80 FR 31470 - Completion of Requirement To Promulgate Emissions Standards

ENVIRONMENTAL PROTECTION AGENCY

Federal Register Volume 80, Issue 106 (June 3, 2015)

Page Range		31470-31481
FR Document		2015-13500

In this action the Environmental Protection Agency (EPA) finalizes its proposed determination that the EPA completed its statutory obligation under the Clean Air Act (CAA) to promulgate emissions standards for source categories accounting for not less than 90 percent of the aggregated emissions of each of seven specific hazardous air pollutants (HAP) enumerated in the CAA. On December 16, 2014, the EPA published the proposed determination that stated the basis for the agency's conclusion that it completed this obligation in February of 2011 by identifying the promulgated standards that collectively satisfy this obligation and provided the public an opportunity to comment on the EPA's determination. This action finalizes the EPA's determination.

Federal Register, Volume 80 Issue 106 (Wednesday, June 3, 2015)

[Federal Register Volume 80, Number 106 (Wednesday, June 3, 2015)]
[Rules and Regulations]
[Pages 31470-31481]
From the Federal Register Online [www.thefederalregister.org]
[FR Doc No: 2015-13500]

=======================================================================
-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 63

[EPA-HQ-OAR-2004-0505; FRL-9928-25-OAR]
RIN 2060-AS42

Completion of Requirement To Promulgate Emissions Standards

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: In this action the Environmental Protection Agency (EPA)
finalizes its proposed determination that the EPA completed its
statutory obligation under the Clean Air Act (CAA) to promulgate
emissions standards for source categories accounting for not less than
90 percent of the aggregated emissions of each of seven specific
hazardous air pollutants (HAP) enumerated in the CAA. On December 16,
2014, the EPA published the proposed determination that stated the
basis for the agency's conclusion that it completed this obligation in
February of 2011 by identifying the promulgated standards that
collectively satisfy this obligation and provided the public an
opportunity to comment on the EPA's determination. This action
finalizes the EPA's determination.

DATES: This action is effective on June 3, 2015.

ADDRESSES: The EPA has established a docket for this rulemaking under
Docket ID Number EPA-HQ-OAR-2004-0505. All documents in the docket are
listed in the http://www.regulations.gov index. Although listed in the
index, some information is not publicly available, e.g., confidential
business information (CBI) or other information whose disclosure is
restricted by statute. Certain other material, such as copyrighted
material, will be publicly available only in hard copy. Publicly
available docket materials are available either electronically in
http://www.regulations.gov or in hard copy at the EPA Docket Center,
EPA WJC West Building, Room 3334, 1301 Constitution Ave. NW.,
Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30
p.m., Monday through Friday, excluding legal holidays. The telephone
number for the Public Reading Room is (202) 566-1744, and the telephone
number for the EPA Docket Center is (202) 566-1742.

FOR FURTHER INFORMATION CONTACT: For questions about this action,
contact Mr. Nathan Topham, Office of Air Quality Planning and
Standards; Sector Policies and Programs Division, Metals and Inorganic
Chemicals Group (D243-02); Environmental Protection Agency; Research
Triangle Park, NC 27111; telephone number: (919) 541-0483; fax number:
(919) 541-3207; email address: topham.nathan@epa.gov.

SUPPLEMENTARY INFORMATION:
Organization of this document. The information presented in this
preamble is organized as follows:

I. General Information
A. Where can I get a copy of this document?
B. Judicial Review
II. Background Information
III. How has the EPA satisfied its obligation under CAA section
112(c)(6)?
A. What are the emissions standards that the EPA has promulgated
to meet the 90 percent requirement under CAA section 112(c)(6)?
B. What are the surrogate pollutants used by the EPA when
establishing CAA section 112(d)(2) standards for the source
categories identified in the proposed determination?
IV. Summary of Significant Comments and Responses
A. General/Legal Opposition to the EPA's Surrogacy
Determinations
V. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review and
Executive Order 13563: Improving Regulation and Regulatory Review
B. Paperwork Reduction Act (PRA)
C. Regulatory Flexibility Act (RFA)
D. Unfunded Mandates Reform Act (UMRA)
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
G. Executive Order 13045: Protection of Children From
Environmental Health Risks and Safety Risks
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
I. National Technology Transfer and Advancement Act
J. Executive Order 12898: Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations
K. Congressional Review Act (CRA)

I. General Information

A. Where can I get a copy of this document?

In addition to being available in the docket, an electronic copy of
this final action will also be available on the Internet through the
EPA's Technology Transfer Network (TTN) Web site, a forum for
information and technology exchange in various areas of air pollution
control. Following signature by the EPA Administrator, the EPA will
post a copy of this final action at: http://www.epa.gov/ttn/atw/eparules.html. Following publication in the Federal Register, the EPA
will post the Federal Register version of the rule at this same Web
site.

B. Judicial Review

Under CAA section 307(b)(1), judicial review of this final action
is available only by filing a petition for review in the United States
Court of Appeals for the District of Columbia Circuit by August 3,
2015. Under CAA section 307(b)(2), the requirements established by this
final rule may not be challenged separately in any civil or criminal
proceedings brought by the EPA to enforce the requirements. Section

[[Page 31471]]

307(d)(7)(B) of the CAA further provides that ``[o]nly an objection to
a rule or procedure which was raised with reasonable specificity during
the period for public comment (including any public hearing) may be
raised during judicial review.'' This section also provides a mechanism
for us to convene a proceeding for reconsideration, ``[i]f the person
raising an objection can demonstrate to the EPA that it was
impracticable to raise such objection within [the period for public
comment] or if the grounds for such objection arose after the period
for public comment (but within the time specified for judicial review)
and if such objection is of central relevance to the outcome of the
rule.'' Any person seeking to make such a demonstration to us should
submit a Petition for Reconsideration to the Office of the
Administrator, U.S. EPA, Room 3000, EPA WJC West Building, 1200
Pennsylvania Ave. NW., Washington, DC 20460, with a copy to both the
person(s) listed in the preceding FOR FURTHER INFORMATION CONTACT
section, and the Associate General Counsel for the Air and Radiation
Law Office, Office of General Counsel (Mail Code 2344A), U.S. EPA, 1200
Pennsylvania Ave. NW., Washington, DC 20460.

