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OAR Box 1875 

Prepped by Ollie Stewart 

Document Number: 

18) ll-E-36 

Docket Number: 

A-90-19 

Printed 12/1/2008 11:12:44 AM Sheet 18 of 86 
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* ' A-90-19 

ll-E-36 

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 

M K ^ j- Office of Air Quality Planning and Standards 

\ ^%Yd- " Research Triangle Park, North Carolina 27711 o 

HAR 0 4 1992 

MEMORANDUM 

fr' i 0EC \ B r392 

&M-±jyO.~o ••••• 

SUBJECT: November 5, 1991 Meeting on Legal Issues Associated 

with the Hazardous Organic NESHAP 

FROM: Daphne L. McMurrer^^^ 

TO: The Files 

On November 5, 1991 several members of the Office of Air 

Quality Planning and Standards (OAQPS) and the Office of General 

Counsel (OGC) met with representatives of industry and public 

interest groups. Table 1 provides a list of the those who 

attended the meeting and their affiliations. 

This meeting was held to discuss the legal issues associated 

with the National Emission Standards for Hazardous Air Pollutants 

(NESHAP) for Source Categories: Synthetic Organic Chemical 

Manufacturing Industry (SOCMI) and Seven other Source Categories. 

This regulation is commonly known as the Hazardous Organic 

NESHAP, or HON. 

Specifically, the topic of discussion was the emissions 

averaging policy for the HON, and if it is legally justifiable 

under the 1990 amendments to the Clean Air Act. The following 

issues were raised and discussed: (1) What constitutes a source, 

source category, or major source; (2) can a source be plantwide; 

(3) can emissions averaging be plantwide; (4) can averaging be 

allowed across different pollutants or source categories; (5) how 

should the source's floor be determined; (6) could averaging 

cause non-compliance with floor requirements; (7) are any cutoffs 

permissible; (8) should averaging be permitted for new sources; 

(9) should a discount factor be required in an average to reflect 

potential cost savings; and (10) if a discount factor is 

required, how should the value be determined. 
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# 4 

Following the meeting, Ms. Nancy Cookson, of the Chemical 

Manufacturers Association, sent a letter commenting on some of 

the issues discussed at this meeting to Mr. Michael Winer, of 

OGC. This letter is provided as an attachment to this 

memorandum. 

Attachment 
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TABLE 1 

Name Affiliation 

Michael Winer 

Nancy Cookson 

Shannon Wagner-Broone 

Bill Becker 

Thomas R. Merlino 

Daphne McMurrer 

Raymond B. Ludwiszewski 

Larry Weinstock 

Karen Schapiro 

Carl Mazza 

Lydia Wegman 

Andrew Otis 

Alan Eckert 

Patricia Embrey 

David Doniger 

Ellen Siegler 

OGC/EPA 

CMA 

Swidder & Barden PMA 

STAPPA/ALAPCO 

MVMA 

EPA/OAQPS 

OGC/EPA 

OAR/EPA 

OE/AIR/EPA 

OAR/EPA 

OAQPS/ESD 

OPPE/EPA 

OGC/EPA 

OGC/EPA 

NRDC 

API 

API = American Petroleum Institute 

CMA = Chemical Manufacturers Association 

EPA = Environmental Protection Agency 
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CHEMICAL MANUFACTURERS ASSOCIATION 

December 6, 1991 

Mr. Michael S, Winer, Esq. 

Office of General Counsel 

Air and Radiation Division 

LE-132A 

U.S. Environmental Protection Agency 

401 M Street, S.W. 

Washington, D.C. 20460 

Dear Mr. Winer: 

This letter is in follow-up to the meeting held at EPA on November 

5, 1991, to discuss the legal issues surrounding implementation of EPA's 

HON Emissions Averaging Proposal. Four "legal" issues were raised 

during the meeting: definition of source, emissions averaging 

compatability with the floor, the 10% discounting factor, and de 

minimis cutoffs. Each of these issues is addressed in the following 

comments. 

First, although CMA agrees that EPA has the discretion to define 

"source" broadly, CMA does not agree that emissions trading must be 

limited to emission points within a single source category. Trading 

among source categories is also allowable under the statute. 

