section 112(c)(6) HAP emitted from major and area 

stationary sources. Some of the standards at issue were established more than 20 years ago. As stated 

in the Federal Register notice, the proposed section 112(c)(6) determination did not reopen the prior 

rules and section 112(c)(6) does not create a separate cause of action allowing the commenter to

challenge the adequacy of prior EPA rules promulgated pursuant to other provisions of the CAA. The 

EPA has established section 112(d)(2) or (4) standards (and section 129 standards) for categories 

sufficient to ensure that categories accounting for not less than 90 percent of the section 112(c)(6) 

pollutants are subject to standards. All of those standards were promulgated through notice and 

comment rulemaking pursuant to CAA section 307(d). Comments on prior rules are outside the scope 

of this action and thus require no response. Nonetheless, the EPA recognizes the significant public 

interest in these issues and therefore, in this document, explains why the criticisms of prior rules lack 

merit. These responses do not constitute the Agency’s justification for those prior actions as the 

justification for each rule was provided at the time of promulgation and based on the information 

available at that time. Further, no aspect of the prior rules has been reopened or reconsidered. As 

explained in greater detail below, commenters had numerous opportunities to challenge the 

sufficiency of those standards with regard to HAP emitted from those source categories, including 

the section 112(c)(6) HAP. They also have additional avenues to bring newly identified concerns to 

the Agency’s attention. 

A. Opposition to the Section 112(d) Standards for Coke Ovens

Comment: Commenter 0014 states that for several industrial source categories included in 

the EPA’s proposal, the agency has not set standards requiring the maximum achievable reduction in 

the emissions of the 7412(c)(6) pollutants, but instead claims that it has imposed a MACT-level of 

control on those sources’ total emissions, which that commenter believes is not the same thing. The 

commenter uses coke ovens as an example and states that the EPA assured that “coke oven emissions 

(which include POM)” “are subject to a MACT level of control.”4 The commenter states that the 

EPA’s claim that the MACT standards for total HAP are the “only feasible means of regulating” 

emissions of POM from coke ovens5does not speak to whether total HAP is a reasonable surrogate 

for POM (i.e., whether emissions of total HAP identify the best performing coke ovens with respect 

to POM and what they can achieve with respect to POM Sierra Club, 353 F.3d at 985; 42 U.S.C. 

§7412(d)(2)-(3)). Rather, the commenter believes it is a claim that the EPA is not able to set a POM 

limit for coke ovens. The commenter states that if the EPA believed it was not feasible to set 

emission standards for POM, the agency was free to so claim and, under §7412(h), establish work 

practice standards in lieu of emission standards for POM. 

The commenter adds that the EPA does not claim that visible emissions are a surrogate for 

POM or that POM is “invariably present” in visible emissions. The commenter believes that POM is 

not “invariably present” in visible emissions because POM includes many different classes of 

particles, some of which are gaseous and not present in visible emissions6. The commenter notes that 

the EPA also does not claim that visible emissions are correlated with gaseous POM or provide any

data to establish such correlation. The commenter believes that the EPA only claims that reductions 

 

4

79 Fed. Reg. 74,678/2.

5 Citing the preamble to that rule. 79 Fed. Reg. 74,678/2 (citing 69 Fed. Reg. 48,341).

6

See Sahu Comments at 2.
5

in visible emissions result in a reduction in mass emissions, not that reductions in visible emissions 

will produce any reduction in POM, or that low levels of POM will be detected though measurement 

of visible emissions. Therefore, the commenter concludes that using visible emissions as a surrogate 

does not allow the EPA to identify the best performers with respect to POM, as required by section 

7412(d)(3) and Sierra Club, 353 F.3d at 985. Nor, the commenter states, does the EPA claim that 

reducing visible emissions is the “only means by which facilities achieve reductions” in POM. 

National Lime, 233 F.3d at 639. In fact, the commenter states, that fugitive coke emissions can be 

captured and routed to a control device7 which may not reduce POM, or may reduce it far less than 

visible emissions. The commenter also concludes that even if the EPA were to claim that visible 

emissions are a surrogate for POM, that claim would be arbitrary because there is no supporting data 

and analysis on POM emissions in the record.

Response: This comment argues that the original MACT standards for several source 

categories including the coke oven source category did not adequately establish MACT standards for 

POM. The commenter’s assertion that the EPA cannot include the coke oven source category in its 

inventory of sources subject to MACT standards for POM relies exclusively on the argument that the 

underlying MACT standards were inadequate. The comment seeks to identify a variety of 

inadequacies such as inadequate data to establish a surrogacy relationship and suggests that the EPA 

should now evaluate additional control options not included in the original rule. In 1999, the 

commenter filed a petition requesting that the EPA revise the coke over NESHAP to address section 

112(c)(6). In 2001, the EPA denied the petition and explained that the coke oven standards meet 

section 112(c)(6) obligation with respect to POM. Further, as explained in greater detail below, these

comments go to the validity of the underlying MACT rule and not to the reasonableness of the EPA’s 

determination that it has established 7412(d)(2)/(d)(4) standards for source categories that comprise 

at least 90 percent of the aggregate emissions of certain HAP to satisfy its obligations pursuant to 

112(c)(6). This comment is thus beyond the scope of this rulemaking and the EPA has no obligation 

to respond.

In the proposed section 112(c)(6) determination, the EPA identified the section 307(d) 

rulemakings that established MACT standards for the source categories in its inventory of sources 

subject to MACT standards for the 112(c)(6) pollutants. For some standards it also provided 

additional information explaining how those standards reduce the section 112(c)(6) HAP. The EPA 

did not, in that notice, reopen or request comment on the stringency of those MACT standards, the 

validity of any surrogates used in those standards, or the validity of any other aspect of those prior 

rulemakings.

The EPA is required by the CAA to justify any surrogacy relationships relied upon and any

MACT standards established at the time they are promulgated based on the record at that time. In 

addition, the CAA requires the EPA to set MACT standards for all HAP emitted by major sources in 

a source category. All of the standards relied on in the EPA’s inventory were promulgated under 

section 112 through notice and comment rulemaking, and any party could have challenged, during 

that rulemaking process or in court following promulgation of the rule, the validity of the surrogacy

relationships or argued that the standards did not constitute MACT for one or more HAP emitted by 

the source category. The commenter appears to argue that if the EPA were to propose the coke oven 

standards today the commenter would object because it maintains the standards do not represent 

MACT, based on information available today, and because the surrogate used to regulate HAP when 

the standards were promulgated is unlawful in its opinion. The commenter is essentially arguing that 

 

7

See Sahu Comments at 2-3.
6

the EPA must determine anew, based on information not in the record or in many cases even 

available at the time the standards were issued, that the MACT standards EPA included in the 

proposed section 112(c)(6) determination are consistent with the requirements of section 

112(d)(2)/(4) and also that the EPA’s proposed section 112(c)(6) determination allows the 

commenter to raise issues that it should have raised during the comment periods for the coke ovens 

rules. The commenter is incorrect. 

The coke oven standards were promulgated is some cases more than 20 years ago, and the 

commenter could have raised any concerns regarding the MACT standards and surrogacy

relationships during the comment period for the coke oven rules based on the information that was 

available at the time. The commenter could have petitioned the EPA for reconsideration of the rules 

within 60 days of publication in the Federal Register under section 307(d)(7)(B) if the commenter 

believed the section 112(d)(2)/(4) standards, including the surrogate standards, applicable to coke 

ovens did not comply with the requirements of the CAA. See 57 FR 57535 and 69 FR 48341. The 

commenter could have challenged the surrogates and the section 112(d)(2)/(4) standards in the D.C.

Circuit. As stated above, the commenter filed a petition for rulemaking after the 1998 listing notice 

and the EPA denied that petition. The commenter did not challenge the EPA’s denial of the petition.

All of these avenues were available to the commenter and it did not take them. Commenter cannot 

now assert claims that could have on so many prior occasions been raised to the Agency and the 

courts. The CAA creates a system that leads to finality of standards and the comments challenging 

rules that are in some cases decades old is an impermissible attempt to upend that process. 

The NESHAP for Coke Oven Batteries (Subpart L and Subpart CCCCC) subject all HAP, 

including POM, emissions from coke ovens to MACT level of control.

8 During the rulemaking, the 

EPA identified coke oven emissions as including POM.9 EPA further confirmed the NESHAP 

control POM in the 2005 final rule for the Coke Oven Batteries NESHAP, in which the EPA states 

that “there is an established relationship between opacity and mass concentration of particles. In 

addition, sampling and analysis has shown that the PM in battery stack emissions contains HAP, 

including organic PM and PAH.”

10 The coke oven standards are also consistent with CAA section 

112(c)(8), which specifies minimum requirements for this category; section 112(c)(8) expressed 

these requirements in terms of visible emissions. Observation and engineering theory indicate that a 

reduction in visible coke oven emissions results in a reduction in mass emissions, therefore 

reductions in visible emissions will reduce emissions of POM.

B. Opposition to the Section 112(d)(2) Standards for Aerospace Coating Operations

Comment: Commenter 0014 disagrees with the EPA’s claim that total HAP is a surrogate 

for POM because “Total HAP” is not a pollutant and the EPA has not and cannot establish a valid 

surrogacy relationship between “total HAP” and POM. 

The commenter states that the EPA does not claim or provide data in the docket to show that 

POM is “invariably present” in the other HAP emitted; that the control approaches used to reduce 

other HAP in coatings reduce POM “indiscriminately”11 or that the methods used to control total 

HAP in surface coatings are the only methods that can be used to control POM. The commenter 

notes that the EPA claims that POM from these sources is naphthalene, which can be controlled in 

 

8

See 69 FR 48341.

9

57 FR 57535 (December 4, 1992).

10 See 70 FR 19994 and 70 FR 20007.

11 See 79 Fed. Reg. 74,678/2 (claiming only that total HAP is controlled, not that POM is).
7

both industrial and consumer applications by using naphthalene-free formulas, but notes that the EPA 

has not shown that using total HAP as a surrogate allows it to identify the best performers using low 

or non-naphthalene formulas, or to determine the maximum achievable reduction in naphthalene 

using these approaches.12 The commenter further argues that EPA has not addressed control methods 

other than formula changes, and therefore has not shown that methods to control total organic HAP 

are the only way to control POM. For example, the commenter states that surface coating operations 

also capture fugitive emissions using hoods, spray booths, ventilation systems which can then route 

captured pollutants to control devices like thermal oxidizers. But the commenter asserts that thermal 

oxidizers can actually increase POM emissions, because “it is well established that various POM,

such as PAHs can, in fact, be generated in such high temperature environments.”13

Additionally, the commenter states that the EPA provides no data to support the claim that no 

other POM other than naphthalene are emitted. The commenter also maintains that EPA incorrectly 

claims that naphthalene is a volatile organic compound (VOC) that will be captured by the VOC 

limits when naphthalene is only semi-volatile and may not be volatile under the conditions that 

obtain in aerospace surface coating operations.14 Thus, the commenter believes the EPA’s limit on 

total HAP will not capture changes in the POM emitted by these sources, or enable the EPA to 

identify the best performers, because measurements of VOCs will not capture the POM content of 

coatings. 