II. Background Information

CAA section 112(c)(6) requires the EPA to take action with respect
to the sources of seven specific persistent, bioaccumulative HAP. The
section states, ``With respect to alkylated lead compounds, polycyclic
organic matter, hexachlorobenzene, mercury, polychlorinated biphenyls,
2,3,7,8-tetrachlorodibenzofurans and 2,3,7,8-tetrachlorodibenzo-p-
dioxin, the Administrator shall, not later than 5 years after November
15, 1990, list categories and subcategories of sources assuring that
sources accounting for not less than 90 per centum of the aggregate
emissions of each such pollutant are subject to standards under
subsection (d)(2) or (d)(4) of this section.''
CAA section 112(c)(6) requires the EPA to ensure that source
categories responsible for at least 90 percent of the aggregate
emissions of each of the seven specified pollutants are subject to
standards under CAA sections 112(d)(2) or 112(d)(4). It requires the
EPA to list, by November 15, 1995, source categories assuring that
sources responsible for 90 percent of the aggregate emissions are
subject to emission standards pursuant to CAA section 112(d)(2) or
(d)(4), and to promulgate such standards by November 15, 2000. Under
CAA section 112(d)(2), the EPA imposes emission standards that require
``the maximum degree of reduction in emissions of the [HAP]'' that the
EPA concludes are achievable based on a consideration of factors
identified in the statute. CAA section 112(d)(2). These standards are
referred to as ``maximum achievable control technology'' or ``MACT''
standards. CAA section 112(d)(4) authorizes the EPA to set a health-
based standard for a limited set of HAP for which a health threshold
has been established, and that standard must provide for ``an ample
margin of safety.'' CAA section 112(d)(4).
On December 16, 2014, the EPA published in the Federal Register the
proposed determination concluding that the requirements of CAA section
112(c)(6) were fulfilled in February of 2011. 79 FR 74656 (December 16,
2014).\1\ The proposed determination provided a detailed summary of the
litigation history regarding this action and provided an opportunity
for comment on the EPA's proposed determination that it has fulfilled
the requirements of CAA section 112(c)(6). The proposed rulemaking
explained the basis for the agency's proposed determination by
identifying the promulgated CAA section 112(d)(2) or 112(d)(4)
standards that collectively satisfy the obligation and describing how
the EPA determined which regulations would collectively satisfy the 90
percent requirement under CAA section 112(c)(6) using the updated 1990
baseline inventory of source categories that emit CAA section 112(c)(6)
HAP, which was presented in Table 1 of the proposed determination. 79
FR at 74661-74671.
---------------------------------------------------------------------------

\1\ The EPA's initial determination was signed on February 21,
2011, and published in the Federal Register on March 21, 2011.
---------------------------------------------------------------------------

III. How has the EPA satisfied its obligation under CAA section
112(c)(6)?

A. What are the emissions standards that the EPA has promulgated to
meet the 90 percent requirement under CAA section 112(c)(6)?

This action finalizes the EPA's proposed determination that the
Agency has promulgated emissions standards for source categories
pursuant to CAA sections 112(d)(2) and (4) sufficient to satisfy the
CAA section 112(c)(6) requirement that sources accounting for not less
than 90 percent of the aggregate emissions of seven specific HAP are
subject to standards under CAA sections 112(d)(2) or 112(d)(4).\2\
Table 2 of the December 2014 proposal provided a list of the emissions
standards, including the name of each of the source categories, the
name of the emissions standards that apply, and the rule citation for
each (i.e., CFR part and subpart). 79 FR 74674-74677, December 16,
2014. Table 3 of the 2014 proposal provided a list of the specific
regulations (including CFR citations, part and subpart) that address 90
percent or more of each of the CAA section 112(c)(6) HAP. 79 FR at
74677. After considering and evaluating all public comments received in
response to the proposed rule, we finalize our determination that the
EPA has satisfied the CAA section 112(c)(6) requirement to establish
CAA section 112(d)(2) or (4) standards for source categories that
account for not less than 90 percent of the seven HAP listed in CAA
section 112(c)(6).
---------------------------------------------------------------------------

\2\ In addition to standards issued pursuant to section
112(d)(2) or (4), EPA also includes standards issued pursuant to
section 129 as satisfying the 112(c)(6) requirement because section
129(a)(2) requires MACT standards that are virtually identical to
the those standards required pursuant to section 112(d)(2). In
addition, section 129(h)(3)(A) states that ``the performance
standards under subsection (a) of this section and section [111] of
this title applicable to a category of solid waste incineration
units shall be deemed standards under section [112](d)(2)of this
title.''
---------------------------------------------------------------------------

B. What are the surrogate pollutants used by the EPA when establishing
CAA section 112(d)(2) standards for the source categories identified in
the proposed determination?

