[Federal Register Volume 59, Number 107 (Monday, June 6, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-13666]
[[Page Unknown]]
[Federal Register: June 6, 1994]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 63
[AD-FRL-4892-5]
National Emission Standards for Hazardous Air Pollutants for
Source Category: Organic Hazardous Air Pollutants From the Synthetic
Organic Chemical Manufacturing Industry and Other Processes Subject to
the Negotiated Regulation for Equipment Leaks; Determination of MACT
``Floor''
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: On December 31, 1992, the EPA proposed standards to regulate
the emissions of certain organic hazardous air pollutants from
synthetic organic chemical manufacturing industry (SOCMI) production
processes and seven other processes which are part of major sources
under section 112 of the Clean Air Act as amended in 1990 (the Act).
This rulemaking is commonly called the Hazardous Organic NESHAP or the
HON. In the final action regarding the December 31, 1992 proposal,
which was signed on February 28, 1994, and published in the Federal
Register on April 22, 1994, EPA deferred taking final action regarding
provisions applicable to medium storage vessels due to the need to
resolve an issue of statutory interpretation of section 112(d)(3)(A) of
the Act. On March 9, 1994, EPA reopened the comment period to request
additional comment on the appropriate interpretation of this statutory
provision and the effect of that interpretation on the appropriate
control requirements for medium storage vessels at facilities subject
to the HON.
This action announces EPA's final decision regarding the
interpretation of Clean Air Act section 112(d)(3)(A) for purposes of
the HON and the final decision regarding control provisions applicable
to medium storage vessels in SOCMI facilities subject to the HON. The
decision announced in this action regarding the interpretation of Clean
Air Act section 112(d)(3)(A) for purposes of the HON will be
presumptively followed in subsequent MACT rulemakings, but it will not
be binding. Although EPA believes that Congress intended one
interpretation--referred to as the ``Higher Floor Interpretation''--in
Clean Air Act section 112(d)(3)(A), EPA also believes that the Agency
retains discretion in important respects in setting Floors for MACT
standards. EPA intends to exercise its discretion, within the statutory
framework, to promulgate MACT standards that best serve the public
interest.
EFFECTIVE DATE: June 6, 1994.
See Supplementary Information section concerning judicial review.
ADDRESSES: Dockets. The following dockets contain supporting
information used in developing the proposed provisions. Docket Number
A-90-19 contains general information used to characterize emissions and
control costs for the industry and Docket A-90-21 contains information
on storage vessels. These dockets are available for public inspection
and copying between 8 a.m. and 4 p.m., Monday through Friday, at the
EPA's Air and Radiation Docket and Information Center, Waterside Mall,
room M1500, 401 M Street SW., Washington, DC 20460. A reasonable fee
may be charged for copying.
FOR FURTHER INFORMATION CONTACT: On technical issues, Dr. Janet S.
Meyer, Standards Development Branch, Emission Standards Division (MD-
13), U.S. Environmental Protection Agency, Office of Air Quality
Planning and Standards, Research Triangle Park, North Carolina 27711,
telephone number (919) 541-5254. For further information on the legal
issue addressed in this notice, contact Michael S. Winer, Assistant
General Counsel, Air and Radiation Division (2344), Office of General
Counsel, Environmental Protection Agency, 401 M Street SW., Washington,
DC 20460, telephone number (202) 260-7606.
SUPPLEMENTARY INFORMATION:
Judicial Review
Under section 307(b)(1) of the Clean Air Act (CAA), judicial review
of the actions taken by this document is available only on the filing
of a petition for review in the U.S. Court of Appeals for the District
of Columbia Circuit within 60 days of today's publication of this rule.
Under section 307(b)(2) of the CAA, the requirements that are subject
to today's document may not be challenged later in civil or criminal
proceedings brought by EPA to enforce these requirements.
Public Comment: Approximately 55 comment letters were received in
response to the March 9, 1994 (59 FR 11018) reopening of the comment
period. The majority of these letters were from industries or
industrial trade associations, arguing in favor of the less stringent
``Lower Floor Interpretation.'' Environmental groups, State or local
governments and labor unions argued almost uniformly in favor of the
more stringent ``Higher Floor Interpretation.'' The EPA considered all
public comments in framing the final policy for MACT floor
determination and in selection of the requirements for medium storage
vessels. The major issues raised by the comments are addressed in this
preamble. The EPA's responses to all the comments can be found in
docket A-90-19, Subcategory VI-B.