The ultimate test of the adequacy of compliance with MACT is at 

the level of the "major source," which EPA may define for purposes of 

the emissions averaging program to be the entire contiguous facility. 

So long as the facility as a whole achieves MACT, the level of control 

achieved by any individual emission point or group of emission points 

within the facility is irrelevant. MACT for the contiguous facility 

will simply be the total emissions level authorized under all of the 

MACT standards applicable to that facility. EPA is already employing 

this "summing of MACT" method in developing MACT requirements within 

source categories. There is no logical reason why the same method may 

not be used to calculate a "summed" MACT for a contiguous facility that 

happens to include units in more than one source category. 

EPA Has the Discretion to Define Source to Include the Entire HON 

EPA has the discretion, for purposes of a HON emissions averaging 

program, to define "source category" as SOCMI, and "source," as the 

"contiguous SOCMI Product Processes under common control." In 

Chevron, the Supreme Court confirmed that EPA has the discretion to 

define the term "source" under the Clean Air Act in a manner that the 

Agency finds best implements the purposes of the statute. This 

discretion extends, where EPA deems it appropriate, to an entire 

contiguous facility. 

2501 M Street, NW, Washington, DC 20037 202-887-1100 Telex 89617 (CMA WSH) 
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Section 112(d) requires EPA to promulgate MACT standards for "each 

category or subcategory of major sources ... " Section 112(a)(1), in 

turn, defines "major source" as 

"any stationary source or group of stationary sources located 

within a contiguous area and under common control that emits or 

has the potential to emit considering controls, in the aggregate, 

10 tons per year or more of any hazardous air pollutant or 25 tons 

per year' or more of any combination of hazardous air pollutants." 

42 U.S.C. § 7412(a)(1) (emphasis added). Under this definition, there 

can be little question of EPA's authority to define "major source" to 

include any collection of individual emissions points, including an 

entire plant. (Section 112(a)(3) provides that the term "stationary 

source" is to have the same definition as it has under section 111(a), 

i.e., as "any building, structure, facility, or installation which 

emits or may emit any air pollutant.") 

Section 112(i) then requires the "sources" for which MACT 

standards have been established to comply with those standards. 

Nothing in the statute requires either the standards themselves or 

sources' compliance with those standards to be on an emission point 

basis. 

This interpretation of the applicable statutory provisions is 

consistent with the shift in focus incorporated in the 1990 

Amendments. Under the old NESHAP program, hazardous air pollutants 

were regulated on a pollutant-by-pollutant basis, with the primary 

focus inevitably falling on emission points of individual pollutants. 

Under the new MACT program, in contrast, the emphasis is instead on 

regulation of categories of sources, many of which emit more than one 

hazardous air pollutant. EPA is directed to identify categories and 

subcategories of source types and then to promulgate emission standards 

applicable to those categories and subcategories. The statute accords 

EPA considerable discretion in accomplishing this task. The Agency 

may, for example, establish both categories that include entire plants 

and categories (or subcategories) that include only certain processes 

and equipment within a plant. 

The statute clearly does not contemplate that subcategorization 

must be taken down to the individual emission point level. Indeed, 

section 112(c)(1) encourages EPA to define source categories and 

subcategories to coincide with the existing categories under section 

111 and Part C. Most of those categories are based on entire plants or 

large groupings of sources within plants rather than on individual 

pieces of equipment. 

That is not to say that EPA does not have the discretion to 

promulgate a MACT "standard" for a major source that is in fact a set 

of separate requirements applicable to different emission points within 

the broader "major" source. However, since the statute plainly 

authorizes EPA to establish a single emission standard for the entire 

"major source," it logically follows that the Agency may also 

promulgate and implement its requirements for individual emission 
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points in a manner that establishes an emissions level for the entire 

major source or some portion of it. 

In promulgating MACT standards under section 112(d), EPA is 

directed to consider "the cost of achieving [a particular] emission 

reduction, and any non-air quality health and environmental impacts and 

energy requirements . . ." 42 U.S.C. § 7412(d)(2). MACT standards are 

not to be promulgated in a vacuum; instead, EPA is charged with 

identifying the most efficient manner of achieving the desired level 

of emission reductions. See S. Rep. No. 228, 101st Cong., 1st Sess. 

