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OAR Box 1384 

Prepped by Charmelle Mathews 

DocumentNumber: 

8) ll-E-208 

Docket Number: 

A-94-52 

Printed 7/2/2008 8:42:12 AM Sheet 248 of 264 
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TO: 

FROM: 

RE: 

DATE: 

MEMORANDUM 

File 

Diane McConkey, EPA/OGC 

It- t£-lO$ 

Meeting with Composites Fabricators Association Representatives to Discuss 

Legal Issues Relating to Reinforced Plastics MACT 

June 16, 2000 

On May 1, 2000, representatives of the Composites Fabricators Association (CFA) met 

with EPA staff to discuss the MACT standard for the reinforced plastics source category. 

Participants: 

Bill Pedersen 

Lowell Miles 

John Schweitzer 

Gary Multanen 

Diane McConkey 

Penny Lassiter 

Keith Barnett 

Shaw Pittman 

Miles Fiberglass & Composites 

CFA 

Fiberglass Systems, Inc. 

EPA/OGC 

EPA/OAQPS/ESD (by conference call) 

EPA/OAQPS/ESD (by conference call) 

The participants discussed a paper that CFA had prepared setting forth its position 

regarding development of new source MACT for the reinforced plastics category. This paper is 

attached. 

Attachment 

M I 9 2001 

EPA AIR DOCKET 
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Discussion Paper for Composites Fabricators Association/ EPA Meeting, May 1, 2000 

Does EPA Have Legal Authority to Set One New Source MACT Standard for Larger 

Sources, and Another for Smaller Sources, within the Same Existing Source MACT 

Category or Subcategory? 

Introduction 

1. CFA believes that oxidation would not be the "best" technology for HAP control at 

composites manufacturers because it would increase greenhouse gas emissions, 

conflict with OSHA rules, and discourage pollution prevention. 

2. CFA also believes that oxidation is not a proper "above the floor" control. The 

industry simply cannot afford it. In addition, oxidation's cost-effectiveness in reducing 

emissions is low compared to the cost-effectiveness of pollution prevention. 

3. Accordingly, CFA opposes any required use of oxidation under the composites 

fabricating MACT. 

4. However, EPA has said it is considering a new source MACT standard that would 

require the use of oxidation. Although CFA will continue to oppose any such standard, 

the possibility that EPA will propose it raises the question: "If EPA requires oxidation 

for some new composite manufacturing plants within a given 'category' or 

'subcategory', can it legally limit the application of this new source MACT to plants 

above a certain emissions threshold within that category or subcategory?" 

Legal Reasons Why EPA Can Establish DifTerent New Source MACT Standards Within a 

Category or Subcategory 

1. The language of the law allows EPA to establish more than one new source MACT 

standard within a category or subcategory. CAA §112(d)(3) requires new source 

MACT to reflect the control level achieved by the "best controlled similar source" in a 

"category or subcategory". Not every new source within a category or subcategory 

will always be "similar" to all other new sources. To the extent that new sources are 

not "similar" to each other, the reference to "similar" sources requires EPA to set 

more than one new source MACT to reflect the dissimilarity. Indeed, if Congress had 

meant to forbid such distinctions, it would have required new source MACT to be 

based on the "best controlled" source within a category or subcategory, omitting the 

word "similar". The word "similar" would have no meaning if it did not give EPA 

power to establish more than one new source MACT within a category or 

subcategory. 

In addition, CAA §112(d)(1) authorizes the Administrator to "distinguish among 

classes, types and sizes of sources within a category or subcategory" in establishing 

MACT standards, (emphasis added). 

2. The structure of the law supports EPA's authority to establish more than one new 

source MACT in a category or subcategory. Defining the existing source MACT floor 
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is the basic purpose of a category or subcategory. A category or subcategory that is 

optimum for this purpose may yield questionable or even absurd results if every new 

source that fits within it must meet the same MACT standard. Allowing different new 

source MACTs to be established for different types of new sources within a category 

or subcategory avoids this bind. 

Policy Reasons Why EPA Might Want to Establish Different New Source MACTs for 

Different Types of Sources within A Category or Subcategory 

If EPA could not establish different new source MACTs for different types of new 

sources within a category or subcategory, the Agency could easily be forced to the 

choice of either 

(1) applying to all new sources down to the 10 ton level a new source 

MACT standard that only very large sources could afford to meet. That 

would prevent all construction of small new composites fabricating 

plants, with disastrous consequences for the structure and future of the 

industry; or 

(2) setting a single new source MACT that all types of new sources in the 

category or subcategory could meet. That might not always be 

appropriate, since new sources may vary widely in their ability to meet 

new source MACT standards. 

What Factors Can EPA Consider in Distinguishing Among Sources When Setting New 

Source MACT? 

EPA can consider any factors that make sense in deciding to establish different new source 

MACT standards for different types of sources within a category or subcategory. Those 

factors expressly include technical feasibility, source size, cost, non-air quality health and 

environmental impact, energy impact, and impact on small business. 

1. The statute only requires that the sources subject to a single new source MACT be 

"similar" to each other. When Congress uses broad language like this, the agency has 

great discretion to adopt any reasonable policy choice to implement it. Chevron. Inc. 

v. NRDC. 467 U.S. 837, 866 (1984). 

2. CAA §112(d)(1) authorizes the Administrator to "distinguish among classes, types and 

sizes of sources within a category or subcategory" in establishing MACT standards. 

This language directly authorizes EPA to distinguish on the basis of source size when 

setting new source MACT for sources within a category or subcategory. 

3. CAA §112(d)(2) requires the Administrator to consider " cost, non-air health and 

environmental impacts and energy requirements" in establishing MACT for "new and 

existing" sources. If such factors could not be considered in deciding when sources 

were "similar" to each other, they could not be considered at all in setting new source 
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MACT, since the judgment of "similarity" essentially determines the MACT standard. 

Since the law plainly requires EPA to consider such factors, it follows that EPA must 

consider them in deciding whether or not sources are "similar" enough to be covered 

by the same new source MACT standard. 

The statutory reference to confining new source MACT to "similar" sources came 

from the House version of the 1990 Amendments. The House Report (p. 328) 

confirms EPA's power to consider "energy, environmental impacts, economic impacts 

and other costs as well as any other factors as the Administrator identifies by rule" in 

defining new source MACT. 

The great majority of composites fabricators are small businesses. Under SBREFA 

EPA must exercise any statutory discretion it possesses to minimize the impact of its 

rules on small businesses. Since EPA has discretion to determine when new sources 

are "similar" enough to each other to be covered by the same new source MACT 

standard, it must define "similar" so as to minimize the impact of new source MACT 

on small businesses.