As noted in the proposed rule, the emissions standards that
collectively satisfy the 90 percent requirement under CAA section
112(c)(6) were set by the EPA under two approaches: (1) Through
standards that directly regulated CAA section 112(c)(6) HAP; and (2)
through standards that set emission limits for another HAP or
compound,\3\ which serves as a surrogate for the CAA section 112(c)(6)
HAP and other non-112(c)(6) HAP emitted from the source category.
---------------------------------------------------------------------------

\3\ Some standards used non-HAP compounds (or groups of
compounds) as surrogates for HAP.
---------------------------------------------------------------------------

The EPA noted in the proposed determination that, with respect to
some of the CAA section 112(d)(2) standards that utilized the surrogacy
approach, specifically those promulgated prior to the EPA's development
of the baseline emissions inventory for CAA section 112(c)(6) and
issuance of the 1998 listing notice, the EPA did not specifically
indicate in those rulemaking records that the standards would be
counted towards satisfying the 90 percent requirement in CAA section
112(c)(6). For these standards, the 2014 proposed determination
explained how the surrogate standards control the CAA section 112(c)(6)
HAP along with other HAP from the source categories and ensure that the
sources of CAA section 112(c)(6) HAP emissions are ``subject to

[[Page 31472]]

standards'' for the purposes of CAA section 112(c)(6). The information
presented in the proposed determination simply described the actions
taken in these prior rulemakings and explained how the surrogate
standards control the relevant CAA section 112(c)(6) HAP. The proposed
determination did not reopen these prior actions. All those standards
were subject to their own notice and comment rulemaking processes
consistent with CAA sections 112 and 307(d), and, in several cases, to
judicial review as provided by the strict statute of limitations
imposed by CAA section 307(b)(1).
Table 1 of this preamble provides a list of the source categories
listed under CAA section 112(c)(6), the names of the national standards
that apply to those source categories, the Federal Register citations
and CFR part and subparts for the rules, and the CAA section 112(c)(6)
HAP regulated by those standards.

Table 1--List of Source Categories, National Emissions Standards, and the 112(c)(6) HAP Subject to These Standards, To Fulfill the CAA Section 112(c)(6)
Obligations
--------------------------------------------------------------------------------------------------------------------------------------------------------
Section 112(c)(6) source category National emissions standard Final rule Federal
name name(s) CFR part and subpart Register citation 112(c)(6) Pollutant
--------------------------------------------------------------------------------------------------------------------------------------------------------
Aerospace Industry (Surface National Emission Standards 40 CFR part 63 subpart 60 FR 45948, Mercury, POM.
Coating). for Hazardous Air GG. September 1, 1995.
Pollutants for the
Aerospace Industries.
Alkylated Lead Production.......... National Emission Standards 40 CFR part 63 subpart 59 FR 19402, April Alkylated Lead.
for Organic Hazardous Air F. 22, 1994.
Pollutants from the
Synthetic Organic Chemical
Manufacturing Industry.
National Emission Standards 40 CFR part 63 subpart 59 FR 19402, April Alkylated Lead.
for Organic Hazardous Air G. 22, 1994.
Pollutants from the
Synthetic Organic Chemical
Manufacturing Industry for
Process Vents, Storage
Vessels, Transfer
Operations, and Wastewater.
National Emission Standards 40 CFR part 63 subpart 59 FR 19402, April Alkylated Lead.
for Organic Hazardous Air H. 22, 1994.
Pollutants for Equipment
Leaks.
National Emission Standards 40 CFR part 63 subpart 59 FR 19402, April Alkylated Lead.
for Organic Hazardous Air I. 22, 1994.
Pollutants for Certain
Processes Subject to the
Negotiated Regulation for
Equipment Leaks.
Asphalt Roofing Production......... National Emission Standards 40 CFR part 63 subpart 68 FR 24562, May 7, POM.
for Hazardous Air LLLLL. 2003.
Pollutants for Asphalt
Processing and Asphalt
Roofing Manufacturing.
Blast Furnace and Steel Mills...... National Emission Standards 40 CFR part 63 subpart 68 FR 27645, May 20, POM.
for Hazardous Air FFFFF. 2003.
Pollutants for Integrated
Iron and Steel
Manufacturing Facilities.
Chemical Manufacturing: Cyclic National Emission Standards 40 CFR part 63 subpart 59 FR 19402, April POM.
Crude and Intermediate Production. for Organic Hazardous Air F. 22, 1994.
Pollutants from the
Synthetic Organic Chemical
Manufacturing Industry.
National Emission Standards 40 CFR part 63 subpart 59 FR 19402, April POM.
for Organic Hazardous Air G. 22, 1994.
Pollutants from the
Synthetic Organic Chemical
Manufacturing Industry for
Process Vents, Storage
Vessels, Transfer
Operations, and Wastewater.
National Emission Standards 40 CFR part 63 subpart 59 FR 19402, April POM.
for Organic Hazardous Air H. 22, 1994.
Pollutants for Equipment
Leaks.
National Emission Standards 40 CFR part 63 subpart 59 FR 19402, April POM.
for Organic Hazardous Air I. 22, 1994.
Pollutants for Certain
Processes Subject to the
Negotiated Regulation for
Equipment Leaks.
Chlorinated Solvents Production.... National Emission Standards 40 CFR part 63 subpart 59 FR 19402, April HCB.
for Organic Hazardous Air F. 22, 1994.
Pollutants from the
Synthetic Organic Chemical
Manufacturing Industry.
National Emission Standards 40 CFR part 63 subpart 59 FR 19402, April HCB.
for Organic Hazardous Air G. 22, 1994.
Pollutants from the
Synthetic Organic Chemical
Manufacturing Industry for
Process Vents, Storage
Vessels, Transfer
Operations, and Wastewater.
National Emission Standards 40 CFR part 63 subpart 59 FR 19402, April HCB.
for Organic Hazardous Air H. 22, 1994.
Pollutants for Equipment
Leaks.