167 (1989) (calling for application of "the maximum degree of reduction 

in emissions for each pollutant which is achievable by the sources in 

the category, taking cost and other factors into account"). There will 

doubtless be many cases in which one can identify a "maximum degree of 

reduction in emissions" that is generally appropriate for "sources in 

the category" but that the most efficient manner for each source in the 

category to meet that level of reduction, "taking cost and other 

factors into account," will vary. To the extent that emission 

averaging is, ultimately, an efficiency-enhancing tool, it can become 

an important element of EPA's promulgation and implementation of MACT 

requirements. 

The HON Emissions Averaging Proposal is Compatible With a MACT Floor 

EPA's HON emissions averaging proposal is compatible with the MACT 

floor. Under section 112(d)(3), existing source MACT must be no less 

stringent than "the average emission limitation achieved by the best 

performing 12 percent of existing sources" in the "same category or 

subcategory," excluding sources that have recently complied with LAER 

or BACT. (For categories containing fewer than 30 sources, the floor 

is the average emission limitation achieved by the best performing five 

sources.) For new sources in the category or subcategory, the floor is 

the "emission control that is achieved in practice by the best 

controlled similar source." 

Since these floors are calculated with reference to source 

"categories or subcategories," it follows that the term "source" in 

this provision again refers to the categories and subcategories of 

"major" sources. The clear intent of this provision is to ensure that 

major sources (i.e., large sources or groups of sources within a 

contiguous area and under common control) meet some standard of control 

-- not that every single emission point within a "major source" 

individually apply the control. 

There is, accordingly, no conflict between the concept of a MACT 

emissions averaging program and the MACT floors established under 

section 112(d)(3). The MACT floors at most require that EPA ensure 

that emissions trading is not used in a manner that allows the total 

emissions from the "major source," to exceed the level of control 

achieved by the best-performing 12 percent of similar "major" sources 

(or, in the case of new source, the best-performing source). Averaging 

of emissions from emission points and subgroupings of sources within 

the major source would not conflict with this requirement, so long as 

the total emissions complied with applicable MACT limits. In other 

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words, the MACT floor simply establishes the floor for the MACT 

standards applicable to a major source, which in turn establish the 

floor for the major source's total level of control. 

EPA Should Not Apply a Discounting Factor to the Emissions Averaging 

Program 

EPA's Emission Averaging Proposal suggests that a "10% discounting 

factor be applied to all emissions averaging under the HON." It is 

clear that EPA has the discretion to apply a discounting factor to 

sources participating in the emissions averaging program. However, 

given the.Inherent conservatism of MACT, CMA does not believe that 

applying a discounting factor to trades within the HON is necessary. 

EPA Has the Authority to Specify "De Minimis" Cutoffs Within a MACT 

Standard 

EPA has the authority to specify "de minimis" cutoff limits within 

a MACT standard. Even though "de minimis" levels for MACT are not 

specified in the Act, EPA has the inherent power to provide for "de 

minimis" exemptions. This issue was addressed in Alabama Power 

Company v. Costle, 636 F.2d 323 (1979). In Alabama Power, the court 

stated that EPA has the authority to "exempt de minimis situations from 

a statutory command ... " The court further stated that: 

"The ability .. . to exempt de minimis situations from a 

statutory command is not an ability to depart from the statute, 

but rather a tool to be used in implementing the legislative 

design." 

Legislative history does not preclude EPA from exempting de 

minimis amounts from MACT regulations. Some individuals erroneously 

rely on a statement made by Senator Durenberger as an indication that 

de minimis levels should not be established for MACT. 136 Cong. Rec. 

S16929 (October 27, 1990). 

That language is not really "legislative history" as that term is 

normally used. The "legislative history" that is used in interpreting 

a statute consists of legislative statements, made before passage of 

the statute, that provide an interpretation of what the legislature 

intended the statute to mean. The statement at issue here, which 

consisted of comments on an EPA paper on possible implementation 

strategies, is best characterized as an expression of preference by one 

Senator concerning how EPA should implement the statute once it was 

enacted. 