I. Summary of Decision on MACT Floor Determination
This section describes EPA's decision with respect to the
interpretation of Clean Air Act section 112(d)(3)(A) for purposes of
this rulemaking. As set forth in more detail below, EPA believes that
one of the interpretations of section 112(d)(3)(A)--referred to as the
``Higher Floor Interpretation''--is the better and more natural reading
of the statutory language.
A. Background
Section 112(d)(3) of the Clean Air Act provides that Emissions
standards promulgated under this subsection for existing sources * * *
shall not be less stringent * * * than--
(A) The average emission limitation achieved by the best performing
12 percent of existing sources * * * 42 U.S.C. section 7412(d)(3).
Existing sources for which the Administrator lacks emissions
information and those that have recently achieved LAER are excluded
from consideration. Id. (For categories or subcategories with fewer
than 30 sources, standards may not be less stringent than ``the average
emission limitation achieved by the best performing 5 sources.'' CAA
section 112(d)(3)(B)). The minimum level of stringency defined by this
language has come to be known as the MACT Floor.
In the March 9, 1994 Federal Register, EPA published a notice
soliciting comment on ``the appropriate interpretation of'' section
112(d)(3)(A). Two interpretations of section 112(d)(3)(A) were
discussed. Under the first, referred to as the ``Higher Floor
Interpretation,'' EPA would look at emission limitations achieved by
each of the best performing 12 percent of existing sources, and average
those limitations. ``Average'' would be interpreted to mean a measure
of central tendency such as the arithmetic mean or median. (The
arithmetic mean of a set of measurements is the sum of the measurements
divided by the number of measurements in the set. The median is the
value in a set of measurements below and above which there are an equal
number of values, when the measurements are arranged in order of
magnitude).
Under the second, ``Lower Floor Interpretation,'' EPA would look at
the average emission limits achieved by each of the best performing 12
percent of existing sources, and take the lowest. This second
interpretation groups the words ``average emission limitation'' into a
single phrase, and asks what ``average emission limitation''
(accounting for variability over time, or between different pollutants
being emitted from a facility) is ``achieved by'' all members of the
best performing 12 percent.
B. EPA's Interpretation of Section 112(d)(3)(A)
The EPA believes that the ``Higher Floor Interpretation'' is a
better reading of Clean Air Act section 112(d)(3)(A) than the ``Lower
Floor Interpretation.'' This conclusion is based on a review of the
statute, legislative history and comments received in response to EPA's
March 9 notice.
1. The Statutory Language
Section 112(d)(3)(A) requires that standards be no less stringent
than ``* * * the average emission limitation achieved by the best
performing 12 percent of existing sources * * *''. The EPA believes
that the most natural and straightforward reading of this language
would have EPA first determine the emission limitations achieved by
sources within the best performing 12 percent, and then average those
limitations. This is the method described above as the ``Higher Floor
Interpretation.''
The EPA believes that if Congress had intended the Lower Floor
Interpretation, language other than that actually used in section
112(d)(3)(A) would have been far more natural. For example, Congress
could easily have expressed the Lower Floor Interpretation by requiring
standards to be no less stringent than ``the emission limitation
achieved by all sources within the best performing 12 percent.''
Similarly, Congress could have required standards to be no less
stringent than ``the average emission limitation achieved by the worst
performing member of the best performing 12 percent,'' or ``the
emission limitation (averaged over time to take account of variability
in the effectiveness of control) achieved by all sources within the
best performing 12 percent.'' Any of such phrases would have been a
more natural way to convey the Lower Floor Interpretation than the
language Congress chose. However, the actual language of section
112(d)(3)(A) provides, in straightforward fashion, that standards may
be no less stringent than the ``average emission limitation achieved by
the best performing 12 percent * * *''. To glean the Lower Floor
Interpretation from this language is a strain; words and concepts not
set forth in the statute must be added or inferred.
The language of section 112(d)(3)(B) makes this point even clearer.
That section requires that standards for existing sources in categories
or subcategories with fewer than 30 sources be no less stringent than
The average emission limitation achieved by the best performing
5 sources * * *
42 U.S.C. 7412(d)(3)(B). If an interpretation parallel to the Lower
Floor Interpretation were intended, it would have been more natural for
this provision to read ``the emission limitation achieved by the 5th
best performing source.''