The commenter also takes issue with the EPA’s claim that total HAP from aerospace surface 

coating operations are “effectively controlled” by existing standards because the EPA does not say 

what degree of control must be required for control to be “effective”. The commenter also states that 

EPA does not claim that HAP are controlled to the maximum extent achievable or that POM is 

“effectively controlled,” let alone that it is controlled to the degree required by § 7412(d)(2)-(3). 15

Response: As explained below, this comment goes to the validity of the Aerospace NESHAP 

and not to the reasonableness of the EPA’s determination that it has established 112(d)(2)/(d)(4) 

standards for source categories that comprise at least 90 percent of the aggregate emissions of certain 

HAP to satisfy its obligations pursuant to section 112(c)(6). The comment is thus outside the scope of 

this rulemaking and no response is required. In the proposed section 112(c)(6) determination, the 

EPA characterized the section 307(d) rulemaking establishing section 112(d)(2)/(4) standards for 

aerospace coating operations and how those standards reduce the section 112(c)(6) HAP. The EPA 

was not reopening the comment period on the surrogate the EPA used to regulate HAP emissions 

from aerospace coating operations or the stringency of the MACT standards. The EPA is required by 

the CAA to justify surrogate and MACT standards at the time they are promulgated based on the 

record at that time. The commenter appears to argue that if the EPA were to propose the aerospace 

coating operations standards today the commenter would object because they maintain the standards 

do not represent MACT, based on information available today, and because the surrogate used to 

regulate HAP when the standards were promulgated is unlawful in its opinion. The commenter is 

essentially arguing that the EPA must determine anew, based on information not in the record or in 

many cases even available at the time the standards were issued, that the MACT standards the EPA 

included in the proposed section 112(c)(6) determination are consistent with the requirements of 

section 112(d)(2)/(4) and also that the EPA’s proposed section 112(c)(6) determination allows the 

 

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

13 Sahu Comments at 3.

14 See id. At 3-4.

15 79 Fed. Reg. 74,678/2.
8

commenter to raise issues that it should have raised during the comment periods for the aerospace 

coating operations rules. The commenter is incorrect. 

The aerospace coating operations were promulgated years ago, and the commenter could 

have raised its MACT and surrogate issues during the comment period for the aerospace coating 

operations rule based on the information that was available at the time. The commenter could have 

petitioned the EPA for reconsideration of the rules within 60 days of publication in the Federal 

Register under section 307(d)(7)(B) if the commenter believed the section 112(d)(2)/(4) standards, 

including the surrogate standards, applicable to aerospace coating operations did not comply with the 

requirements of CAA. The commenter could have challenged the surrogates and the section 

112(d)(2)/(4) standards in the D.C. Circuit. The commenter could have petitioned the EPA for 

rulemaking if it believed that the 1998 listing notice was the first time the public had notice of the 

fact that EPA was including aerospace coating operations in the section 112(c)(6) accounting. If the 

EPA did not respond to that petition in a timely manner, the commenter could have filed a complaint 

for unreasonable delay in U.S. district court. All of these avenues were available to the commenter 

and it did not take them. Commenter cannot now assert claims that could have on so many prior 

occasions been raised to the Agency and the courts. The CAA creates a system that leads to finality 

of standards and the comments on this issue attempt to upend that process.

Section 112(d)(2)/(4) standards applicable to aerospace coating operations control HAP 

emissions, including POM. 40 CFR Part 63, Subpart GG. POM is an organic HAP and the EPA 

established a total organic HAP standard. A reduction in total organic HAP includes a reduction in 

the POM emitted from aerospace coating operations.

The POM emitted by these sources is expected to be naphthalene and the amount emitted will 

depend on the coating formulation. Commenter notes that there are currently naphthalene-free 

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

formulas. The commenter fails to note, however, that the development of these naphthalene/POM

free coatings was at least in part in response to the requirement to reduce HAP emissions. The 

commenter has not demonstrated that the naphthalene-free products were available at the time the 

EPA established the standards or that naphthalene-free coatings are usable alternatives for all 

aerospace coating purposes. If such products were available at the time the EPA promulgated the 

rule, the commenter should have brought that information to the Agency’s attention during the 

comment period.

The EPA also disagrees with the commenter’s statement that the EPA “has not shown that 

methods to control total organic HAP are the only way to control POM.” To the extent that the 

comment views the total HAP standard as restricting the control option to only reformulation, the 

comment is incorrect. Surface coating operations also capture fugitive emissions using hoods, spray 

booths, ventilation systems which can then route captured pollutants to control devices like thermal 

oxidizers. The standard in fact includes multiple ways to control organic HAP emissions from 

coating operations such as reformulation and add-on controls or a combination of the two. However, 

as with most surface coating operations, the predominant strategy for meeting the standards remains 

reformulation because the surface coating operations are typically performed by painters. Add-on 

control devices are typically seen at sources using either robotic surface coating operations or when 

the surface coating operations are vented with other HAP-emitting processes to provide a 

concentrated emissions stream.
9

As part of the residual risk/technology review (RTR) of the aerospace MACT standards, the 

EPA developed an RTR modeling file which included total naphthalene emissions for all 

manufacturing and rework operations in the aerospace source category as the baseline emission for 

purposes of RTR. The EPA compared the 1990 naphthalene baseline emission inventory for the 

aerospace industry (79 FR 74661) to the more recent naphthalene emissions from the RTR modeling 

file. When the aerospace manufacturing and rework facilities MACT standard was promulgated (60 

FR 45952), the anticipated emission reductions from surface coating operations was 59 percent. 

From this comparative analysis we found that emissions of total naphthalene for all manufacturing 

and rework operations in the aerospace source category have been reduced by 99.96 percent since the 

updated 1990 baseline inventory. The results show that the MACT standards for aerospace coating 

operation, including the limits for total organic HAP have resulted in naphthalene reductions of a 

magnitude that would be achieved by the types of capture and control noted by the commenter and 

demonstrate that regulating total organic HAP has resulted in POM emissions reductions. In addition, 

the current RTR modeling file, which has been updated with the latest available information, shows 

no POM emissions other than naphthalene.

Similarly, based on current RTR modeling file data, emissions of total mercury compounds 

for all manufacturing and rework operations in the aerospace source category have been reduced by 

87.23 percent. 

C. Opposition to the Section 112(d)(2) Standards for Other Coating Operations

Comment: Commenter 0014 believes that the EPA’s claim that “total organic HAP” is a 

surrogate for POM is arbitrary because “total organic HAP” is not a pollutant, and the EPA has not 

established and cannot establish a valid surrogacy relationship between “total organic HAP” and 

POM from fabricated metal products, miscellaneous metal parts, coated and laminated paper and 

packaging, paper and other web coating, paint and allied products, wood household furniture 

manufacturing, transportation equipment manufacturing, shipbuilding and repair, and commercial 

printing. 

The commenter states that the EPA has not shown or explained how using total organic HAP 

as a surrogate for POM enables it to identify “the best achieving sources” or “what they can achieve” 

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

commenter states that the EPA does not claim or provide data in the docket to show that: POM is 

“invariably present” in the other HAP emitted; that the control approaches used to reduce other HAP 

in coatings reduce POM “indiscriminately”; or that the methods used to control total HAP in coating 

operating are the only methods that can be used to control POM. The commenter further asserts that

several U.S. manufacturers have developed naphthalene-free formulas for surface coatings used in 

both industrial and consumer applications.16 Similar to aerospace, the commenter maintains that the 

EPA has not addressed control methods other than formula changes, and therefore has not shown that 

methods to control total organic HAP are the only way to control POM. The commenter states 

surface coating operations also capture fugitive emissions using hoods, spray booths, ventilation 

systems, and other method which can be routed to control devices like thermal oxidizers.17 The 

commenter then asserts that thermal oxidizers can increase POM emissions, because “it is well 

 

16 See Sahu Comments at 4.

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

device to meet the emission limits.”
10

established that various POM, such as PAHs can, in fact, be generated in such high temperature 

environments.” 18

The commenter believes that the EPA’s claim that for all these sources “there was no 

technical basis . . . to differentiate between POM and other organic HAP”19 provides no support that 

it has established a surrogacy relationship and appears to be an admission that the agency has not 

done so, because if there is no “technical basis” to differentiate the pollutants, there can be no 

technical basis for establishing a surrogacy relationship between them. Moreover, the commenter 

argues that the Clean Air Act requires the EPA to differentiate between different HAPs, including 

POM20 and section 7412(c)(6) requires the maximum achievable reduction in the pollutants listed in 

that paragraph, including POM. The commenter states that whether the EPA believes there is a 

“technical basis . . . to differentiate” is irrelevant. Moreover the commenter asserts that EPA’s claim 

is arbitrary because the EPA in fact has established a chemical definition of POM, and the EPA does 

not deny that POM can be measured. Therefore, the commenter states that EPA’s claim that it cannot 

differentiate between POM and other pollutants is unsupported and illogical.

Response: As explained below, this comment goes to the validity of the various other 

coating operations NESHAPs and not to the reasonableness of the EPA’s determination that it has 

established 112(d)(2)/(d)(4) standards for source categories that comprise at least 90 percent of the

aggregate emissions of certain HAP to satisfy its obligations pursuant to section 112(c)(6). The 

comment is thus outside the scope of this rulemaking and no response is required. In the proposed 

section 112(c)(6) determination, the EPA characterized the section 307(d) rulemakings establishing 

section 112(d)(2)/(4) standards for the various other coating operations and how those standards 

reduce the section 112(c)(6) HAP. EPA was not reopening the comment period on the surrogates

EPA used to regulate HAP emissions from these other coating operations or the stringency of the 

MACT standards. EPA is required by the CAA to justify surrogate and MACT standards at the time 

they are promulgated based on the record at that time. The commenter appears to argue that if the 

EPA were to propose these other coating operations standards today the commenter would object 

because they maintain the standards do not represent MACT, based on information available today, 

and because the surrogate used to regulate HAP when the standards were promulgated is unlawful in 

its opinion. The commenter is essentially arguing that EPA must determine anew, based on 

information not in the record or in many cases even available at the time the standards were issued,

that the MACT standards the EPA included in the proposed section 112(c)(6) determination are 

consistent with the requirements of section 112(d)(2)/(4) and also that the EPA’s proposed section 

112(c)(6) determination allows the commenter to raise issues that it should have raised during the 

comment periods for these other coating operations rules. The commenter is incorrect. 

The various coating operations standards were promulgated years ago, and the commenter 

could have raised its MACT and surrogate issues during the comment period for those other coating 

operations rules based on the information that was available at the time. The commenter could have 

petitioned the EPA for reconsideration of the rules within 60 days of publication in the Federal 

Register under section 307(d)(7)(B) if the commenter believed the section 112(d)(2)/(4) standards, 

including the surrogate standards, applicable to the various coating operations did not comply with 

the requirements of CAA. The commenter could have challenged the surrogates and the section 

112(d)(2)/(4) standards in the D.C. Circuit. The commenter could have petitioned EPA for 

 

18 Sahu Comments at 3.

19 79 Fed. Reg. 74,678/2.

20 42 U.S.C. § 7412(c)(6).
11

rulemaking if it believed that the 1998 listing notice was the first time the public had notice of the 

fact that the EPA was including these coating operations in the section 112(c)(6) accounting. If the 

EPA did not respond to that petition in a timely manner, the commenter could have filed a complaint 

for unreasonable delay in U.S. district court. All of these avenues were available to the commenter 

and it did not take them. Commenter cannot now assert claims that could have on so many prior 

occasions been raised to the Agency and the courts. The CAA creates a system that leads to finality 

of standards and the comments on this issue attempt to upend that process. 

The EPA maintains that the section 112(d)(2)/(4) standards applicable to the various coating 

operations control HAP emissions, including POM, from those source categories. Total organic HAP

from fabricated metal products and transportation equipment manufacturing are regulated through 

MACT standards that limit the organic HAP emissions per gallon of coating solids deposited.21 Total 

organic HAP from paper and other web coatings (including coated and laminated paper and 

packaging) for existing sources are regulated through MACT standards that require one of the 

following: 1) limit emissions to no more than 5 percent of the mass of organic HAP applied each 

month (95 percent reduction); 2) limit the total mass of organic HAP in the coating materials, or the 

total mass of organic HAP emitted, to no more than 4 mass percent of the total mass of coating 

materials applied to the web substrate each month; or 3) limit the total mass of organic HAP in the

coatings, or the total mass of organic HAP emitted, to no more than 20 mass percent of the total mass 

of coating solids applied to web substrates each month.22 Total HAP emissions from paint and allied 

products are regulated by the requirement to install covers on vessels that store or process materials.23

Total HAP emissions from wood household furniture manufacturing are regulated by a ban on 

conventional spray guns.

24 Total volatile organic HAP emissions from shipbuilding and repair are 

regulated by a VOHAP content limit or the utilization of add-on controls as well as work practices to 

ensure that spills and leaks are minimized.