[[Page 31473]]

National Emission Standards 40 CFR part 63 subpart 59 FR 19402, April HCB.
for Organic Hazardous Air I. 22, 1994.
Pollutants for Certain
Processes Subject to the
Negotiated Regulation for
Equipment Leaks.
Coke Ovens: By-Product Recovery National Emission Standard 40 CFR part 61 subpart 54 FR 38073, POM.
Plants. for Benzene Emissions from L. September 14, 1989.
Coke By-Product Recovery
Plants.
Coke Ovens: Charging, Topside & National Emission Standards 40 CFR part 63 subpart 58 FR 57898, October POM.
Door Leaks. for Hazardous Air L. 27, 1993.
Pollutants for Coke Oven
Batteries.
National Emission Standards 40 CFR part 63 subpart 68 FR 18007, April POM.
for Hazardous Air CCCCC. 14, 2003.
Pollutants for Coke Ovens:
Pushing, Quenching, and
Battery Stacks.
Coke Ovens: Pushing, Quenching & National Emission Standards 40 CFR part 63 subpart 58 FR 57898, October POM.
Battery Stacks. for Hazardous Air L. 27, 1993.
Pollutants for Coke Oven
Batteries.
National Emission Standards 40 CFR part 63 subpart 68 FR 18007, April POM.
for Hazardous Air CCCCC. 14, 2003.
Pollutants for Coke Ovens:
Pushing, Quenching, and
Battery Stacks.
Commercial Printing: Gravure....... National Emission Standards 40 CFR part 63 subpart 61 FR 27132, May 30, POM.
for Hazardous Air KK. 1996.
Pollutants: Printing and
Publishing Industry.
Electric Arc Furnaces (EAF)-- National Emission Standards 40 CFR part 63 subpart 72 FR 74088, December Mercury.
Secondary Steel. for Hazardous Air YYYYY. 28, 2007.
Pollutants for Area
Sources: Electric Arc
Furnace Steelmaking
Facilities.
Fabricated Metal Products.......... National Emission Standards 40 CFR part 63 subpart 69 FR 129, January 2, POM.
for Hazardous Air MMMM. 2004.
Pollutants: Surface
Coating of Miscellaneous
Metal Parts and Products.
Gasoline Distribution (Stage 1).... National Emission Standards 40 CFR part 63 subpart 59 FR 64303, December POM.
for Hazardous Air R. 14, 1994.
Pollutants for Gasoline
Distribution Facilities
(Bulk Gasoline Terminals
and Pipeline Breakout
Stations).
Gold Mines......................... National Emission Standards 40 CFR part 63 subpart 76 FR 9450, February Mercury.
for Hazardous Air EEEEEEE. 17, 2011.
Pollutants: Gold Mine Ore
Processing and Production
Area Source Category.
Hazardous Waste Incineration....... National Emission Standards 40 CFR part 63 subpart 64 FR 52827, POM, Mercury, PCB, Dioxins, Furans.
for Hazardous Air EEE. September 30, 1999;
Pollutants from Hazardous 70 FR 59402, October
Waste Combustors. 12, 2005.
Industrial Organic Chemicals National Emission Standards 40 CFR part 63 subpart 59 FR 19402, April POM.
Manufacturing. for Organic Hazardous Air F. 22, 1994.
Pollutants from the
Synthetic Organic Chemical
Manufacturing Industry.
National Emission Standards 40 CFR part 63 subpart 59 FR 19402, April POM.
for Organic Hazardous Air G. 22, 1994.
Pollutants from the
Synthetic Organic Chemical
Manufacturing Industry for
Process Vents, Storage
Vessels, Transfer
Operations, and Wastewater.
National Emission Standards 40 CFR part 63 subpart 59 FR 19402, April POM.
for Organic Hazardous Air H. 22, 1994.
Pollutants for Equipment
Leaks.
National Emission Standards 40 CFR part 63 subpart 59 FR 19402, April POM.
for Organic Hazardous Air I. 22, 1994.
Pollutants for Certain
Processes Subject to the
Negotiated Regulation for
Equipment Leaks.
Industrial Stationary IC Engines-- National Emission Standards 40 CFR part 63 subpart 69 FR 33473, June 15, POM.
Diesel. for Hazardous Air ZZZZ. 2004.
Pollutants for Stationary
Reciprocating Internal
Combustion Engines.
Industrial Stationary IC Engines-- National Emission Standards 40 CFR part 63 subpart 69 FR 33473, June 15, POM.
Natural Gas. for Hazardous Air ZZZZ. 2004.
Pollutants for Stationary
Reciprocating Internal
Combustion Engines.

[[Page 31474]]