2. The Legislative History
The legislative history lends strong support to the view that, in
passing section 112(d)(3)(A), Congress intended the Higher Floor
Interpretation.
On the House side, the language that would eventually become
section 112(d)(3)(A) was offered as a compromise amendment by Rep.
Dingell on the House Floor on May 23, 1990. (The language of the
amendment was identical to section 112(d)(3)(A) as ultimately enacted
into law; only the numbers were different). Rep. Dingell yielded time
to Rep. Collins ``for purposes of explaining the amendment.''
Legislative History of 1990 CAA Amendments at 2896. In doing so, Rep.
Collins noted that she had originally supported slightly more stringent
numbers than those included in the amendment, and that under her
original proposal
The average of emissions from the 10 percent cleanest sources
would be the MACT standard. In cases where there are less than 30
sources in a category or subcategory, the average of the 3 cleanest
sources would determine the standard.
Id. She went on to explain that under the compromise amendment
introduced by Rep. Dingell
MACT for existing stationary sources would be the average of the
best 15 [percent] of technologies within each category or
subcategory. For categories or subcategories where there are less
than 30 sources, the standard is based on the average emissions from
the best performing 5 sources.
Legislative History of 1990 CAA Amendments at 2897.
Rep. Collins' formulations are consistent with the Higher Floor
Interpretation, not the Lower. The ``average of the 3 cleanest
sources'' cannot mean, as the Lower Floor Interpretation would require,
the level of control achieved by all three of the ``cleanest sources.''
Nor can the ``average of the best 15 [percent] of technologies'' mean a
technology as good as that used by all sources within the top 15
percent.
Another discussion of section 112(d)(3) is similar. On October 27,
1990, Sen. Durenberger (a principal supporter of the Clean Air Act
Amendments) explained the provision on the Senate floor. His
explanation was as follows:
The standard may not be less stringent than the average of the
emission levels achieved by the best performing 12 percent of the
existing sources within the category* * * The Administrator is to
exclude from the calculation of the average of top 12 percent any
source which met the following conditions* * *
Legislative History of 1990 CAA Amendments at 870 (Cong. Rec. S16929--
Oct. 27, 1990). The second sentence of Sen. Durenberger's statement, in
particular, is inconsistent with the Lower Floor Interpretation. Sen.
Durenberger makes clear that the ``average'' called for in the statute
is of the ``top 12 percent,'' not the emission limitations achieved
over time at each individual source.
No legislative history was found that supports the Lower Floor
Interpretation. The EPA believes that the legislative history indicates
that individual legislators--including those central to the drafting of
section 112(d)(3)--understood the word ``average'' to mean that once
the emission limitations achieved by the best performers in a category
had been determined, those results should be averaged. This is the
method of the Higher Floor Interpretation, not the Lower.
3. Issues Raised in Public Comment
a. Arguments Concerning the Statutory Language.
(i) Plain Meaning of the Statute. Several commenters argued that
the meaning of the statute was plain on its face and that Congress
clearly intended the Higher Floor Interpretation. These commenters
argued that when section 112(d)(3)(A) is read as a whole in its most
natural way, the Congressional intent in favor of the Higher Floor
Interpretation is clear. They argued that if Congress had intended the
Lower Floor Interpretation, it would have used different language in
the statute.
The EPA agrees with these comments. As set forth in greater detail
above, EPA believes the plain statutory language strongly favors the
Higher Floor Interpretation.
(ii) Congress' Failure to Use the Words ``of the''. Several
commenters argued that if Congress had meant the Higher Floor
Interpretation, it would have added the words ``of the'' to the
statute, so that section 112(d)(3)(A) would read ``the average of the
emission limitations achieved by the best performing 12 percent.''
These commenters saw the absence of the words ``of the'' in the statute
as evidence that Congress intended the Lower Floor Interpretation.
The EPA agrees that the statute would be more clear if Congress had
used the words ``of the,'' but disagrees with the conclusion drawn by
these commenters for two reasons. First, standard English usage often
permits dropping the prepositions ``of the'' without changing the
meaning of a phrase. (For example, ``the biggest mountain in North
America'' has the same meaning as ``the biggest of the mountains in
North America.'' ``Best singer in the band'' has the same meaning as
``best of the singers in the band.'') The same cannot be said, however,
for the various phrases and concepts that must be read into section
112(d)(3)(A) in order to arrive at the Lower Floor Interpretation.