25 Finally, total HAP emissions from commercial printing 

are regulated by limiting the emissions to a percentage of the organic HAP applied each month.

26 All 

of these standards were set based on the best achieving sources for their respective categories at the 

time EPA established the standards. 

As with the aerospace coating sources, the POM emitted by these sources is expected to be 

naphthalene and the amount emitted will depend on the coating formulation. Commenter notes that 

there are currently naphthalene-free coatings and that some coating sectors have successfully 

transitioned to naphthalene-free coating formulas. The commenter fails to note, however, that the 

development of these naphthalene/POM free coatings was at least in part in response to the 

requirement to reduce HAP emissions. The commenter has not demonstrated that the naphthalenefree products were available at the time the EPA established the standards or that naphthalene-free 

coatings are usable alternatives for all coating purposes. If such products were available at the time 

the EPA promulgated the rules, the commenter should have brought that information to the Agency’s 

attention during the comment periods.

The EPA also disagrees with the commenter’s statement that “...EPA has not addressed 

control methods other than formula changes, and so has not shown that methods to control total 

organic HAP are the only way to control POM”. The standards discussed above include multiple 

 

21 69 FR 22605.

22 67 FR 72332.

23 74 FR 63508.

24 76 FR 72053.

25 60 FR 64339.

26 61 FR 27134.
12

ways to control organic HAP emissions from coating operations such as through requiring covers on 

processing equipment, emission limits on process equipment, and banning conventional spray guns. 

For example, the NESHAP for Wood Furniture Manufacturing Operations promulgated December 7, 

1995 (60 FR 62930) banned the use of air spray guns to reduce HAP emissions except in limited 

circumstances. Further, the risk and technology review of the Wood Furniture Manufacturing 

Operations NESHAP promulgated November 21, 2011 (FR 72058) states: “This final rule 

promulgates this ban on conventional spray guns with one modification. Based on comments 

received, we are retaining an existing provision allowing the use of conventional spray guns when 

the overspray is routed to a control device.” The ban on conventional spray guns reduces the amount 

of overspray, resulting in increased coating application efficiency and a reduction in coating 

emissions. These reductions apply to POM as well as other HAP. 

The commenter is correct in that “surface coating operations also capture fugitive emissions 

using hoods, spray booths, ventilation systems, and other methods [and] they can then route captured 

pollutants to control devices like thermal oxidizers.” Coating operations can capture emissions and 

route them to a control device as an alternative to meeting the standards discussed above. The 

commenter further states that “thermal oxidizers that are set up to reduce total HAP can actually 

increase POM emissions.” The EPA agrees that incomplete combustion can result in the generation 

of POM emissions, however, only a few sources collect fugitive emissions and route them to an 

incineration device, and lower POM emissions are expected because there will be less incomplete 

combustion of POM if there is a lower naphthalene content in the coatings. In wood furniture coating 

there is an exception that facilities may use a conventional spray gun if emissions are routed to an 

emission control device such as an RTO. The reductions from RTOs are expected to at least

comparable to a switch from a conventional spray gun to a more efficient gun. 

The EPA has performed a comparative analysis similar to the aerospace source category 

above by comparing the 1990 naphthalene baseline inventory for each applicable surface coating 

category (miscellaneous metal parts and products, plastic parts and products, printing and publishing, 

and shipbuilding and ship repair) to naphthalene emissions from either the most recent RTR

emissions modeling data or, for categories where RTR datasets were not available, the latest publicly 

released 2005 National-Scale Air Toxics Assessment (NATA) emissions data. The results are 

summarized in the table below and show that the MACT standards for these surface coating 

standards and their corresponding total organic HAP limits have resulted in significant naphthalene 

reductions and demonstrate that the standards control the POM emissions from these source 

categories. 

MACT Source Category Updated 1990 

112(c)(6) Baseline 

Naphthalene 

Emissions (TPY)

Current 

Naphthalene 

Emissions 

(TPY)

Estimated 

Emissions 

Reductions from 

MACT 

standards1

Reductions 

Realized from 

1990 Baseline 

Emissions

Miscellaneous Metal Parts & 

Products (Surface Coating) 107.0 29.302

48% 72.6%

Plastic Parts & Products 

(Surface Coating) 38.7 0.112

80% 99.7%

Printing/Publishing (Surface 

Coating) 28.7 0.043

31% 99.9%

Shipbuilding and Ship Repair 

(Surface Coating) 13.6 0.153

24% 98.9%

1

FR citation for anticipated emission reductions: Auto & Light Duty Truck - 69 FR 22618; Miscellaneous Metal Parts - 69 FR 153 ; Plastic Parts 

& Products - 69 FR 20986; Printing/Publishing - 61 FR 27132; Shi[building - 60 FR 64330.

2 NATA - 2005 National-Scale Air Toxics Assessment Emissions Data
13

3 Risk and Technology Review Emissions Modeling Data

D. Opposition to the Section 112(d) Standards for Pulp and Paper Kraft and Lime Kilns

Comment: Commenter 0014 disagrees with the EPA’s claim that “total HAP” is a surrogate 

for “organic HAP” which is a surrogate for POM from combustion processes at pulp and paper kraft 

recovery furnaces and lime kilns because the commenter believes that “Total HAP” is not a pollutant

and the EPA has not and cannot establish a valid surrogacy relationship between either of these and 

POM. 

The commenter states that the EPA has not shown or explained how using total organic HAP 

as a surrogate for POM enables it to identify “the best achieving sources” or “what they can achieve” 

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

commenter states that EPA does not claim or provide data in the docket to show that: POM is 

“invariably present” in the other HAP emitted; that the control approaches used to reduce other HAP 

in coatings reduce POM “indiscriminately”; or that the methods used to control total HAP in coating 

operating are the only methods that can be used to control POM.

The commenter states that EPA has not shown that using total HAP as a surrogate for POM 

enables it to identify “the best achieving sources” or “what they can achieve” with respect to POM. 

Sierra Club, 353 F.3d at 985; 42 U.S.C. § 7412(d)(2)-(3). Additionally, the commenter states that the 

EPA does not claim or provide data to show that POM is “invariably present” in the other HAP 

emitted by these sources or that “effective operation” of the furnaces or kilns will indiscriminately 

destroy POM along with other HAP.

27 Further, the commenter states that the same combustion

approaches will not be equally effective at controlling POM and other HAP from these sources 

because “there is no such thing as universal ‘good combustion’ because different combustion 

conditions are more propitious for different pollutants will require different conditions of temperature 

and residence time.”28 The commenter believes that this is especially true for POM from combustion 

sources, which is often present in particulate form, while the commenter believes that total HAP and 

total organic HAP from these sources are mostly gases. The commenter states that sources are free to 

comply with existing “total HAP” standards by reducing HAP other than POM (such as gaseous 

HAP) while reducing POM (including POM in particulate form) far less. The commenter believes 

this is likely, as “different combustion conditions are more propitious for different pollutants,” and 

gaseous pollutants like CO show an inverse relationship with PAHs as combustion conditions are 

altered.29 Moreover, the commenter states that on a mass or volume basis POM represents a very 

small percentage of total HAP emissions from these sources, so these sources can comply with the 

total HAP limits without significantly reducing their POM emissions.30

Additionally, the commenter states that the EPA’s surrogacy claim is unlawful and arbitrary 

because EPA does not claim that “good combustion” is the only method by which sources control 

POM. The commenter maintains that EPA concedes that end of stack equipment like thermal 

oxidizers may be employed these sources31 as an “equivalent control option”32 yet the commenter 

claims that the EPA provides no evidence that thermal oxidizers destroy POM or reduce emissions of 

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

 

27 See 79 Fed. Reg. 74,679/1.

28 Sahu Comment at 6; See also Mastral et al. (attached as Exhibit B).

29 Sahu Comment at 6 and 8.

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

31 79 Fed. Reg. 74,679/1 n.31.

32 Id.; see also 63 Fed. Reg. 18,504, 18,508.
14

decrease gaseous organic HAP.

33 Additionally, the commenter states that control devices like 

activated carbon injection, baghouses or ESPs can be used to reduce POM in particulate form, but are 

not effective in reducing gaseous organic HAP.34 Further, the commenters maintain that different fuel 

inputs produce different quantities and concentrations of POM. 35 The commenter concludes that 

because the measure that EPA relies on to reduce emissions of total HAP at these sources has not 

been shown to indiscriminately reduce POM emissions (and may cause POM emissions to increase) 

the surrogacy is unlawful and does not allow the EPA to determine what level of POM reduction is 

achievable, as required by section 7412(d)(2)-(3).

The commenter also states that the EPA appears to rely on a claim which the commenter 

maintains is irrelevant that POM and other HAP are “present together” in these combustion 

processes.36 The commenter believes that POM and other sources are “present together” does not 

show that POM is present in the other pollutants, that the methods for controlling other HAP 

indiscriminately control POM, or that the only methods to control POM are the methods used to 

control total HAP, as required to show a valid surrogacy relationship.

Lastly, the commenter believes that the EPA’s statement that there is no “technical basis for 

differentiating” between POM and other organic HAP37 provides no support to the EPA’s claim that 

it has established a surrogacy relationship between POM and any other pollutant and appears to be an 

admission that the agency has not done so, because if there is no “technical basis” to differentiate the 

pollutants, there can be no technical basis for establishing a surrogacy relationship between them. 

Moreover, the commenter argues that the Clean Air Act requires the EPA to differentiate between 

different HAPs, including POM,

38 and that section 7412(c)(6) requires the maximum achievable 

reduction in the pollutants listed in that paragraph, including POM. The commenter states that 

whether the EPA believes there is a “technical basis . . . to differentiate” is irrelevant. Moreover the 

commenter argues that EPA’s claim is legally irrelevant and arbitrary because EPA has established a 

chemical definition of POM and POM can be measured. The commenter then asserts that the EPA’s 

claim that it cannot differentiate between POM and other pollutants is unsupported and illogical.

Response: As explained below, this comment goes to the validity of the pulp and paper kraft 

and lime kilns (pulp and paper) NESHAPs and not to the reasonableness of the EPA’s determination 

that it has established 112(d)(2)/(d)(4) standards for source categories that comprise at least 90 

percent of the aggregate emissions of certain HAP to satisfy its obligations pursuant to section

112(c)(6). The comment is thus outside the scope of this rulemaking and no response is required. In 

the proposed section 112(c)(6) determination, the EPA characterized the section 307(d) rulemakings 

establishing section 112(d)(2)/(4) standards for pulp and paper and how those standards reduce the 

section 112(c)(6) HAP (63 FR 18504 and 66 FR 3180). The EPA was not reopening the comment 

period on the surrogate EPA used to regulate HAP emissions from pulp and paper operations or the 

stringency of the MACT standards. The EPA is required by the CAA to justify surrogate and MACT 

standards at the time they are promulgated based on the record at that time. The commenter appears 

to argue that if EPA were to propose the pulp and paper standards today the commenter would object 

because they maintain the standards do not represent MACT, based on information available today, 

and because the surrogate used to regulate HAP when the standards were promulgated is unlawful in 

 

33 Sahu Comments at 3.

34 Sahu Comments at 6; Standards of Performance for New Stationary Sources and Emission Guidelines for Existing Sources: Large Municipal 

Waste Combustors, 70 Fed. Reg. 75,348, 75,356 (Dec.19, 2005).

35 Sahu Comments at 6; Mastral et al.

36 79 Fed. Reg. 74,679/1.

37 79 Fed. Reg. 74,678/2.

38 42 U.S.C. § 7412(c)(6).
15

its opinion. The commenter is essentially arguing that EPA must determine anew, based on 

information not in the record or in many cases even available at the time the standards were issued, 

that the MACT standards the EPA included in the proposed section 112(c)(6) determination are 

consistent with the requirements of section 112(d)(2)/(4) and also that the EPA’s proposed section 

112(c)(6) determination allows the commenter to raise issues that it should have raised during the 

comment periods for these pulp and paper rules. The commenter is incorrect. 