Industrial/Commercial/Institutional National Emission Standards 40 CFR part 63 subpart 76 FR 15608, March POM, Mercury, Dioxins, Furans.
Boilers. for Hazardous Air DDDDD. 21, 2011.
Pollutants for Industrial/
Commercial/Institutional
Boilers and Process
Heaters.
National Emission Standards 40 CFR part 63 subpart 76 FR 15554, March POM, Mercury, Dioxins, Furans.
for Hazardous Air JJJJJJ. 21, 2011.
Pollutants for Area
Sources: Industrial,
Commercial, and
Institutional Boilers.
Lightweight Aggregate Kilns........ National Emission Standards 40 CFR part 63 subpart 64 FR 52827, Mercury, Dioxins, Furans.
for Hazardous Air EEE. September 30, 1999;
Pollutants from Hazardous 70 FR 59402, October
Waste Combustors. 12, 2005.
Medical Waste Incineration......... Standards of Performance 40 CFR part 60 subpart 74 FR 51367, October POM, Mercury, PCB, Dioxins, Furans.
and Emissions Guidelines Ce, Ec; & 40 CFR part 6, 2009.
for Hospitals/Medical/ 62 subpart HHH.
Infectious Waste
Incinerators.
Mercury Cell Chlor Alkali National Emission Standards 40 CFR part 63 subpart 68 FR 70903, December Mercury.
Production. for Hazardous Air IIIII. 19, 2003.
Pollutants: Mercury
Emissions from Mercury
Cell Chlor Alkali Plants.
Municipal Waste Combustion......... Standards of Performance 40 CFR part 60 subpart 71 FR 27324, May 10, POM, Mercury, PCB, Dioxins, Furans.
for New Stationary Sources Cb, Ea, Eb; & 40 CFR 2006.
and Emission Guidelines part 62 subpart FFF.
for Existing Sources:
Large Municipal Waste
Combustion Units.
Standards of Performance 40 CFR part 60 subpart 65 FR 76349, December POM, Mercury, PCB, Dioxins, Furans.
for New Stationary Sources AAAA, BBBB & 40 CFR 6, 2000; 65 FR
and Emission Guidelines part 62 subpart JJJ. 76337, December 6,
for Existing Stationary 2000.
Sources: Small Municipal
Waste Combustion Units.
Naphthalene Production............. National Emission Standards 40 CFR part 63 subpart 59 FR 19402, April POM.
for Organic Hazardous Air F. 22, 1994.
Pollutants from the
Synthetic Organic Chemical
Manufacturing Industry.
National Emission Standards 40 CFR part 63 subpart 59 FR 19402, April POM.
for Organic Hazardous Air G. 22, 1994.
Pollutants from the
Synthetic Organic Chemical
Manufacturing Industry for
Process Vents, Storage
Vessels, Transfer
Operations, and Wastewater.
National Emission Standards 40 CFR part 63 subpart 59 FR 19402, April POM.
for Organic Hazardous Air H. 22, 1994.
Pollutants for Equipment
Leaks.
National Emission Standards 40 CFR part 63 subpart 59 FR 19402, April POM.
for Organic Hazardous Air I. 22, 1994.
Pollutants for Certain
Processes Subject to the
Negotiated Regulation for
Equipment Leaks.
Paints and Allied Products (Major). National Emission Standards 40 CFR part 63 subpart 68 FR 63851, November POM.
for Hazardous Air FFFF. 10, 2003.
Pollutants: Miscellaneous
Organic Chemical
Manufacturing.
Paper Coated and Laminated, National Emission Standards 40 CFR part 63 subpart 67 FR 72329, December POM.
Packaging. for Hazardous Air JJJJ. 4, 2002.
Pollutants: Paper and
Other Web Coating.
Pesticides Manufacture & National Emission Standards 40 CFR part 63 subpart 64 FR 33549, June 23, HCB.
Agricultural Chemicals. for Hazardous Air MMM. 1999.
Pollutants: Pesticide
Active Ingredient
Production.
National Emission Standards 40 CFR part 63 subpart 59 FR 19402, April HCB.
for Organic Hazardous Air F. 22, 1994.
Pollutants from the
Synthetic Organic Chemical
Manufacturing Industry.
National Emission Standards 40 CFR part 63 subpart 59 FR 19402, April HCB.
for Organic Hazardous Air G. 22, 1994.
Pollutants from the
Synthetic Organic Chemical
Manufacturing Industry for
Process Vents, Storage
Vessels, Transfer
Operations, and Wastewater.
National Emission Standards 40 CFR part 63 subpart 59 FR 19402, April HCB.
for Organic Hazardous Air H. 22, 1994.
Pollutants for Equipment
Leaks.

[[Page 31475]]

Petroleum Refining: All Processes.. National Emission Standards 40 CFR part 63 subpart 60 FR 43244, August POM.
for Hazardous Air CC. 18, 1995.
Pollutants from Petroleum
Refineries.
National Emission Standards 40 CFR part 63 subpart 67 FR 17761, April POM.
for Hazardous Air UUU. 11, 2002.
Pollutants for Petroleum
Refineries: Catalytic
Cracking Units, Catalytic
Reforming Units, and
Sulfur Recovery Units.
Phthalic Anhydride Production...... National Emission Standards 40 CFR part 63 subpart 59 FR 19402, April POM.
for Organic Hazardous Air F. 22, 1994.
Pollutants from the
Synthetic Organic Chemical
Manufacturing Industry.
National Emission Standards 40 CFR part 63 subpart 59 FR 19402, April POM.
for Organic Hazardous Air G. 22, 1994.
Pollutants from the
Synthetic Organic Chemical
Manufacturing Industry for
Process Vents, Storage
Vessels, Transfer
Operations, and Wastewater.
National Emission Standards 40 CFR part 63 subpart 59 FR 19402, April POM.
for Organic Hazardous Air H. 22, 1994.
Pollutants for Equipment
Leaks.
National Emission Standards 40 CFR part 63 subpart 59 FR 19402, April POM.
for Organic Hazardous Air I. 22, 1994.
Pollutants for Certain
Processes Subject to the
Negotiated Regulation for
Equipment Leaks.
Plastics Material and Resins National Emission Standards 40 CFR part 63 subpart 61 FR 48208, POM.
Manufacturing. for Hazardous Air JJJ. September 12, 1996.
Pollutants for Group IV
Polymers and Resins.
Portland Cement Manufacture: National Emission Standards 40 CFR part 63 subpart 64 FR 52827, POM, Mercury, Dioxins, Furans.
Hazardous Waste Kilns. for Hazardous Air EEE. September 30, 1999;
Pollutants from Hazardous 70 FR 59402, October
Waste Combustors. 12, 2005.
Portland Cement Manufacture: Non- National Emission Standards 40 CFR part 63 subpart 75 FR 54970, POM, Mercury, Dioxins, Furans.
Hazardous Waste Kilns. for Hazardous Air LLL. September 9, 2010.
Pollutants for the
Portland Cement
Manufacturing Industry.
Primary Aluminum Production........ National Emission Standards 40 CFR part 63 subpart 62 FR 52384, October POM, Mercury, Dioxins, Furans.
for Hazardous Air LL. 7, 1997.
Pollutants for Primary
Aluminum Reduction Plants.
Pulp and Paper--Kraft Recovery National Emission Standards 40 CFR part 63 subpart 63 FR 18504, April POM, Mercury.
Furnaces. for Hazardous Air MM. 15, 1998; 66 FR
Pollutants for Chemical 3180, January 12,
Recovery Combustion 2001.
Sources at Kraft, Soda,
Sulfite, and Stand-Alone
Semichemical Pulp Mills.
Pulp and Paper--Lime Kilns......... National Emission Standards 40 CFR part 63 subpart 63 FR 18504, April POM, Mercury.
for Hazardous Air MM. 15, 1998; 66 FR
Pollutants for Chemical 3180, January 12,
Recovery Combustion 2001.
Sources at Kraft, Soda,
Sulfite, and Stand-Alone
Semichemical Pulp Mills.
Secondary Aluminum Smelting........ National Emission Standards 40 CFR part 63 subpart 65 FR 15689, March Dioxins, Furans.
for Hazardous Air RRR. 23, 2000.
Pollutants for Secondary
Aluminum Production.
Secondary Lead Smelting............ National Emission Standards 40 CFR part 63 subpart 60 FR 32587, June 23, POM, Dioxins, Furans.
for Hazardous Air X. 1995; 77 FR 555,
Pollutants for Secondary January 5, 2012.
Lead Smelting.
Sewage Sludge Incineration......... Standards of Performance 40 CFR part 60 76 FR 15372, March Mercury.
for New Stationary Sources subparts LLLL, MMMM. 21, 2011.
and Emission Guidelines
for Existing Sources:
Sewage Sludge Incineration
Units.
Ship Building and Repair (Surface National Emission Standards 40 CFR part 63 subpart 60 FR 64330, December POM.
Coating). for Hazardous Air II. 15, 1995.
Pollutants for
Shipbuilding and Ship
Repair (Surface Coating).
Transportation Equipment National Emission Standards 40 CFR part 63 subpart 69 FR 20967, April POM.
Manufacturing (SICs Combined). for Hazardous Air PPPP. 19, 2004; 69 FR
Pollutants: Surface 22601, April 26,
Coating of Plastic Parts 2004.
and Products.