Phrases like ``the worst performing member of...'' or ``averaged over
time...'' simply are not dropped as part of standard English. Their
absence from section 112(d)(3)(A)--unlike the absence of the words ``of
the''--must be considered significant in interpreting the provision.
Second, although the words ``of the'' do not appear in section
112(d)(3)(A), they were used by key legislators in summarizing that
section prior to passage of the 1990 Clean Air Act Amendments. As noted
above, when Sen. Durenberger (a principal supporter of the Clean Air
Act Amendments) spoke on the Senate floor on October 27, 1990, he
explained section 112(d)(3)(A) as follows:
The standard may not be less stringent than the average of the
emission levels achieved by the best performing 12 percent of the
existing sources within the category* * *
Legislative History of 1990 CAA Amendments at 870 (Cong. Rec. S16929--
Oct. 27, 1990) (emphasis added). As also noted above, when Rep. Collins
introduced the provision in the House, she described it as follows:
The average of emissions from the 10 percent cleanest sources
would be the MACT standard. In cases where there are less than 30
sources in a category or subcategory, the average of the 3 cleanest
sources would determine the standard.
Legislative History of 1990 CAA Amendments at 2896 (emphasis added)
(describing a provision with identical language but different numbers
than the one ultimately enacted into law).
In EPA's view, the fact that Congress did not use the words ``of
the'' in section 112(d)(3)(A) is fully consistent with standard
English. However, the fact that key legislators did use these words in
describing the provision to their colleagues, in combination with the
failure of those legislators to use the phrases on which the Lower
Floor Interpretation depends, provides a strong indication that
Congress intended the Higher Floor Interpretation in enacting section
112(d)(3)(A).
(iii) Purpose of the Word ``Average''. Several commenters argued
that the word ``average'' in section 112(d)(3)(A) should be read to
require averaging not of emissions from different sources within the
top 12 percent, but instead of emissions from individual sources at
different times, or from different emission points, or made up of
different HAP. The EPA does not agree that the word ``average'' in
section 112(d)(3)(A) can reasonably be read to serve this purpose.
First, such a reading is difficult, if not impossible, to reconcile
with the provision of section 112(d)(3) establishing a ``floor'' for
new sources. Under those provisions, new source standards may not be
less stringent than
The emission control that is achieved in practice by the best
controlled similar source.
42 U.S.C. 7412(d)(3). Notably, Congress did not use the word
``average'' in this provision. If the word ``average'' in section
112(d)(3)(A) was intended to refer to averages across time, or between
emission points, or among different HAP, then Congress must have
intended that such averaging would take place for existing source
standards, but not for new source standards. There is no reason to
believe Congress intended this implausible result.
There is a much more likely explanation: That to the extent
Congress contemplated that averaging across time, or between emission
points, or among HAP would play a role in either existing or new source
MACT standards, it considered the terms ``emission limitation'' and
``emission control'' fully adequate to reflect that fact. In EPA's air
program, emission limitations have routinely been expressed in terms of
averages across time, for example, without any special statutory
direction or authority. There is no reason to believe that Congress
would have thought that special instructions were needed to ensure that
EPA continued this practice, and even less reason to believe Congress
would have thought special instructions were needed with respect to
existing source standards, but not new source standards.
Furthermore, the legislative history of section 112 casts doubt on
the interpretation of the word ``average'' offered by these commenters.
When Congress comprehensively revised section 112 in the Clean Air Act
Amendments of 1990, it based the revisions in substantial part on the
Clean Water Act's effluent guidelines program. (See, e.g., Remarks of
Sen. Durenberger, Cong. Rec. S516 (January 30, 1990) (``* * * this
approach to regulation of toxic air pollutants is not without
precedent. A program very similar to the one I have just described has
already been implemented under the Clean Water Act'').) Under that
program, certain limits (known as ``BPT limits'') have long been based
on the ``average of the best'' performance at existing facilities. (See
generally Remarks of Sen. Muskie, Legislative History of Federal Water
Pollution Control Act of 1972 at 169-70 (``The Administrator should
establish the range of `best practicable' levels based upon the average
of the best existing performance by plants of various sizes, ages and
unit processes.'')) In determining ``average of the best'' under the
Clean Water Act, EPA has historically identified the best performers in
an industrial category, and then averaged their performances. This
methodology is consistent with the Higher Floor Interpretation and not
the Lower.