The pulp and paper standards were promulgated years ago, and the commenter could have 

raised its MACT and surrogate issues during the comment period for the pulp and paper rules based 

on the information that was available at the time. The commenter could have petitioned the EPA for 

reconsideration of the rules within 60 days of publication in the Federal Register under section 

307(d)(7)(B) if the commenter believed the section 112(d)(2)/(4) standards, including the surrogate 

standards, applicable to the pulp and paper operations did not comply with the requirements of the 

CAA. The commenter could have challenged the surrogates and the section 112(d)(2)/(4) standards 

in the D.C. Circuit. The commenter could have petitioned EPA for rulemaking if it believed that the 

1998 listing notice was the first time the public had notice of the fact that EPA was including these 

pulp and paper rules in the section 112(c)(6) accounting. If the EPA did not respond to that petition 

in a timely manner, the commenter could have filed a complaint for unreasonable delay in U.S. 

district court. All of these avenues were available to the commenter and it did not take them.

Commenter cannot now assert claims that could have on so many prior occasions been raised to the 

Agency and the courts. The CAA creates a system that leads to finality of standards and the 

comments on this issue attempt to upend that process. 

The EPA maintains that the section 112(d)(2)/(4) standards applicable to the pulp and paper 

operations control the HAP emissions, including POM, from the source categories. Furthermore, the 

commenter appears to misunderstand the EPA’s approach to setting MACT standards in the Pulp & 

Paper sector. The subpart S NESHAP covers pulping and papermaking and the subpart MM 

NESHAP covers chemical recovery combustion sources. The EPA’s approaches recognize the 

difference between both the HAP pollutants and the equipment in subparts S and MM, and the 

regulations require controls that were developed for both source categories to complement each 

other.

For clarification, the NESHAP for the pulp and paper making sources (subpart S) requires 

that all emissions from pulp mill sources (e.g., digesters, evaporators, pulp washers, etc.) be collected 

and treated with one of four options that the EPA determined were equivalent at the time the rule was 

promulgated. The four options are 1) reduce total HAP emissions by 98 percent or more by weight, 

2) Reduce the total HAP concentration at the outlet of the thermal oxidizer to 20 ppm or less by 

volume, corrected to 10 percent oxygen on a dry basis, 3) reduce total HAP emissions using a 

thermal oxidizer designed and operated at a minimum temperature of 871 °C (1600 °F) and a 

minimum residence time of 0.75 seconds, or 4) reduce total HAP emissions using a boiler, lime kiln, 

or recovery furnace by introducing the HAP emission stream with the primary fuel or into the flame 

zone. In the case of subpart S, “total HAP” emissions mean all HAPs listed in CAA Section 

112(b)(1), which includes POM. Table 2 in the NESHAP for chemical recovery combustion sources 

at pulp mills (subpart MM) states “emission of total gaseous organic HAPs from these sources are 

regulated as part of the NESHAP for non-combustion sources at pulp and paper mills.” Therefore, 

the option for burning HAP emissions from other mill processes utilizing a recovery furnace or a 

lime kiln results in a minimum reduction of 98 percent of all HAPs, including gaseous organic HAPs 

and POMs, that enter these units. 
16

The subpart MM NESHAP requires recovery furnaces and lime kilns to meet a PM limit, as a 

surrogate for PM HAP, including HAP metals. Any POM generated as a result of incomplete 

combustion in these units is expected to be controlled using the emission control devices that are 

already in place for these units. Controls installed as a result of subpart MM have a 99 percent 

removal efficiency of PM, therefore the subpart MM NESHAP has regulated these sources for POM 

and reduced their POM emissions. Other shifts in technology such as the shift from direct contact 

evaporator recovery furnaces to non-direct contact evaporator recovery furnaces, and increased 

evaporator efficiency have further reduced the formation of POMs in the recovery furnace. Shifts to 

natural gas for lime kiln fuel use has further reduced the formation of POMs in the lime kiln.

The EPA defined the term “total HAP” to include all HAPs listed under section 112(b), (58 

FR 66078). Because the POM at these sources is expected to be generated in the combustion units 

and emitted in particulate form, the PM HAP standard in subpart MM regulates POM generated in 

these units. Any POM generated in other pulp mill processes and combusted in these units are 

required to have 98 percent destruction, therefore they are also regulated by subpart S. Gaseous 

POM and other gaseous HAP are destroyed by combustion in the regulated furnaces and kilns 

because the combustion temperature is much higher than the degradation temperature for POM.

Thermal oxidizers are an alternative to treat regulated gases from subpart S pulp mill processes (e.g., 

digesters, evaporators, etc.), The standard also requires the use of equipment that reduces the PM 

emissions from these units by 99 percent. 

In sum, the combustion process in the emission unit is used to destroy gaseous organic HAP 

from other processes, while the ESP and/or scrubbers are used to remove the POM in particulate 

form. All POM emissions generated from combustion are expected to be in particulate form, and the 

required PM controls will indiscriminately control PM. The MACT standards for recovery furnaces 

and lime kilns requires add-on control devices for PM HAP, which includes POM in particulate 

form. 

Finally, it is unclear to EPA what the commenter’s point is concerning the ability to monitor 

POM emissions. The CAA does not prohibit EPA from establishing a surrogate for a HAP if the 

HAP can be measured, and EPA did require monitoring of the surrogate standards.

E. Opposition to the Section 112(d)(2) Standards for the Refinery Source Category

Comment: Commenter 0014 believes that EPA’s claim that total organic HAP and total 

organic carbon, interchangeably, are surrogates for POM from refineries is arbitrary because neither 

“total organic HAP” nor “total organic carbon” is a pollutant and EPA has not established a valid 

surrogacy relationship between either of these and POM. The commenter stated that EPA’s claim 

that POM is a “constituent” of total organic carbon is a product of EPA having defined the surrogate 

“pollutant” so broadly that any organic compound is a “constituent.” See supra section IV. 

The commenter states that the EPA has not shown or explained how using total organic HAP 

and total organic carbon as a surrogate for POM enables it to identify “the best achieving sources” or 

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

(3). Additionally, the commenter states that EPA does not claim or provide data in the docket to 

show that POM is “invariably present” in any of the other pollutants that refineries can control to 

comply with this standard.
17

The commenter states that the standards for surrogates of POM are satisfied if refineries 

show a reduction in organic emissions using EPA Method 25A.39 The commenter asserts that Method 

25A measures gaseous organics40 and POM from combustion processes frequently takes the form of 

a particulate, not a gas.

41 The commenter states that EPA has not shown or claimed, that reductions 

in gaseous organic HAP will ensure the maximum achievable reduction in POM in the form of 

particulates. Further, the commenter states that there are alternative compliance provisions that allow 

refineries to comply with a total organic HAP limit in the rule under three scenarios and that EPA has 

not addressed the alternative compliance provisions or explained how these controls would achieve 

the maximum achievable reduction in emissions of POM.42

The commenter also states that the EPA’s claims that refinery combustion “indiscriminately 

and effectively destroy[s]” POM along with other organic compounds43 is arbitrary because the EPA 

provides no data to support it. The commenter states that the same combustion approaches will not be

equally effective at controlling POM and other organic HAP from these sources. According to 

commenters, “Different combustion conditions actually favor different emissions – there is no such 

thing as universal ‘good combustion’ because different combustion conditions are more propitious 

for different pollutants.” The commenter also states that “[S]ince the composition of the surrogates in 

these various HAP cannot be presumed to be same (different industries, different processes, etc.), 

requiring their effective destruction (i.e., as required by the respective NESHAP), will require 

different combustion conditions of temperature and residence time.” 44

The commenter believes that this is especially true for POM from combustion sources, which 

is often present in particulate form, while total HAP and total organic HAP from these sources are 

mostly gases. The commenter states that sources are free to comply with existing “total HAP” 

standards by reducing HAP (such as gaseous HAP) while reducing POM (including POM in 

particulate form) far less. The commenter believes this is likely, as “different combustion conditions 

are more propitious for different pollutants,” and gaseous pollutants like CO show an inverse 

relationship with PAHs as combustion conditions are altered. Moreover, the commenter maintains

that on a mass or volume basis POM represents a very small percentage of total organic HAP 

emissions from refineries, which means they can comply with the total organic HAP limits without 

significantly reducing their POM emissions.45

Additionally, the commenter states that the EPA’s surrogacy claim is also unlawful and 

arbitrary because the EPA does not claim that “combustion” is the only method by which sources 

control POM and that, in fact, refineries can employ control devices like activated carbon injection 

and baghouses or ESPs to reduce POM in particulate form but these are not effective in reducing

gaseous organic HAP.46 The commenter states that refineries can also employ end-of-stack 

equipment like thermal oxidizers to control their organic HAP emissions, but thermal oxidizers are 

known to increase POM as they decrease gaseous organic HAP.47 Further, the commenter states, that 

 

39 63 Fed. Reg. 48,890, 48,896.

40 EPA, Method 25A - Determination of Total Gaseous Organic Concentration Using a Flame Ionization Analyzer available at 

http://www.epa.gov/ttnemc01/promgate/m-25a.pdf.

41 Sahu Comments at 6.

42 Refineries can comply with total organic HAP if they use any of the following: (1) A boiler or process heater with a design heat input capacity 

of 44 megawatts (MW) or greater; (2) a boiler or process heater in which all vent streams are introduced into the flame zone; or (3) a flare that

complies with the requirements for the proper design and operation of flares in 63.11(b) of the NESHAP general provisions. 63 Fed. Reg. 48,896.

43 See 79 Fed. Reg. 74,679/1.

44 Sahu Comments at 6. See also Mastral et al.

45 Compare 60 Fed. Reg. 43,248, 43,246 with Topham Memo (in the docket) at 16-18.

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

47 Sahu Comments at 3.
18

different fuel inputs produce different quantities and concentrations of POM.

48 The commenter 

believes that EPA’s surrogacy claim is unlawful and arbitrary because methods used by refineries to 

control the surrogate pollutants do not indiscriminately control POM, or vice versa. Thus, according 

to the commenter, focusing on total HAP or total organic HAP does not allow the EPA to determine 

what level of POM reduction is achievable, as required by section 7412(d)(2)-(3).

The commenter believes that the EPA’s claim that for these sources there is no “technical 

reason to distinguish between POM and other organic compounds provides no support that it has 

established a surrogacy relationship and appears to be an admission that the agency believes it is not 

possible to define the relationship between these pollutants and determine the correlation between 

them. Additionally, the commenter states that the EPA has a legal obligation to identify “the best

achieving sources, and what they can achieve” with respect to POM.

49 Moreover, the commenter 

believes this claim is arbitrary because the “technical reason” to distinguish between POM and other 

organic HAPs, or organic carbon, is that POM is not present in the other pollutants, but POM 

responds differently to changes in combustion conditions and fuels, and is reduced by different endof-stack control methods.

Response: As explained below, this comment goes to the validity of the refineries NESHAPs 

and not to the reasonableness of the EPA’s determination that it has established 112(d)(2)/(d)(4) 

standards for source categories that comprise at least 90 percent of the aggregate emissions of certain 

HAP to satisfy its obligations pursuant to 112(c)(6). The comment is thus outside the scope of this 

rulemaking and no response is required. In the proposed section 112(c)(6) determination, the EPA 

characterized the section 307(d) rulemakings establishing section 112(d)(2)/(4) standards for 

refineries and how those standards reduce the section 112(c)(6) HAP. The EPA was not reopening 

the comment period on the surrogate the EPA used to regulate HAP emissions from refinery

operations or the stringency of the MACT standards. The EPA is required by the CAA to justify 

surrogate and MACT standards at the time they are promulgated based on the record at that time. The 

commenter appears to argue that if the EPA were to propose the refinery standards today the 

commenter would object because they maintain the standards do not represent MACT, based on 

information available today, and because the surrogate used to regulate HAP when the standards 

were promulgated is unlawful in its opinion. The commenter is essentially arguing that the EPA must 

determine anew, based on information not in the record or in many cases even available at the time 

the standards were issued, that the MACT standards the EPA included in the proposed section 

112(c)(6) determination are consistent with the requirements of section 112(d)(2)/(4) and also that 

the EPA’s proposed section 112(c)(6) determination allows the commenter to raise issues that it 

should have raised during the comment periods for the refinery rules. The commenter is incorrect. 