Moreover, the statement of a single legislator as to the intended 

meaning of a statutory provision is not controlling. This particularly 

applies here, where the legislative history itself indicates a lack of 

agreement on many of the interpretations put forward by individual 

legislators. The only formal agreement by all the Managers is found in 

the Conference Report which does not preclude the use of de minimis 

levels. 

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Congressman Dingell went out of his way to stress that the 

statements of individual members of Congress could not be regarded as 

binding, authoritative interpretations of the amendments. Although he 

recognized that many individuals would wish to present their personal 

views as to the appropriate interpretation of various provisions of the 

statute, he emphasized that only the Statement of Managers in the 

Conference Report could be regarded as authoritative. 136 Cong. Rec. 

E3714 (November 2, 1990). 

Finally, the average of the top 12% of best controlled sources in 

a category do include de minimis cutoffs. The federal and state air 

control regulations forming the basis for the 12% floor include de 

minimis cutoffs. These rules and the facilities adhering to them form 

the MACT floor. Therefore, de minimis cutoffs are inherent in the 

floor. 

Conclusion 

CMA appreciates the opportunity to participate in EPA Roundtable 

discussions. The exchange of information and ideas is a valuable tool 

for creating fair and effective regulations. If you have any questions 

or if CMA can be of further assistance, please call me at 202/887-1241. 

Sincerely, 

Nancy Cookson 

Counsel 

cc: A. Eckert 

fD. McMurref 
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• Michihiro KAMIJIMA, et ai: Ovarian Toxicity of 2-Bromopropane 149 

contrast to the effect on spermatogenesis10'. Extensive 

studies are needed on female reproductive toxicity of 

structurally related compounds, especially in a chronic or 

subchronic study design. 

In conclusion, 2-bromopropane is as toxic to the female 

reproductive system as it is to the male's. The amenorrhea 

observed among Korean workers in an electronics factory" 

could be primarily attributable to 2-bromopropane exposure. 

Acknowledgment. This work was supported in part by a 

grant from the Aichi Health Promotion Foundation, Japan. 

References 

1) Kim Y, Jung K, Hwang T, et al. Hematopoietic and 

reproductive hazards of Korean electronic workers 

exposed to solvents containing 2-bromopropane. Scand J 

Work Environ Health 1996; 22: 387-391. 

2) Ichihara G, Asaeda N, Kumazawa T, et al. Testicular 

toxicity of 2-bromopropane. J Occup Health 1996; 38: 

205-206. 

3) Ichihara G, Asaeda N, Kumazawa T, et al. Testicular and 

hematopoietic toxicity of 2-bromopropane, a substitute 

for ozone layer-depleting chlorofluorocarbons. J Occup 

Health 1997; 39: 57-63. 

4) Kamijima M, Ichihara G, Yu XZ, et al. Disruption in 

ovarian cyclicity due to 2-bromopropane in the rat. J 

Occup Health 1997; 39: 3-4. 

5) Takeuchi Y, Huang J, Shibata E, Hisanaga N, Ono Y. A 

trial to automatize an organic solvent exposure system 

for small animals. Jpn J Ind Health 1989; 31: 722 (in 

Japanese). 

6) Cooper R, Goldman J, Vandenbergh J. Monitoring of 

estrous cycle in the laboratory rodent by vaginal lavage. 

In: Heindel J, Chapin R, eds. Female reproductive 

toxicology. San Diego: Academic Press, 1993: 45-56. 

7) Montes G, Luque E. Effects of ovarian steroids on vaginal 

smears in the rat. Acta Anat 1988; 133: 192-199. 

8) Jarrell J, Lai E, Barr R, McMahon A, Belbeck L, 

O'Connell G. Ovarian toxicity of cyclophosphamide alone 

and in combination with ovarian irradiation in the rat. 

Cancer Res 1987; 47: 2340-2343. 

9) Whorton D, Krauss RM, Marshall S, Milby T. Infertility 

in male pesticide workers. Lancet 1977; 2: 1259-1261. 

10) Shaked I, Sod-Moriah U, Kaplanski J, Potashnik G, 

Buchman O. Reproductive performance of dibromochloropropane-treated female rats. Int J Fertil 1988; 33: 

129-133.