(iv) Proximity of the Word ``Average'' to the Words ``Emission
Limitation''. Several commenters argued that the proximity of the word
``average'' to the words ``emission limitation'' suggests that
``average'' modifies ``emission limitation,'' and not the entire phrase
following those words. The EPA does not agree with this argument. In
English, adjectives often modify not only the noun immediately
following, but an entire phrase. In the phrase ``the biggest mountain
in North America climbed by members of the Washington, D.C. Climbing
Club,'' for example, the adjective ``biggest'' modifies the entire
remainder of the phrase. There is no reason to conclude that the word
``average'' in section 112(d)(3)(A) plays a different role.
(v) Use of the Words ``Achieved By''. Several commenters argued
that the use of the words ``achieved by'' in the statute indicates that
all sources within the top 12 percent must be achieving the emission
limitations used to set the MACT Floor.
The EPA does not agree with this argument. The EPA believes the
argument depends both on inferring the presence of the word ``all'' in
section 112(d)(3)(A), and (as discussed above) on ignoring, or
incorrectly construing, the meaning of the word ``average.'' Section
112(d)(3)(A) simply does not say ``the emission limitation achieved by
all sources within the best performing 12 percent* * *''. Congress' use
of the words ``achieved by'' cannot reasonably be stretched to
accomplish such a rewriting of the statute.
b. Arguments Concerning Structure of the Statute. Several
commenters argued that elements of the statute's structure support the
Lower Floor Interpretation. For example, some commenters argued that
the Lower Floor Interpretation best reflects EPA's authority to
consider cost and other factors in setting standards more stringent
than MACT Floor. Other commenters argued that the Lower Floor
Interpretation best reflects the distinction between existing source
MACT and new source MACT.
The EPA does not agree with these arguments. In fact, the Higher
Floor Interpretation fully preserves both of these structural elements
of the statute. With the Higher Floor Interpretation, just as with the
Lower, EPA still has authority to establish existing source standards
more stringent than the Floor based on enumerated criteria. With the
Higher Floor Interpretation, just as with the Lower, there is still a
distinction between the Floor for existing sources and the level of
control required for new sources. (Under section 112(d)(3), standards
for new sources must be at least as stringent as ``the emission control
that is achieved in practice by the best controlled similar source'').
The fact that there may be ``less distance'' to travel above the Floor
with the Higher Floor Interpretation does not establish an
inconsistency between that interpretation and other parts of the
statute, nor does it mean that the interpretation is flawed in any way.
Furthermore, structural arguments tend to favor the Higher Floor
Interpretation more strongly than the Lower. Section 112 was passed in
its current form to ensure quick and dramatic reductions in air toxics
emissions. Congress was frustrated with the slow pace of toxics control
prior to 1990, and many members in part blamed EPA for weak controls.
See, e.g., H. Comm. Rep. 101-490 at 150-54, 322-23; S. Rpt. 101-228 at
128-33. The structure and purpose of section 112 as a whole indicates
that section 112(d)(3)(A) was intended to establish a stringent minimum
level of control for hazardous air pollutants.
c. Additional Arguments. Several commenters argued that the Higher
Floor Interpretation would require EPA to set MACT Floors that failed
to correspond to real-world control technologies.
The EPA does not agree with this argument. The EPA believes that
the argument depends upon a flawed premise: That the word ``average''
can only mean ``arithmetic mean.'' In fact, there are a number of
conventional methods for determining the average of a data set,
including the median. Congress did not mandate a particular method of
determining ``average'' or central tendency in section 112(d)(3)(A),
and the choice of methodology--whether median, mean, or some other
measure--can often change the results markedly. For example, if the
five facilities that make up the top 12 percent of a source category
are achieving reductions equal to 99 percent, 98 percent, 95 percent,
94 percent and 93 percent, EPA need not set the MACT Floor equal to the
arithmetic mean of these values, which is 95.8 percent. Using the
Higher Floor Interpretation, EPA could set the MACT Floor equal the
median of these values, which is 95 percent.
This discussion responds to the most significant comments on legal
issues received in response to the March 9, 1994 Federal Register
document. Other comments on legal issues are addressed in item number
VI-B-61 in docket A-90-19.