The refinery standards were promulgated years ago, and the commenter could have raised its 

MACT and surrogate issues during the comment period for the refinery rules based on the 

information that was available at the time. The commenter could have petitioned the EPA for 

reconsideration of the rules within 60 days of publication in the Federal Register under section 

307(d)(7)(B) if the commenter believed the section 112(d)(2)/(4) standards, including the surrogate 

standards, applicable to the refinery operations did not comply with the requirements of the CAA.

The commenter could have challenged the surrogates and the section 112(d)(2)/(4) standards in the

D.C. Circuit. The commenter could have petitioned the EPA for rulemaking if it believed that the 

1998 listing notice was the first time the public had notice of the fact that the EPA was including 

 

48 Id. at 6; Mastral et al.

49 Sierra Club, 353 F.3d at 985.
19

these refinery rules in the section 112(c)(6) accounting. If the EPA did not respond to that petition in 

a timely manner, the commenter could have filed a complaint for unreasonable delay in U.S. district 

court. All of these avenues were available to the commenter and it did not take them. The commenter 

cannot now assert claims that could have, on so many prior occasions, been raised to the Agency and 

the courts. The CAA creates a system that leads to finality of standards and the comments on this 

issue attempt to upend that process. 

The EPA maintains that the section 112(d)(2)/(4) standards applicable to the refinery 

operations control the HAP emissions, including POM, from the source category. The EPA’s 

approach to setting MACT standards in the refinery sector spans two MACT standards, Subpart 

UUU which covers catalytic cracking units, sulfur recovery units, and catalytic reforming units, and 

Subpart CC which covers all other sources at refineries. Each standard has a number of requirements 

associated with various emission source types.

For clarification, POM from refineries is attributed to a number of sources, including process 

vents, equipment leaks, storage tanks, and catalytic cracker regenerator emissions. Of the 

approximately 1000 tons of POM reported from refineries in the pre-MACT baseline, roughly 300 

tons (the largest single source of emissions of POM) were attributed to FCCU regenerator emissions, 

in which coke is burned off catalyst particles in a continuous process to reactivate the catalyst. 

Uncontrolled regenerator flue gases contain a high amount of CO along with other unburned 

hydrocarbons (including POM compounds.)50

Refinery MACT Subpart UUU uses CO as a surrogate for organic HAP and establishes an 

emission limit of 500 ppmv CO (dry basis). Some FCCU, referred to as complete-combustion FCCU, 

employ excess oxygen in the FCCU regenerator and are able to meet this emission limit without the 

need for a post-combustion device. Other FCCU, referred to as partial-combustion FCCU, do not 

supply enough air/oxygen for complete combustion of the coke to CO2 and, therefore, produce a 

significant quantity of CO in the regenerator exhaust. Partial-combustion FCCU are typically 

followed by a post-combustion unit, commonly referred to as a CO boiler, to burn the CO in the 

regenerator exhaust in order to meet the 500 ppmv CO limit (and to recover useful heat from the 

exhaust stream). Organic HAP in these units are primarily controlled through combustion and

complete combustion is indicated by CO concentrations at or below 500 ppmv. For this reason, the 

CO limit ensures that organic HAP, including POM, are reduced by the refineries standards.

Further, FCCU are also subject to PM limits under Refinery MACT Subpart UUU. POM not 

completely combusted in the combustion process will absorb onto particulates leaving the 

regenerator. The MACT particulate emission limit is aimed at reducing small particulates and is 

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

captured by cyclones in the regenerator and returned to the process. Therefore, the PM standard 

addresses POM that are adsorbed onto PM and controlled by PM control devices. Hence, the 

refineries standards reduce both gaseous POM as well as particulate-bound POM.

Other potential sources of POM at refineries include equipment leaks, storage vessels, and 

miscellaneous process vents. These sources are regulated by MACT Subpart CC and naphthalene is 

specifically included in the list of HAP regulated by Subpart CC in Table 1 of Subpart CC. One of 

the largest sources of HAP emissions regulated by Subpart CC is emissions from leaking components 

such as pipes, valves, and connectors. Evidence of leaks is found through work practice standards 

 

50 Locating and Estimating Sources of POM, section 4.5.1, page 4-283
20

that require the use of Method 21 leak detection or audio, visual or olfactory indications of leaks.

Regardless of how these are found, the MACT requires that leaks be repaired. Therefore, once a 

component is found to be leaking and repaired, the emissions are controlled, and any amount of POM 

in the process streams that are released are abated to the same level as other process stream 

components. Therefore, we maintain that control of equipment leaks will reduce organic HAP, 

including POM, once the leak is fixed.

Storage tanks are another potential source of POM emissions. Tank controls in MACT 

Subpart CC include use of floating roofs or routing the vents to control devices that reduce total 

organic HAP by at least 95 percent. The majority of storage vessels in refineries are controlled by the 

use of floating roof tanks. If POM is contained in process liquids that are stored in floating roof 

tanks, then these emissions are controlled like other HAP contained in the process fluids. 

F. Opposition to the Section 112(d)(2) Standards for Industrial Organic Chemicals 

Manufacturing and Naphthalene Productions

Comment: Commenter 0014 disagrees with the EPA’s claim that total organic HAP is a 

surrogate for POM from industrial organic chemicals manufacturing and naphthalene production51

because according to the commenter “total organic HAP” is not a pollutant and the EPA has not and 

cannot establish a valid surrogacy relationship between total organic HAP and POM. The commenter

also states that the EPA has not shown or explained how using total organic HAP as a surrogate for 

POM enables it to identify “the best achieving sources” or “what they can achieve” with respect to 

POM. Sierra Club, 353 F.3d at 985; 42 U.S.C. § 7412(d)(2)-(3).

The commenter believes that the EPA’s claim that combustion controls in the HON rule have 

“essentially the same performance regardless of the individual compound” is arbitrary because the 

EPA has provided no data or analysis to support it.52 The commenter states that the same combustion 

approaches will not be equally effective at controlling POM and other organic HAP from these 

sources because there is no such thing as universal ‘good combustion’ because different combustion 

conditions are more propitious for different pollutants and require different combustion conditions of 

temperature and residence time.53 The commenter notes that this is especially true for POM, because 

POM from combustion sources is often present in particulate form, while total HAP and total organic 

HAP from these sources are mostly gases. The commenter then concludes that sources are free to 

comply with the “total organic HAP” standards by reducing organic HAP (such as gaseous HAP) 

while reducing POM (including POM in particulate form) far less and notes that gaseous pollutants 

like CO show an inverse relationship with PAHs as combustion conditions are altered.54

Additionally, the commenter believes the EPA’s surrogacy claim is unlawful and arbitrary 

because the EPA does not claim that “combustion” is the only method by which sources control 

POM and in fact these sources can employ control devices like activated carbon injection and 

baghouses or ESPs that are not effective at reducing gaseous organic HAP, but can reduce POM in 

particulate form.

55 The commenter maintains that these sources can also employ end-of-stack 

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

 

51 79 Fed. Reg. 74,679/1- 2.

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

53 Sahu Comments at 6. See also Mastral et al.

54 Sahu Comments at 8.

55 Sahu Comments at 6; 70 Fed. Reg. at 75,356.
21

oxidizers are known to increase POM as they decrease gaseous organic HAP.56 The commenter states

that the EPA has acknowledged that control devices used by sources covered by the HON rule yield 

“higher level[s] of control for one particular HAP than for another.”57 Further, the commenter states 

that different fuel inputs produce different quantities and concentrations of POM.58 For these reasons, 

the commenter concludes that because the methods used to control the surrogate pollutants do not 

indiscriminately control POM, focusing on total organic HAP does not allow the EPA to determine 

what level of POM reduction is achievable (as required by section 7412(d)(2)-(3)) making the EPA’s 

surrogacy claim is unlawful and arbitrary in the commenter’s opinion.

The commenter states that the EPA claims that it cannot differentiate between POM and 

other pollutants and that such a claim is unsupported and illogical because the EPA has established a 

chemical definition of POM and does not deny that POM can be measured. The commenter argues

that EPA claims that POM from these categories cannot be distinguished from other organic HAP 

and that such claim is contradicted by the fact that the EPA set a separate POM limit for certain 

processes at Industrial Organic Chemicals Manufacturing and Naphthalene production sources —

specifically, wastewater. The commenter notes that EPA determined that the maximum achievable 

reduction in naphthalene in the wastewater released by these operations is 99 percent, and required 

that reduction by promulgating a separate POM limit for POM in wastewater because “different HAP 

compounds have different physical properties when mixed with water.”59 Commenter maintains that 

is equally true of POM in combustion processes and the commenter believes that EPA’s decision to 

set a standard for POM in wastewater but not in combustion processes is arbitrary.

Lastly, the commenter argues that the EPA’s claim that there is no “technical reason to make 

distinctions among various organic HAP”60 is irrelevant because whether there is a “technical 

reason” to distinguish is not the issue. The commenter states that the EPA has a legal obligation to do 

so by identifying “the best achieving sources, and what they can achieve” with respect to POM. 

Sierra Club, 353 F.3d at 985. Moreover, the commenter argues that the lack of a “technical reason” 

to distinguish between POM and other organic HAPs provides no support to the EPA’s claim that 

there is a surrogacy relationship between these pollutants. To the contrary, the commenter believes it 

appears to be an admission that the agency believes it is not possible to define the relationship 

between these pollutants and determine the correlation between them, if any. The commenter states 

that the “technical reason” to distinguish between POM and other organic HAPs is that POM is not 

present in the other pollutants, POM responds differently to changes in combustion conditions and 

fuels, and POM is reduced by different end-of-stack control methods.

Response: As explained below, this comment goes to the validity of the different industrial 

organic chemical manufacturing and naphthalene production (collectively “organic chemical 

manufacturing”) NESHAPs and not to the reasonableness of the EPA’s determination that it has 

established 112(d)(2)/(d)(4) standards for source categories that comprise at least 90 percent of the 

aggregate emissions of certain HAP to satisfy its obligations pursuant to 112(c)(6). The comment is 

thus outside the scope of this rulemaking and no response is required. In the proposed section 

112(c)(6) determination, the EPA characterized the section 307(d) rulemakings establishing section 

112(d)(2)/(4) standards for the organic chemical manufacturing source categories and how those 

standards reduce the section 112(c)(6) HAP. The EPA was not reopening the comment period on the 

 

56 Sahu Comments at 3.

57 59 Fed. Reg. 19,402, 19,420.

58 Sahu Comments at 6; Mastral et al.

59 79 Fed. Reg. 74,679/2.

60 79 Fed. Reg. 74,679/2.
22

surrogates the EPA used to regulate HAP emissions from organic chemical manufacturing operations 

or the stringency of those MACT standards. The EPA is required by the CAA to justify surrogate and 

MACT standards at the time they are promulgated based on the record at that time. The commenter 

appears to argue that if the EPA were to propose the organic chemical manufacturing standards today

the commenter would object because they maintain the standards do not represent MACT, based on 

information available today, and because the surrogate used to regulate the HAP when the standards 

were promulgated is unlawful in its opinion. The commenter is essentially arguing that the EPA must 

determine anew, based on information not in the record or in many cases even available at the time 

the standards were issued, that the MACT standards the EPA included in the proposed section 

112(c)(6) determination are consistent with the requirements of section 112(d)(2)/(4) and also that 

the EPA’s proposed section 112(c)(6) determination allows the commenter to raise issues that it 

should have raised during the comment periods for the organic chemical manufacturing rules. The 

commenter is incorrect. 