[[Page 31476]]

Wood Household Furniture National Emission Standards 40 CFR part 63 subpart 60 FR 62930, December POM.
Manufacturing. for Hazardous Air JJ. 7, 1995.
Pollutants from Wood
Furniture Manufacturing
Operations.
--------------------------------------------------------------------------------------------------------------------------------------------------------

IV. Summary of Significant Comments and Responses

During the public comment period for the proposed determination, we
received comments from three organizations: the Council of Industrial
Boiler Owners (CIBO), the Coalition for Clean Air Implementation
(CCAI), and Sierra Club. The CIBO and CCAI submitted comments
supporting our proposed determination that we have fulfilled the CAA
section 112(c)(6) obligations and agreed with our use of surrogate
pollutants. Sierra Club submitted comments claiming that a number of
previously promulgated standards identified in the proposed
determination are unlawful for purposes of CAA section 112(d)(2) such
that those standards may not count toward satisfying the 90 percent
requirement in CAA section 112(c)(6). A summary of significant public
comments received during the comment period and the EPA's response to
those comments are provided below in this section of this preamble. All
the remaining public comments received during the comment period and
the EPA's responses to those comments are presented in the 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
document, which is available in the docket for this action.

A. General/Legal Opposition to the EPA's Surrogacy Determinations

Comment: One commenter states that ``for source categories listed
under section [112](c)(6), the EPA must set a MACT standard (i.e., a
standard under section [112](d)(2)-(3)) for each section 112(c)(6)
pollutant for which the source was listed.'' \4\ See Desert Citizens
Against Pollution v. EPA, 699 F.3d 524, 527-528 (D.C. Cir. 2012).\5\
Thus, the commenter states, ``to satisfy section 112(d)(2), the EPA
must determine the maximum achievable degree of reduction for each
hazardous air pollutant that a source category emits.'' The commenter
states that the CAA also specifies a ``floor'' for the reduction that
the EPA must require for each pollutant. Therefore, the commenter
believes that the EPA's claim that it can meet its obligations under
section 112(c)(6) by setting a single limit on the aggregate emissions
of all HAP from an industrial source category is contrary to the
language in CAA and violates the text of sections 112(c)(6) and 112(d),
reflecting an unreasonable statutory interpretation.
---------------------------------------------------------------------------

\4\ The commenter notes that section 112(c)(6) also allows the
EPA to set standards for these pollutants under section 112(d)(4) if
a health threshold has been established for that pollutant. CAA
sections 112(c)(6) and (d)(4). This provision is not at issue
because the EPA has not established health thresholds for any of the
section 112(c)(6) pollutants at issue here.
\5\ Accepting as ``reasonable'' the EPA's interpretation of
section 112 as requiring it to set section 112(d)(2) standards for
the section 112(c)(6) pollutants when it regulates a category of
area sources listed pursuant to section 112(c)(6).
---------------------------------------------------------------------------

The commenter states that although the EPA may set surrogate
standards for HAP where it is reasonable to do so, see National Lime,
233 F.3d at 637, setting surrogate standards instead of direct
standards for HAP does not, according to the commenter, excuse the EPA
from its clear statutory obligation to assure that each HAP emitted by
a source category is reduced to the extent that sections 112(d)(2)-(3)
requires. The commenter maintains that the United States Court of
Appeals for the District of Columbia Circuit has made clear, a
surrogate is reasonable only if it allows the EPA to identify ``the
best achieving sources, and what they can achieve'' with respect to the
target HAP. Sierra Club v. EPA, 353 F.3d 976, 985 (D.C. Cir. 2004).
As an example of a reasonable surrogate, the commenter asserts that
particulate matter (PM) is a reasonable surrogate for metallic HAP only
where the EPA demonstrates that (1) the metallic HAP are ``invariably
present'' in the surrogate pollutant such that there is a strong
correlation between the two; (2) the control technology used for PM
control ``indiscriminately captures'' the metallic HAP along with the
PM; and (3) the means by which sources achieve reductions in PM are the
only means by which they achieve reductions'' in metallic HAP
emissions. National Lime, 233 F.3d at 639; Sierra Club, 353 F.3d at
984. The commenter maintains that the United States Court of Appeals
for the District of Columbia Circuit has held repeatedly that what
sources ``achieve'' with respect to a given HAP is not limited to what
they achieve intentionally, but also includes lower emission levels
achieved through the use of cleaner fuels or raw materials regardless
of whether such use reflects any deliberate intent to reduce emissions.
Sierra Club v. EPA, 479 F.3d 875, 883 (D.C. Cir.2007) (citing National
Lime, 233 F.3d at 640).
The commenter states that the EPA's use of ``total HAP,'' ``total
organic HAP,'' and other such aggregate measures as ``surrogates'' for
pollutants that fit into those categories is a definition maneuver and
not a technical determination. The commenter states that this approach
to surrogacy is unlawful because it conflicts with EPA's statutory
obligation under sections 112(c)(6) and 112(d), and also the commenter
asserts with the EPA's own interpretation of those provisions, see
Desert Citizens, 699 F.3d at 527-28, which is that the EPA must set
MACT standards for each of the section 112(c)(6) pollutants for which
each source category was listed. The commenter states there is nothing
left of this obligation if the EPA can simply define a category of
pollutants (such as total HAP) broad enough to include all the
pollutants it must regulate and then set an aggregate limit for the
category.
Additionally, the commenter states that saying that POM is a
constituent of total HAP, for example, is just a different way of
saying it is a HAP--something that Congress already clearly indicated
by listing POM as a HAP in section 112(b). The commenter believes that
such statements do nothing to demonstrate that emissions of total HAP
identify the best performing sources with respect to POM and what
sources can achieve with respect to POM. The commenter believes that if
the EPA had authority to create surrogates by simply defining a group
of pollutants to include all the pollutants it must regulate, it would
abrogate the limits that decisions of the United States Court of
Appeals for