C. Conclusion
The EPA believes that Congress spoke with clarity in section
112(d)(3)(A) of the Clean Air Act. That provision--requiring standards
to be no less stringent than ``the average emission limitation achieved
by the best performing 12 percent of existing sources''--lends little
support for an interpretation under which standards might be set at the
emission limitation achieved by the worst performing member of the best
performing 12 percent of existing sources. The legislative history
offers no support for such an interpretation, and indeed points
strongly in the opposite direction. The EPA believes that the Higher
Floor Interpretation represents the best reading of the statutory
language.
II. Discretion in Setting Floors for MACT Standards
In today's notice, EPA announces its conclusion that Congress
intended the Higher Floor Interpretation. The effect of this decision,
however, is not to identify any particular number (e.g. the 94th
percentile) as the Floor for all MACT standards. EPA retains discretion
in important respects in setting Floors for MACT standards, and intends
to exercise its discretion, within the statutory framework, to
promulgate MACT standards that best serve the public interest.
EPA believes the Agency retains substantial discretion, within the
statutory framework, to set MACT Floors at appropriate levels. For
example, because Congress did not define the term ``average'' in
section 112(d)(3), or in the legislative history, it implicitly
delegated the authority to EPA to do so. The choice of methodology--
whether mean, median, mode, or some other measure--can often change the
results. (The mean of a set of measurements is the sum of the
measurements divided by the number of measurements in the set. The
median is the value in a set of measurements below and above which
there are an equal number of values, when the measurements are arranged
in order of magnitude. The mode is the value that occurs most often in
a set of measurements). As some commenters noted, the ``average of the
best performing 12%'' corresponds to the 94th percentile when the word
``average'' is construed to be the ``median.'' If, however, ``average''
is construed to be the ``arithmetic mean'' or ``mode,'' a different
result may obtain. EPA construes the word ``average'' in section
112(d)(3) to authorize the Agency to use any reasonable method, in a
particular factual context, of determining the central tendency of a
data set. In addition, EPA has discretion to use its best engineering
judgment in collecting and analyzing the data, and in assessing the
data's comprehensiveness, accuracy and variability, in order to
determine which sources achieve the best emission reductions. EPA also
has discretion in determining how to analyze the data, and thus in
determining the appropriate ``average'' in each category or
subcategory.
There are other important ways that EPA retains discretion in
setting MACT floors. For example, Congress authorized EPA to
subcategorize source categories based on classes, types and sizes of
sources, which will result in different Floors for different
subcategories. CAA section 112(d)(1). Using this authority, EPA can
tailor standards to certain characteristics of particular emission
units and sources. EPA retains flexibility, for example, to conclude
that the production processes used at particular sources in the
relevant category are sufficiently different from processes used at
other sources in the same category to justify the creation of a new
subcategory.
These examples are not meant to be exhaustive. EPA has only begun
the process of setting MACT standards. As EPA gains experience in
setting MACT Floors, other issues may arise that will require EPA to
exercise its discretion in determining, for each case, what represents
the average emission limitation achieved by the best performing 12% of
existing sources (or the best performing five sources, in categories or
subcategories with fewer than 30 sources).
III. Precedential Impact of Today's Determination
In its March 9, 1994 document, EPA stated that ``the MACT floor
decision * * * in this rulemaking will have broad precedential effect,
and will be presumptively followed in subsequent MACT rulemakings.'' 59
FR 11018. Several commenters objected this statement, arguing that the
issue of how best to interpret section 112(d)(3)(A) should have been
addressed in a separate, generally applicable rulemaking.
The EPA wishes to emphasize that, although today's decision
concerning the interpretation of Clean Air Act section 112(d)(3) for
purposes of the HON will be precedential for future rulemakings, it
will not be binding. Specifically, EPA will fully consider all comments
on individual MACT standards, including those regarding the proper
interpretation of the language in sec. 112(d)(3)(A), received on or
before the close of the comment periods for those standards.