The organic chemical manufacturing standards were promulgated years ago, and the 

commenter could have raised its MACT and surrogate issues during the comment periods for the 

different organic chemical manufacturing rules based on the information that was available at the 

time. The commenter could have petitioned the EPA for reconsideration of the rules within 60 days 

of publication in the Federal Register under section 307(d)(7)(B) if the commenter believed the 

section 112(d)(2)/(4) standards, including the surrogate standards, applicable to the organic chemical 

manufacturing operations did not comply with the requirements of the CAA. The commenter could 

have challenged the surrogates and the section 112(d)(2)/(4) standards in the D.C. Circuit. The 

commenter could have petitioned the EPA for rulemaking if it believed that the 1998 listing notice 

was the first time the public had notice of the fact that the EPA was including these organic chemical 

manufacturing rules in the section 112(c)(6) accounting. If the EPA did not respond to that petition in 

a timely manner, the commenter could have filed a complaint for unreasonable delay in U.S. district 

court. All of these avenues were available to the commenter and it did not take them. Commenter 

cannot now assert claims that could have on so many prior occasions been raised to the Agency and 

the courts. The CAA creates a system that leads to finality of standards and the comments on this 

issue attempt to upend that process. 

The EPA maintains that the section 112(d)(2)/(4) standards applicable to the organic 

chemical manufacturing operations control the HAP emissions, including POM, from the source 

categories. MACT standards for industrial organic chemical manufacturing and naphthalene 

production source categories are set forth in Subparts F, G, H, and I. Subpart F includes general 

standards; Subpart G includes process vents, storage vessels, transfer operations, and wastewater; and 

Subparts H and I include equipment leaks. Each Subpart has requirements for different emission 

sources. 

Process vents are potential sources of POM. These sources are regulated by Subpart G. Air 

emissions from process vents are controlled by 1) reducing emissions of non-halogenated organic 

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

concentration of 20 parts per million by volume, whichever is less stringent, or 3) achieving and 

maintaining a TRE index value greater than 1.0 at the outlet of the final recovery device, or prior to 

release of the vent stream to the atmosphere if no recovery device is present. The control of total 

organic HAP was shown to be uniformly achievable by well-designed and operated combustion 

devices based on test data using the most difficult VOC compounds to combust, which included 
23

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

are to be regulated as POM. The controls used to comply with the total organic HAP requirement 

also control the identified POM.

Storage vessels are another potential source of POM emissions. Storage vessel controls in 

Subpart G include 1) an internal floating roof with proper seals and fittings, 2) an external floating 

roof with proper seals and fittings, 3) an external floating roof converted to an internal floating roof 

with proper seals and fittings, or 4) a closed vent system with a 95-percent efficient control device. If 

POM is contained in process liquid stored in floating roof tanks or closed vent systems, then POM 

emissions are controlled like other HAP contained in the process liquids.

Another potential source of POM emissions are transfer operations. Transfer operation 

controls in Subpart G include 1) using a control device to reduce emissions of total organic 

hazardous air pollutants by 98 weight-percent or to an exit concentration of 20 parts per million by 

volume, whichever is less stringent, 2) reducing emissions of non-halogenated organic HAP using a 

flare, 3) reducing emissions of organic hazardous air pollutants using a vapor balancing system 

designed and operated to collect organic hazardous air pollutants vapors displaced from tank trucks 

or railcars during loading; and to route the collected hazardous air pollutants vapors to the storage 

vessel from which the liquid being loaded originated, or to another storage vessel connected to a 

common header, or to compress and route to a process collected hazardous air pollutants vapors, or 

4) routing emissions of organic hazardous air pollutants to a fuel system or to a process where the 

organic hazardous air pollutants in the emissions shall predominantly meet one of, or a combination 

of, (i) recycled and/or consumed in the same manner as a material that fulfills the same function in 

that process; (ii) transformed by chemical reaction into materials that are not organic hazardous air 

pollutants; (iii) incorporated into a product; and/or (iv) recovered. If POM is contained in the liquid 

being transferred, then POM emissions are controlled like other HAP contained in the liquid.

Equipment leaks are another potential source of POM emissions which are regulated in 

Subparts H and I. Evidence of leaks is found through work practice standards that require the use of 

Method 21 leak detection or audio, visual, or olfactory indications of leaks. Regardless of how leaks 

are detected, Subparts H and I require that leaks be repaired. Therefore, once a component is found to 

be leaking and repaired it must be fixed so that the emissions are controlled, and all HAP, including 

POM, in the process streams that are released are abated. For this reason, the requirements for 

equipment leaks reduce organic HAP, including POM, from leaking processes.

G. Opposition to the Section 112(d)(2) Standards for Asphalt Roofing

Comment: Commenter 0014 takes issue with the EPA’s claim that total hydrocarbons (THC) 

are a surrogate for POM from asphalt roofing manufacturing62 because according to the commenter

“THC” is not a pollutant and the EPA has not established a valid surrogacy relationship between 

THCs and POM. 

The commenter believes that the EPA has not shown that using THC as a surrogate for POM 

enables it to identify “the best achieving sources” or “what they can achieve” with respect to POM. 

Sierra Club, 353 F.3d at 985; 42 U.S.C. § 7412(d)(2)-(3). The commenter also states that the EPA’s 

 

61 59 Fed Reg 19402

62 79 Fed. Reg. 74,679/3.
24

claim that emissions of POM are “controlled equally” with THCs63 is arbitrary because no record 

data or analysis supports it and notes that the EPA set THC standards as a surrogate for gaseous 

HAP, but POM is frequently emitted from combustion processes as a particle, not a gas. The 

commenter states that the EPA does not address end of stack controls, which the commenter states 

will not control POM and THCs “equally.”

The commenter believes that control devices like activated carbon injection and baghouses or 

ESPs can reduce POM in particulate form, but will need not be employed to meet a standard for 

gaseous organic HAP.64 The commenter, as previously mentioned, states that thermal oxidizers 

control organic HAP emissions, but are known to increase POM as they decrease gaseous organic 

HAP and as a result, focusing on THCs does not allow the EPA to determine what level of POM 

reduction achievable, as required by section 7412(d)(2)-(3) for asphalt roofing sources. 65

Finally, the commenter states that the EPA’s claim that POM are “effectively controlled” by 

standards for THCs66 does not say what degree of control must be required for control to be 

“effective,” and therefore is not the same as a claim that POM are controlled to the maximum extent 

achievable, as required by § 7412(d)(2)-(3). The commenter concludes stating that EPA’s claim that 

there was no technical reason to differentiate between POM and total hydrocarbons67 is unlawful and 

arbitrary for the reasons given with respect to other categories.

Response: As explained below, this comment goes to the validity of the asphalt roofing 

manufacturing NESHAP and not to the reasonableness of the EPA’s determination that it has 

established 112(d)(2)/(d)(4) standards for source categories that comprise at least 90 percent of the 

aggregate emissions of certain HAP to satisfy its obligations pursuant to 112(c)(6). The comment is 

thus outside the scope of this rulemaking and no response is required. In the proposed section 

112(c)(6) determination, the EPA characterized the section 307(d) rulemaking establishing section 

112(d)(2)/(4) standards for asphalt roofing manufacturing and how those standards reduce the section 

112(c)(6) HAP. The EPA was not reopening the comment period on the surrogate the EPA used to 

regulate HAP emissions from asphalt roofing operations or the stringency of the MACT standards.

The EPA is required by the CAA to justify surrogate and MACT standards at the time they are 

promulgated based on the record at that time. The commenter appears to argue that if the EPA were 

to propose the asphalt roofing standards today the commenter would object because they maintain 

the standards do not represent MACT, based on information available today, and because the 

surrogate used to regulate HAP when the standards were promulgated is unlawful in its opinion. The 

commenter is essentially arguing that the EPA must determine anew, based on information not in the 

record or in many cases even available at the time the standards were issued, that the MACT 

standards the EPA included in the proposed section 112(c)(6) determination are consistent with the 

requirements of section 112(d)(2)/(4) and also that the EPA’s proposed section 112(c)(6) 

determination allows the commenter to raise issues that it should have raised during the comment 

period for the asphalt roofing rule. The commenter is incorrect. 

The asphalt roofing standards were promulgated years ago, and the commenter could have 

raised its MACT and surrogate issues during the comment period for the asphalt roofing rule based 

on the information that was available at the time. The commenter could have petitioned the EPA for 

 

63 79 Fed. Reg. 74,678/2.

64 Sahu Comments at 6; 70 Fed. Reg. at 75,356.

65 Sahu Comments at 3.

66 79 Fed. Reg. 74,678/2.

67 79 Fed. Reg. 74,679/3.
25

reconsideration of the rule within 60 days of publication in the Federal Register under section 

307(d)(7)(B) if the commenter believed the section 112(d)(2)/(4) standards, including the surrogate 

standard, applicable to the asphalt roofing operations did not comply with the requirements of the 

CAA. The commenter could have challenged the surrogate and the section 112(d)(2)/(4) standards in 

the D.C. Circuit. The commenter could have petitioned the EPA for rulemaking if it believed that the 

1998 listing notice was the first time the public had notice of the fact that the EPA was including the

asphalt roofing rule in the section 112(c)(6) accounting. If the EPA did not respond to that petition in 

a timely manner, the commenter could have filed a complaint for unreasonable delay in U.S. district 

court. All of these avenues were available to the commenter and it did not take them. Commenter 

cannot now assert claims that could have on so many prior occasions been raised to the Agency and 

the courts. The CAA creates a system that leads to finality of standards and the comments on this 

issue attempt to upend that process. 

The EPA maintains that the section 112(d)(2)/(4) standards applicable to the asphalt roofing

operations control the HAP emissions, including POM, from the source category. The NESHAP for 

Asphalt Roofing requires that gaseous HAP emissions be collected and treated with one of six 

options 1) Reduce total hydrocarbon mass emissions by 95 percent, or to a concentration of 20 ppmv, 

on a dry basis corrected to 3 percent oxygen, 2) Route the emissions to a combustion device 

achieving a combustion efficiency of 99.5 percent, 3) Route the emissions to a combustion device 

that does not use auxiliary fuel achieving a total hydrocarbon (THC) destruction efficiency of 95.8 

percent, 4) Route the emissions to a boiler or process heater with a design heat input capacity of 44 

megawatts (MW) or greater, 5) Introduce the emissions into the flame zone of a boiler or process

heater or 6) Route emissions to a flare meeting the requirements of § 63.11(b).

POM is a subset of total THC and a reduction is total THC will reduce POM emissions. In 

addition, the types of controls necessary to achieve the emissions limits shown above would

necessarily include some type of combustion device, and those devices will achieve reductions in 

POM emissions.

H. Opposition to the Section 112(d)(2) Standards for RICE 

Comment: Commenter 0014 disagrees with the EPA’s claim that CO is a surrogate for POM 

from Reciprocating Internal Combustion Engines (RICE) because the commenter claims that the 

EPA has provided no data or analysis to support that combustion practices will control both CO and 

POM. The commenter also states that the EPA does not claim or provide data to show that POM is 

“invariably present” in CO or that POM emissions consistently increase or decrease with CO. In fact, 

the commenter believes that while CO emissions decrease as more oxygen is provided to a 

combustion process, PAH emissions have been shown to increase.68 Further, the commenter states

that these pollutants are controlled by different methods and asserts that POM from RICE is often a 

particulate and can thus be controlled by particulate filters or catalytic oxidizers, unlike CO.

Therefore, the commenter concludes that focusing on CO does not enable the EPA to identify “the 

best achieving sources” or “what they can achieve” with respect to POM. Sierra Club, 353 F.3d at 

985; 42 U.S.C. §7412(d)(2)-(3).

Response: As explained below, this comment goes to the validity of the RICE standards and 

not to the reasonableness of the EPA’s determination that it has established 112(d)(2)/(d)(4) 

standards for source categories that comprise at least 90 percent of the aggregate emissions of certain 

 

68 Sahu Comments at 7-8.
26

HAP to satisfy its obligations pursuant to 112(c)(6). The comment is thus outside the scope of this 

rulemaking and no response is required. In the proposed section 112(c)(6) determination, the EPA 

characterized the section 307(d) rulemaking establishing section 112(d)(2)/(4) standards for the RICE 

source category and how those standards reduce the section 112(c)(6) HAP. The EPA was not 

reopening the comment period on the surrogate the EPA used to regulate HAP emissions from RICE

or the stringency of the MACT standards. The EPA is required by the CAA to justify surrogate and 

MACT standards at the time they are promulgated based on the record at that time. The commenter 

appears to argue that if the EPA were to propose the RICE standards today the commenter would 

object because they maintain the standards do not represent MACT, based on information available 

today, and because the surrogate used to regulate HAP when the standards were promulgated is 

unlawful in its opinion. The commenter is essentially arguing that EPA must determine anew, based 

on information not in the record or in many cases even available at the time the standards were 

issued, that the MACT standards EPA included in the proposed section 112(c)(6) determination are 

consistent with the requirements of section 112(d)(2)/(4) and also that EPA’s proposed section 

112(c)(6) determination allows the commenter to raise issues that it should have raised during the 

comment period for the RICE rule. The commenter is incorrect. 