[[Page 31477]]

the District of Columbia Circuit have formulated to ensure that the
EPA's use of surrogates is reasonable. The commenter states that there
would be nothing left, for example, of the requirement that the HAP to
be regulated be ``invariably present'' in the surrogate pollutant,
National Lime, 233 F.3d at 639, if the EPA could simply define the
surrogate ``pollutant'' as a group of pollutants that includes the
regulated pollutant.
The commenter argues that section 112(c)(6) is a provision that
specifically addresses seven persistent bioaccumulative toxics that
Congress recognized were particularly harmful. The commenter believes
that for sources the EPA lists as contributing to 90 percent of the
total emissions of one or more of these pollutants, the EPA must set a
standard for that pollutant ensuring the maximum emissions reduction.
The commenter states that Congress would not have singled out these
seven pollutants if it intended for the EPA only to set a single limit
for the aggregate of emissions of all the different HAP.
The commenter states that even if it were permissible in general
for the EPA to evade its standard-setting obligations by defining the
surrogate ``pollutant'' as a group of pollutants, the EPA's surrogacy
claims in this rule are unlawful and arbitrary because they lack
supporting data or analysis. The commenter argues that the EPA's
surrogacy explanations in the proposed determination are standards
under section 307(d) because they are first-time claims that the
relevant pollutants are subject to standards. The EPA must according to
the commenter comply with the requirements of section 307(d) governing
CAA rulemakings for all of those previously issued standards. The
commenter maintains the EPA has not complied with these requirements
because according to the commenter the EPA has not provided
documentation, data, or analysis in support of its proposed
determination. For this reason, the commenter concludes that the EPA
has violated section 307(d) by failing to explain the ``methodology
used in obtaining the data and in analyzing the data'' in the proposed
determination, by failing to provide opportunity for informed public
participation and input, and by unlawfully basing the Agency's
conclusions on information or data which has not been made available to
the public through the docket. The commenter also believes that the EPA
has acted arbitrarily and capriciously by failing to provide
substantial record evidence in support of its proposed section
112(c)(6) determination, by failing to consider relevant factors, and
by failing to provide a rational connection between the facts found and
the conclusion made. Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State
Farm Mut. Auto. Ins. Co., 463 U.S. 29, 42-43. The commenter gives
examples of specific surrogacy claims for specific source categories
and processes that it believes are unlawful and arbitrary. We address
the specific claims in the 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 document, which is
available in the docket for this action.
Response: The commenter misinterprets the CAA, mischaracterizes the
EPA's proposed determination, and provides comments challenging the
substance of a number of previously issued EPA rules. As explained
below, the comments challenging the legitimacy of the standards on
which EPA relies to demonstrate it has satisfied its obligations under
CAA section 112(c)(6) are far outside the scope of the proposed CAA
section 112(c)(6) determination at issue. The EPA, therefore, has no
obligation to respond to those comments.
The proposed determination memorializes and provides notice that
the EPA has fulfilled, via numerous other previous regulatory actions,
its duties under section 112(c)(6) of the CAA. The proposal lists CAA
section 112(d)(2) or 112(d)(4) standards previously promulgated by the
EPA and proposed the conclusion that the listed standards cover sources
that, in the aggregate, emit 90 percent or more of the pollutants
specifically identified in CAA section 112(c)(6). The commenter does
not challenge that conclusion. In fact, no commenter suggests that the
source categories listed did not emit, in the aggregate prior to
regulation, 90 percent or more of the specified pollutants or that the
source categories are not subject to the CAA section 112(d)(2)
standards identified. Instead, the commenter seeks to use the proposed
determination to reopen standards that were finalized by the EPA in
some cases more than 20 years ago. The commenter argues that the EPA
must now demonstrate, for each previously promulgated rule, that each
standard reduces HAP ``to the extent that [112] (d)(2)-(3) requires,''
that in each rulemaking the EPA properly identified ``the best
performing sources,'' and that the EPA must provide documentation, data
and analysis to support the validity of the standards in the previously
promulgated rules. CAA section 112(c)(6) imposes no such obligation on
the EPA. As explained below, the commenter aims to collaterally attack
prior EPA actions. All comments that raise such collateral attacks are
outside the scope of the proposed CAA section 112(c)(6) determination.
All of the rules relied upon by the EPA in this determination were
promulgated through notice and comment rulemaking consistent with CAA
section 307(d), and were final agency actions subject to judicial
review. CAA section 112(c)(6) does not provide commenters another
opportunity to belatedly challenge these prior EPA actions, nor does it
mandate that the EPA re-promulgate or otherwise re-open for purposes of
section 112(c)(6) standards that were previously promulgated under
section 112(d)(2).
As an initial matter, it is important to understand the specific
duties that CAA section 112(c)(6) imposes on the EPA, especially since
the commenter consistently paraphrases the statutory language to assert
there are duties beyond which the CAA requires by its terms. CAA
section 112(c)(6) requires the EPA, with respect to seven specified
HAP--alkylated lead compounds, polycyclic organic matter,
hexachlorobenzene, mercury, polychlorinated biphenyls, 2,3,7,8-
tetrachlorodibenzofurans and 2,3,7,8-tetrachlorodibenzo-p-dioxin--to
``list categories and subcategories of sources assuring that sources
accounting for not less than 90 per centum of the aggregate emissions
of each such pollutant are subject to standards under subsection (d)(2)
or (d)(4) of this section.'' The provision requires the listing to be
done by November 15, 1995, and requires that sources accounting for not
less than 90 percent of aggregate emissions of each of the enumerated
pollutants be subject to CAA section 112(d)(2) or (4) standards by
November 15, 2000. CAA section 112(c)(6) does not require the EPA to
submit a report stating that the agency has subjected those sources to
such standards, or establish a deadline for any such report. Sierra
Club v. EPA, 699 F.3d 530, 536 (D.C. Cir. 2012) (Henderson
Concurring)(``EPA is under no obligation, statutory or otherwise, to
inform anyone that it has satisfied the requirements of section
112(c)(6).''). Moreover, while CAA section 112(c)(6) gives the EPA
authority to list source categories, the rules which establish
standards for those source categories are promulgated pursuant to
separate CAA provisions.
The CAA section 112(d)(2) standards (also referred to as maximum
achievable control technology or MACT standards), which commenter seeks
to collaterally