IV. Application of MACT Floor Decision to Medium Storage Vessels at
Facilities Subject to the HON
As described in the March 9, 1994 Federal Register reopening the
comment period, EPA requested comment on whether the control
requirements for medium storage vessels previously proposed by EPA
would be appropriate in the event those proposed controls were to be
determined to be more stringent than the floor. Only four commenters
addressed the question of the appropriate controls requirement for
medium storage vessels and provided rationale for their opinions. Of
these commenters, only one submitted information which purported to
represent control information for SOCMI storage vessels. This
information was reviewed and found to not provide any information on
control performance and to represent storage vessels associated with
non-SOCMI processes (i.e., other source categories) as well as SOCMI
processes. Therefore, the submitted information could not be used to
revise the database. The EPA review of this information is contained in
item VI-B-62 in docket A-90-19. This section of the preamble,
therefore, only presents the basis for the final decision on control
requirements for medium sized storage vessels.
For medium vessels, about 8 percent of the vessels are controlled
with either a 90-percent efficient control device or an IFR or EFR with
a continuous seal. All of the controlled medium-sized vessels contained
liquids with vapor pressures of 13.1 kPa (1.9 psia). Because the
arithmetic mean characteristics of the top 12 percent of the medium
vessels would not represent the performance of any known technology,
the EPA used the median as the average for these vessels. Thus, for
medium-sized storage vessels, the floor determined by the average
characteristics of the top 12 percent of the sources would require
control of vessels storing liquids with vapor pressures of 13.1 kPa
(1.9 psia) by either a 90-percent efficient control device or an IFR or
EFR with a continuous seal.
In selection of the control provisions for medium-sized storage
vessels, EPA considered the regulatory alternatives that were presented
in the April 22, 1994 Federal Register document. These alternatives
reflected a combination of: (1) The floor control for medium-sized
storage vessels, which at the time of proposal, were equipped with the
floor controls and (2) the proposed control provisions for medium-sized
storage vessels which were equipped with no control or less efficient
controls than the performance of the revised floor component for the
source-wide floor. The EPA did not develop a regulatory alternative
corresponding to application of the revised floor control level to all
storage vessels. Such an alternative would have essentially the same
control costs as the proposed control provisions, but would result in a
lower emission reduction. Because the floor control would represent a
less economically efficient option and would add to the complexity of
the rule, this option was not formally evaluated.
For medium storage vessels at existing sources, control at the
regulatory alternative used to represent the floor control was
estimated to cost $2.4 million/yr and to result in an emission
reduction of 370 Mg/yr (110 tons/yr). The regulatory option for control
level beyond the floor component is estimated to further reduce
emissions by less than 100 Mg/yr (110 tons/yr) at an additional cost of
$4 million/yr, or $48,000/Mg for each additional Mg of emission
reduction. Due to the relatively high incremental costs and low
emission reductions of this alternative, the EPA believes that the
control level for the medium storage vessels component of the source-
wide floor represented the maximum reduction achievable considering
cost and other impacts.
IV. Administrative Requirements
A. Docket
The docket is an organized and complete file of all the information
submitted to or otherwise considered by EPA in the development of this
rulemaking. The principal purposes of the docket are: (1) To allow
interested parties to identify and locate documents so that they can
effectively participate in the rulemaking process and (2) to serve as
the record in case of judicial review (except for interagency review
materials) (Section 307(d)(7)(A)).
B. Paperwork Reduction Act
The information collection requirements of these provisions in this
rule have been submitted for approval to the OMB under the Paperwork
Reduction Act, 44 U.S.C. 3501 et seq. An Information Collection Request
document has been prepared by the EPA (ICR No. 1414.02), and a copy may
be obtained from Sandy Farmer, Information Policy Branch, EPA, 401 M
Street, SW., (2136), Washington, DC 20460, or by calling (202) 260-
2740. These requirements are not effective until OMB approves them and
a technical amendment to that effect is published in the Federal
Register.
The reporting and recordkeeping burden of the information
collection requirements of the provisions for medium sized storage
vessels are included in the estimate of the overall reporting burden,
which is presented in ICR No. 1414.02. The information collection
requirements for the entire rule has an estimated annual reporting
burden averaging 1,400 hours per response, and an estimated annual
recordkeeping burden averaging 5,400 hours per respondent. These
estimates include time for reviewing instructions, searching existing
data sources, gathering and maintaining the data needed, and completing
and reviewing the collection of information.