The above comments question the validity of the RICE standards in regulating POM. In the 

1998 notice, the EPA included this category among those counted towards meeting the 90 percent 

requirement for POM under section 112(c)(6). The EPA thereafter promulgated the standards for this 

category. The commenter could have raised its MACT and surrogate issues during the comment 

period for the RICE rule based on the information that was available at the time. The commenter 

could have petitioned the EPA for reconsideration of the rule within 60 days of publication in the 

Federal Register under section 307(d)(7)(B) if the commenter believed the section 112(d)(2)/(4) 

standards, including the surrogate standard, applicable to the RICE did not comply with the 

requirements of the CAA. The commenter could have challenged the surrogate and the section 

112(d)(2)/(4) standards in the D.C. Circuit. All of these avenues were available to the commenter and 

it did not take them. Commenter cannot now assert claims that could have on so many prior 

occasions been raised to the Agency and the courts. The CAA creates a system that leads to finality 

of standards and the comments on this issue attempt to upend that process. 

The EPA maintains that the section 112(d)(2)/(4) standards applicable to RICE control the 

HAP emissions, including POM and PAH, from the source category. Reductions in CO emissions 

will reduce organic HAP emissions, including POM and PAH. The EPA maintains that reductions in 

CO are indicative of reductions in organic HAP emissions from stationary RICE, which include 

POM and PAH.

69,70

I. Opposition to the Section 112(d)(2) Standards for Pesticide Production 

Comment: Commenter 0014 takes issue with the EPA’s claim that the pesticide productions 

standards satisfy the Agency’s obligations under §7412(c)(6) with respect to one half of the 

nationwide emissions of HCB. The commenter maintains that for this rule the EPA did not claim to 

be setting standards for Hexachlorobenzene (HCB), either directly or through surrogates and set only 

 

69 67 Fed. Reg. at 77,833, 77,839.

70 Memorandum from Melanie King, Energy Strategies Group, to Docket Number EPA-HQ-OAR-2008-0708. Response to Public Comments on 

Proposed National Emission Standards for Hazardous Air Pollutants for Existing Stationary Reciprocating Internal Combustion Engines Located 

at Area Sources of Hazardous Air Pollutant Emissions or Have a Site Rating Less Than or Equal to 500 Brake HP Located at Major Sources of 

Hazardous Air Pollutant Emissions. February 17, 2010. Document Number EPA-HQ-OAR-2008-0708-0367, p. 112.
27

a standard for organic HAP71 and the commenter argues that the EPA provided no record basis to 

support a surrogacy relationship between organic HAP and HCB in either that rulemaking or in its 

current proposal. The commenter notes that the pesticide production rule indicates that, to meet that 

rule, sources will use thermal incineration devices72 but notes that the EPA provides no evidence that 

incinerators destroy HCB or reduce emissions of HCB for any rule. The commenter emphasizes that 

the Agency for Toxic Substances and Disease Registry (ATSDR) has indicated that the incineration 

can create HCB73 and therefore concludes that for this rule, since the measure that the EPA relies on 

to reduce emissions of organic HAP has not been shown to reduce HCB emissions, and may cause 

HCB emissions to increase, organic HAP is not a valid surrogate for HCB emissions from this 

category and does not identify the best performing sources with respect to HCB. 

The commenter also states that the EPA’s claim that organic HAP is a surrogate for HCB 

emissions from pesticide manufacturers ignores that manufacturers of different pesticide products 

emit very different levels of HCB. For example the commenter states that manufacturers of Dacthal, 

emitted approximately 677 kg/year of HCB in the mid-1990s while manufacturers of simazine 

emitted less than 2 kg/year. Thus, the commenter believes lower emissions of HCB can be achieved 

based on the products that facilities choose to make and as a result pesticide manufacturers’ 

emissions of organic HAP do not identify the best performers with respect to HCB, what those 

sources are achieving with respect to HCB, or what can be achieved with respect to HCB through the 

full range of reduction measures that the Clean Air Act requires the EPA to consider when it sets 

standards under §7412(d). For this reason as well, the commenter believes organic HAP is not a valid 

surrogate.

Lastly, the commenter states that there is no evidence in the record that the EPA made any 

effort to evaluate pesticide manufacturers’ actual HCB emissions or set standards for these emissions 

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

either directly or through a surrogate. The commenter believes the agency’s attempt to make a 

surrogate claim is entirely conclusory, unsupported by any record evidence, and at odds with 

evidence that organic HAP is not a valid surrogate for HCB emissions from pesticide manufacturers.

Response: As explained below, this comment goes to the validity of the pesticide 

manufacturing NESHAPs and not to the reasonableness of the EPA’s determination that it has 

established 112(d)(2)/(d)(4) standards for source categories that comprise at least 90 percent of the 

aggregate emissions of certain HAP to satisfy its obligations pursuant to 112(c)(6). The comment is 

thus outside the scope of this rulemaking and no response is required. In the proposed section 

112(c)(6) determination, the EPA characterized the section 307(d) rulemaking establishing section 

112(d)(2)/(4) standards for pesticide manufacturing and how those standards reduce the section 

112(c)(6) HAP. The EPA was not reopening the comment period on the surrogate the EPA used to 

regulate HAP emissions from pesticide manufacturers or the stringency of the MACT standards. The 

EPA is required by the CAA to justify surrogate and MACT standards at the time they are 

promulgated based on the record at that time. The commenter appears to argue that if the EPA were 

to propose the pesticide manufacturing standards today the commenter would object because they

maintain the standards do not represent MACT, based on information available today, and because 

the surrogate used to regulate HAP when the standards were promulgated is unlawful in its opinion.

The commenter is essentially arguing that the EPA must determine anew, based on information not 

 

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

72 64 Fed. Reg. at 33585.

73 ATSDR Article at 235- 238.
28

in the record or in many cases even available at the time the standards were issued, that the MACT 

standards the EPA included in the proposed section 112(c)(6) determination are consistent with the 

requirements of section 112(d)(2)/(4) and also that the EPA’s proposed section 112(c)(6) 

determination allows the commenter to raise issues that it should have raised during the comment 

period for the pesticide manufacturing rule. The commenter is incorrect. 

The above comments question the validity of the MACT standards for pesticide active 

ingredient production in regulating POM. In the 1998 notice, the EPA included this category among 

those counted towards meeting the 90 percent requirement for POM under section 112(c)(6). The 

EPA subsequently promulgated the standards for this category in 1999, and the commenter could 

have raised its MACT and surrogate issues during the comment period for the pesticide 

manufacturing rule based on the information that was available at the time. The commenter could 

have petitioned the EPA for reconsideration of the rule within 60 days of publication in the Federal 

Register under section 307(d)(7)(B) if the commenter believed the section 112(d)(2)/(4) standards, 

including the surrogate standard, applicable to the pesticide manufacturing operations did not comply 

with the requirements of the CAA. The commenter could have challenged the surrogate and the 

section 112(d)(2)/(4) standards in the D.C. Circuit. All of these avenues were available to the 

commenter and it did not take them. Commenter cannot now assert claims that could have on so 

many prior occasions been raised to the Agency and the courts. The CAA creates a system that leads 

to finality of standards and the comments on this issue attempt to upend that process. 

The EPA maintains that the section 112(d)(2)/(4) standards applicable to the pesticide 

manufacturing operations control the organic HAP emissions, including HCB, from the source 

category. The potential largest source of HCB air emissions in pesticide production is as a byproduct 

impurity in process vents. Process vents are regulated in Subpart MMM.

The MACT standards for existing sources are 1) processes having uncontrolled organic HAP 

emissions greater than or equal to 0.15 megagrams per year (Mg/yr), must reduce organic HAP 

emissions by 90% per process or to outlet organic HAP concentration of less than or equal to 20 

ppmv TOC or 2) individual process vents meeting flow and mass emissions criteria that have gaseous 

organic HAP emissions controlled to less than 90% on or after November 10, 1007, must reduce 

gaseous organic HAP emissions by 98% per vent or to outlet organic HAP concentration of less than 

or equal to 20 ppmv TOC. In addition, processes that have uncontrolled hydrogen chloride (HCl) and 

chlorine emissions greater than or equal to 6.8 Mg/yr must reduce HCl and chlorine emissions by 

94% per process or to outlet HCl and chlorine concentration of less than or equal to 20 ppmv.

The MACT standard for new sources is processes having uncontrolled organic HAP 

emissions greater than or equal to 0.15 Mg/yr, must reduce organic HAP emissions by 98% per 

process or to outlet organic HAP concentration of less than or equal to 20 ppmv TOC. In addition, 

processes that have uncontrolled HCl and chlorine emissions greater than or equal to 6.8 Mg/yr, but 

less than 191 Mg/yr must reduce HCl and chlorine emissions by 94% per process or to outlet HCl 

and chlorine concentration of less than or equal to 20 ppmv. If the uncontrolled HCl and chlorine 

emissions are greater than 191 Mg/yr, must reduce HCl and chlorine emissions by 99% per process 

or to outlet HCl and chlorine concentration of less than or equal to 20 ppmv.

Thus, organic HAP and chlorinated emissions, including hexachlorobenzene, are controlled 

by the section 112(d)(2) requirements applicable to pesticide production.

J. Opposition to the Section 112(d)(2) Standards for Chlorinated Solvents Production
29

Comment: Commenter 0014 disagrees with the EPA’s claim that its section 112 rule for the 

synthetic organic chemical manufacturing industry (SOCMI) and certain other chemical 

manufacturers (the hazardous organic NESHAP or “HON rule”) satisfies its obligations under 

section 112(c)(6) with respect to approximately one half of the nationwide emissions of HCB. In the 

HON rule, the EPA acknowledged that HCB is emitted by chlorinated solvent production (a chemical 

manufacturing process) but did not purport to set standards for HCB. The commenter maintains that 

the EPA’s standards for organic HAP does not include HCB.

The commenter states that the EPA has provided no record basis – either in that rulemaking 

or in its current proposal – to support any kind of reasonable surrogacy relationship between organic 

HAP and HCB and notes that the EPA’s organic HAP standard was based on the alleged 

performance of a single “reference control technology,” a thermal incineration unit.74 Yet the EPA 

provides no evidence that incinerators destroy HCB or reduce emissions of HCB at all. The 

commenter goes on to say that the ATSDR has indicated that incineration can create HCB.75 The 

commenter then concludes that because the measure that the EPA relies on to reduce emissions of 

organic HAP at chlorinated solvent manufacturing facilities has not been shown to reduce HCB 

emissions, and may cause HCB emissions to increase, organic HAP is not a valid surrogate for HCB 

emissions from this category.

The commenter states that the EPA indicated in the HON rule that regulated sources deploy a 

wide variety of control devices other than incinerators, including inter alia absorbers, carbon 

absorbers, and condensers.76 Also according to the commenter, other such sources use fabric filters, 

scrubbers, carbon injection, or some combination of these technologies. Since these technologies, 

unlike incineration, may reduce HCB emissions, the commenter believes that the EPA’s organic 

HAP standard – which reflects only the level of organic HAP that the EPA associates with the use of 

incinerators – does not identify the best performing sources with respect to HCB, what those sources 

are achieving with respect to HCB, or what HCB level can be achieved by chlorinated solvent 

production facilities through the use of control technologies other than incinerators. For this reason as 

well the commenter states organic HAP is not a valid surrogate for HCB.

Another reason the commenter gives as to why organic HAP is not a valid surrogate for HCB 

is that all chlorinated solvent manufacturers produce different product and as a result emit different 

levels of HCB. The commenter states that the EPA’s organic HAP standard does not identify these 

sources, what these sources are achieving with respect to HCB, and what HCB levels can be 

achieved by chlorinated solvent production facilities that choose to produce products with lower 

HCB levels. 

Lastly, the commenter states that there is no evidence in the record that the EPA made any 

effort to evaluate chlorinated solvent manufacturers’ actual HCB emissions or set standards for these 

emissions either directly or through a surrogate because the EPA was not purporting to set standards 

for HCB, either directly or through a surrogate. The commenter believes the agency’s attempt to 

make a surrogate claim is entirely conclusory, unsupported by any record evidence, and at odds with 

evidence that organic HAP is not a valid surrogate for HCB emissions.

 

74 57 Fed. Reg. 62,608, 62,622, 62,636.

75 ATSDR Article at 235-38.

76 57 Fed. Reg. at 62,609.
30

Response: As explained below, this comment goes to the validity of the chlorinated solvents 

production NESHAPs and not to the reasonableness of the EPA’s determination that it has 

established 112(d)(2)/(d)(4) standards for source categories that comprise at least 90 percent of the 

aggregate emissions of certain HAP to satisfy its obligations pursuant to 112(c)(6). The comment is 

thus outside the scope of this rulemaking and no response is required. In the proposed section 

112(c)(6) determination, the EPA characterized the section 307(d) rulemakings establishing section 

112(d)(2)/(4) standards for chlorinated solvents production activities and how those standards reduce 

the section 112(c)(6) HAP. The EPA was not reopening the comment period on the surrogate the 

EPA used to regulate HAP emissions from chlorinated solvent production operations or the 

stringency of the MACT standards. The EPA is required by the CAA to justify surrogate and MACT 

standards at the time they are promulgated based on the record at that time. The commenter appears 

to argue that if the EPA were to propose the various chlorinated solvent production standards today 

the commenter would object because they maintain the standards do not represent MACT, based on 

information available today, and because the surrogate used to regulate HAP when the standards 

were promulgated is unlawful in its opinion. The commenter is essentially arguing that the EPA must 

determine anew, based on information not in the record or in many cases even available at the time 

the standards were issued, that the MACT standards the EPA included in the proposed section 

112(c)(6) determination are consistent with the requirements of section 112(d)(2)/(4) and also that 

the EPA’s proposed section 112(c)(6) determination allows the commenter to raise issues that it 

should have raised during the comment periods for the chlorinated solvent production rules. The 

commenter is incorrect. 

The chlorinated solvent production rules were promulgated years ago, and the commenter 

could have raised its MACT and surrogate issues during the comment periods for the different 

chlorinated solvent production rules based on the information that was available at the time. The 

commenter could have petitioned the EPA for reconsideration of the rule within 60 days of 

publication in the Federal Register under section 307(d)(7)(B) if the commenter believed the section 

112(d)(2)/(4) standards, including the surrogate standard, applicable to chlorinated solvent 

production activities did not comply with the requirements of the CAA. The commenter could have 

challenged the surrogate and the section 112(d)(2)/(4) standards in the D.C. Circuit. The commenter 

could have petitioned the EPA for rulemaking if it believed that the 1998 listing notice was the first

time the public had notice of the fact that the EPA was including the chlorinated solvent production 

source categories in the section 112(c)(6) accounting. As stated in the preamble to this final 

determination, the commenter did petition the EPA to revise the regulations for the synthetic 

organic chemical manufacturing industry (SOCMI) category on the basis that these standards meet 

section 112(c)(6) obligation for HCB. The EPA denied the petition in a timely manner and the 

commenter did not contest that determination. Commenter cannot now assert claims that could have 

on so many prior occasions been raised to the Agency and the courts. The CAA creates a system that 

leads to finality of standards and the comments on this issue attempt to upend that process.

The EPA maintains that the section 112(d)(2)/(4) standards applicable to chlorinated solvent 

production activities control the HAP emissions, including HCB, from the source categories.

77

MACT standards for chlorinated solvents production are in Subparts F, G, H, and I. Subpart 

F includes general standards; Subpart G includes process vents, storage vessels, transfer operations, 

 

77 64 FR 33549 (June 23, 1999)
31

and wastewater standards; and Subparts H and I include equipment leak standards. Each Subpart has 

requirements for different emission sources.

The five chlorinated solvent production processes identified as creating an HCB by-product 

impurity include carbon tetrachloride, perchloroethylene, trichloroethylene, ethylene dichloride, and 

1,1,1-trichloroethane.

78 These five processes account for the 1990 HCB emission inventory baseline 

for chlorinated solvents production. In addition, they are listed in Table 1 of Subpart F. Also, 

hexachlorobenzene is listed as an organic HAP in Table 2 of Subpart F.

The potential largest source of HCB air emissions in chlorinated solvents manufacturing is in 

process vents. HCB forms during thermal chlorination, oxychlorination, and pyrolysis when carbon 

and chlorine react at high temperatures. The HCB by-product impurity is found in air emissions from 

the distillation column.

79 Process/distillation column vents are regulated in Subpart G and controlled 

by (1) reducing emissions of total organic HAP by 98 weight-percent or to a concentration of 20 

parts per million by volume, whichever is less stringent or (2) achieving and maintaining a TRE 

index value greater than 1.0 at the outlet of the final recovery device, or prior to release of the vent 

stream to the atmosphere if no recovery device is present. Additionally, halogenated process vents 

are controlled by (1) routing the combustion device gas exit stream to a halogen reduction device, 

such as a scrubber, to reduce hydrogen halide and halogen emissions by 99% (95% for devices 

installed prior to December 31, 1992) or to less than 0.45 kilogram per hour (kg/hr) or (2) using a 

halogen reduction device, such as a scrubber, to reduce vent stream halogen atom mass emission rate 

to less than 0.45 kg/hr prior to routing to any combustion control device. For halogenated streams, 

the reference control technology not only utilized thermal incineration, but also acid gas scrubbing80.

The combinations of controls that are necessary to comply with these standards reduces organic 

HAP, including HCB, from chlorinated solvents production activities.

K. Opposition to the Section 129 Standards for Municipal Waste Combustors

Comment: Commenter 0014 disagrees with the EPA’s claim that is has already made a 

surrogacy determination81 because the EPA did not claim in the cited rule to have set MACT limits 

for POM and PCB through surrogates but claimed only that POM and PCB emissions are 

“effectively controlled”.82 The commenter states that the EPA did not say what degree of control 

must be required for control to be “effective,” and did not claim that POM and PCBs are controlled 

to the maximum extent achievable, as required by § 7412(d)(2)-(3). Further, in response to comments 

on that rule, the commenter notes that the EPA denied that it was setting surrogate MACT standards 

for POM or PCBs: “EPA does not believe that either section 129 or section 112(c)(6) require it to 

establish numerical limits for PCB and POM emissions from large MWC in order to take credit for 

reductions in emissions of those pollutants arising from compliance with the large MWC NSPS and 

emission guidelines in fulfilling its obligations under section 112(c)(6). In addition, that commenter 

states EPA did not purport to use other pollutants emitted by large MWC as surrogates for PCB and 

POM.” 83

 

78 Estimation of National Hexachlorobenzene Emissions for 1990, page 3-1

79 Estimation of National Hexachlorobenzene Emissions for 1990, page vii

80 57 Fed. Reg 62,629

81 79 Fed. Reg. 74,678 (citing 70 Fed. Reg. 75,348, 75,356).

82 70 Fed. Reg. 75,356. 79 Fed. Reg. 74,678 (citing 70 Fed. Reg. 75,348, 75,356).

83 EPA, Standards of Performance for New Stationary Sources and Emission Guidelines for Existing Sources: Large Municipal Waste 

Combustors, Summary of Public Comments and Responses for December 19, 2005, EPA-HQ-OAR-2005-0117-0134.
32

The commenter concludes that the EPA still has not set MACT standards for emissions of 

POM or PCBs from large municipal waste combustors, either directly or through a surrogate. 

Therefore the EPA’s claim to have satisfied its obligations under section 7412(c)(6) is unlawful and 

arbitrary.

Response: As explained below, this comment goes to the validity of the section 129 

standards for large municipal waste combustors (MWC) and not to the reasonableness of the EPA’s 

determination that it has established MACT standards for source categories that comprise at least 90 

percent of the aggregate emissions of certain HAP to satisfy its obligations pursuant to section 

112(c)(6). The comment is thus outside the scope of this rulemaking and no response is required. In 

the proposed section 112(c)(6) determination, the EPA included the section 129 standards for MWC.

The EPA was not reopening the comment period for that rule by noting that the MWC standards 

establish MACT standards for pollutants the control of which control the section 112(c)(6) HAP

emitted from the source category. 

The large MWC standards were promulgated years ago, and the commenter could have raised 

concerns with the stringency of the MACT standards on which the EPA relies in the proposed section 

112(c)(6) determination based on the information that was available at the time. The commenter 

could have petitioned the EPA for reconsideration of the rule within 60 days of publication in the 

Federal Register under section 307(d)(7)(B) if the commenter believed the section 129 standards 

applicable to the large MWC did not comply with the requirements of the CAA. The commenter 

could have challenged MACT standards in the D.C. Circuit. In the 1998 notice, the EPA identified 

this category among those counted towards meeting the 90 percent requirement for POM and PCB 

under section 112(c)(6). The EPA explained in that notice that section 129 standards, including the 

MWC standards, are equivalent to section 112(d)(2) standards and are therefore appropriate for 

section 112(c)(6) purposes. In 2001, the EPA denied the commenter’s petition to revise the MACT 

standards on the basis that those standards meet the section 112(c)(6) obligation with respect to POM 

and PCB. The commenter could have but did not challenge the Agencies denial of its petition.

Commenter cannot now assert claims that could have on so many prior occasions been raised to the 

Agency and the courts. The CAA creates a system that leads to finality of standards and the 

comments on this issue attempt to upend that process. 

The EPA maintains that the section 129 MACT standards applicable to large MWC control 

POM and PCB emissions from the source category. While the rule does not identify specific limits 

for POM and PCB, we continue to take the view that emissions of those pollutants are nonetheless 

‘‘subject to regulation’’ for purposes of Section112(c)(6) because these pollutants are effectively 

controlled by the same control measures used to comply with the MACT standards established for 

the CAA section 129 pollutants. Specifically, as byproducts of combustion, POM and PCBs are

effectively controlled by good combustion and post-combustion practices that are necessary to 

comply with the CAA Section 129 standards. We also believe that CO serves as an effective measure 

for good combustion and as an indicator for POM and PCBs, because those HAP are byproducts of 

poor combustion. The MWC rule established specific CO emission limits. We also believe that the 

post-combustion controls used to comply with the numerical emission limits established for Hg and 

dioxin/furans serve to further control PCB emissions because the pollutants act similarly and that the 

controls necessary to reduce Hg and dioxin/furans will also control POM and PCBs. The 

combination of spray dryer, PM control (fabric filter or ESP) and activate carbon injection is a

typical post-combustion controls configuration at MWC, and such controls will greatly reduce 

emissions of these organic pollutants, as well as Hg and dioxin/furan emissions. Based on postMACT compliance tests at MWC units, Hg emissions have been reduced by 95 percent and 
33

dioxin/furans emissions by greater than 99 percent from pre-MACT levels. The EPA’s Municipal 

Waste Combustion Study – Flue Gas Cleaning Technology (EPA/530/SW-021d; table 4-6; EPA-HQOAR-2005-0117-0137) lists control levels exceeding 99 percent in most cases for all of these organic 

compounds.” The effective control of POM and PCBs by the application of MACT was confirmed 

by POM and PCB emission tests conducted at a large MWC unit equipped with MACT controls 

which showed non-detectable levels of the pollutants (EPA-HQ-OAR-2005-0117-0025). Thus, while 

the MWC rule does not identify specific limits for POM and PCBs, they are for the reasons noted 

“subject to regulation” for the purposes of CAA Section 112(c)(6).