Send comments regarding the burden estimate or any other aspect of
this collection of information, including suggestions for reducing this
burden, to Chief, Information Policy Branch, EPA, 401 M Street, SW.,
(Mail code 2136); Washington, DC 20460; and to the Office of
Information and Regulatory Affairs, Office of Management and Budget,
Washington, DC 20503, marked ``Attention: Desk Officer for EPA.''
C. Executive Order 12866
This final action regarding provisions applicable to medium sized
storage vessels in facilities subject to the HON has been reviewed in
accordance with Executive Order 12866. Under the terms of the Order,
the Administrator has assessed the potential costs and benefits of the
regulatory action. The methods for and results of these cost and
benefit analyses are described in the HON's Regulatory Impact Analysis
(RIA). The RIA was included in the HON docket at proposal, and thus it
was made available for public comment.
Executive Order 12866 also requires that the record for
``significant'' rules include an assessment of the potentially
effective and reasonably feasible alternatives to the planned action.
The potentially effective and reasonably feasible alternatives to the
control requirements in the HON were also analyzed as part of the rule
development process. The methods for and results of these analyses are
described in the HON's Background Information Document (BID). The BID
was included in the HON docket at proposal, and thus it was also
available for public comment. In addition, many of the alternative
requirements considered by the Administrator were described in the
preamble for the HON proposal.
The potential costs associated with selection of the final
provisions are primarily the result of statutory requirements. All
elements of the cost that are not directly attributable to statutory
requirements were deemed appropriate because the Administrator
determined that they were necessary for administering this program
effectively and efficiently. In assessing the potential costs and
benefits--both quantitative and qualitative--of this rule, the
Administrator has determined that the benefits justify the costs.
The Administrator has also determined that this regulatory action
does not unduly interfere with State, local and tribal governments in
the exercise of their governmental functions.
D. Regulatory Flexibility Act Compliance
The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires the
EPA to consider potential impacts of Federal regulations on small
business entities. If a preliminary analysis indicates that a proposed
regulation would have a significant economic impact on 20 percent or
more of small entities, then a regulatory flexibility analysis must be
prepared.
Regulatory impacts are considered significant if any of the
following criteria are met: (1) Compliance increases annual production
costs by more than 5 percent, assuming costs are passed on to
consumers; (2) compliance costs as a percentage of sales for small
entities are at least 10 percent more than compliance costs as a
percentage of sales for large entities; (3) capital costs of compliance
represent a ``significant'' portion of capital available to small
entities, considering internal cash flow plus external financial
capabilities; or (4) regulatory requirements are likely to result in
closures of small entities.
The potential costs of the requirements for medium sized storage
vessels were considered as part of the economic impact analysis for the
entire regulation. The assessment of the economic impacts of the
overall regulation were presented in the April 22, 1994 Federal
Register (59 FR 19449). Therefore, the addition of the final provisions
to the standard does not alter the conclusion that the standard is not
expected to have a significant economic impact on a substantial number
of small firms.
Pursuant to the provisions of 5 U.S.C. 605(b), I hereby certify
that this attached rule will not have an economic impact on small
entities because no additional costs will be incurred.
List of Subjects in 40 CFR Part 63
Environmental protection, Air pollution control, Hazardous
substances, Reporting and recordkeeping requirements.
Dated: May 27, 1994.
Carol M. Browner,
Administrator.
For the reasons set out in the preamble, part 63, title 40, chapter
I, of the Code of Federal Regulations is amended as follows:
PART 63--[AMENDED]
1. The authority citation for part 63 continues to read as follows:
Authority: Sections 101, 112, 114, 116, and 301 of the Clean Air
Act (42 U.S.C. 7401, et seq., as amended by Pub. L. 101-549, 104
Stat. 2399).
Subpart G--National Emission Standards for Organic Hazardous Air
Pollutants from Synthetic Organic Chemical Manufacturing Industry
Process Vents, Storage Vessels, Transfer Operations, and Wastewater
2. Table 5 of the appendix to subpart G is revised to read as
follows:
Table 5.--Group 1 Storage Vessels at Existing Sources
------------------------------------------------------------------------
Vapor
Vessel capacity (cubic meters) Pressure\1\
(kilopascals)
------------------------------------------------------------------------
75 capacity <151............................. 13
.1
151 capacity................................. 5.
2
------------------------------------------------------------------------
\1\Maximum true vapor pressure of total organic HAP at storage
temperature.
[FR Doc. 94-13666 Filed 6-3-94; 8:45 am]
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