[[Page 31478]]

attack, regulate HAP emitted from major sources and in some instances
area sources and were promulgated in accordance with the following CAA
provisions. CAA section 112(c)(1) requires the EPA to list all major
sources and authorizes the EPA to list area sources, and section
112(d)(1) requires the EPA to regulate all HAP from major sources
pursuant to CAA section 112(d)(2) or (d)(4). CAA section 112(e)(1)(A)-
(E) imposes sequential milestones for the EPA to complete issuance of
MACT standards, and requires that the final set of such standards be
promulgated by November 15, 2000, the same date by which under CAA
section 112(c)(6) sources accounting for 90 percent of the enumerated
HAP were required to have become subject to CAA section 112(d)(2) or
(4) standards. Therefore, for major sources, CAA section 112(c)(6) is
redundant with respect to the HAP to be regulated, the type of
standards required, and the ultimate timing for completion of issuing
such standards. The HAP specifically listed in CAA section 112(c)(6)
are also on the CAA section 112(b)(1) list of HAP and, thus, the CAA
section 112(d)(1) obligation to set CAA section 112(d)(2) or (d)(4)
standards for all HAP from major sources applies equally to the CAA
section 112(c)(6) HAP. CAA section 112(c)(6) adds nothing substantive
to this requirement. Even the CAA section 112(e)(1) deadlines for
promulgating such standards is ultimately identical to the deadline in
CAA section 112(c)(6).\6\ As such, it is irrelevant whether the EPA
mentioned CAA section 112(c)(6) during the rulemaking for any standard
for a major source category, including standards where the Agency
regulated the area sources in the category at the same time and in the
same manner as the major sources (i.e. pursuant to CAA section
112(d)(2)).\7\
---------------------------------------------------------------------------

\6\ The primary impacts of CAA section 112(c)(6) are to require
the EPA to list area sources if major sources do not account for at
least 90 percent of each of the seven HAP, and to limit the EPA's
discretion to set so-called generally available control technology
or GACT standards for area sources. Most relevant here is the
limitation on the EPA's authority to establish GACT standards. CAA
section 112(d)(5) provides that, for listed area sources, the EPA
may set emission standards that ``provide for the use of generally
available control technologies or management practices by such
sources to reduce emissions of hazardous air pollutants.'' CAA
section 112(c)(6) removes the EPA's discretion to establish GACT
standards for the seven section 112(c)(6) HAP emitted if an area
source category must be regulated pursuant to CAA section 112(d)(2)
or (4) to ensure that sources accounting for not less than 90
percent of the seven HAP are subject to CAA section 112 (d)(2) or
(d)(4) standards. As shown in this notice, none of the standards
applicable to area sources that the EPA listed and relied on to
demonstrate that it has met its obligations under CAA section
112(c)(6) were established pursuant to CAA section 112(d)(5).
\7\ Several of the rulemakings that the commenter collaterally
attacks regulated major and area sources together and the Agency
established the same section CAA section 112(d)(2) standard for both
the major and the area sources in the categories. The commenter
makes no distinction between major and area sources in its comments.
---------------------------------------------------------------------------

For all the rules that the commenter seeks to collaterally attack,
the public was on notice during each specific rulemaking that the EPA
was setting MACT standards for the HAP, including the CAA section
112(c)(6) HAP, emitted by the source category. Parties, including the
commenter, could have challenged the adequacy of those standards at the
time they were issued if they believed the standards did not
sufficiently reduce the HAP emitted by the source category, in whatever
manner those standards took with respect to regulating each HAP
individually or collectively through a surrogate. See National Lime
Association v. EPA, 33 F.3d 625, 633-34 (D.C. Cir. 2000) (finding that
CAA section 112(d)(1) requires the EPA to establish standards for all
HAP emitted from major sources). Any challenges to the legitimacy of
the standards, including challenges suggesting that certain HAP were
not adequately regulated, should have been raised during the rulemaking
for the standards. If any issue remained when the standards were
finalized, the proper recourse would have been to petition for judicial
review pursuant to CAA section 307(b). That provision provides that
``[a] petition for review of action of the [EPA] Administrator in
promulgating . . . any emission standard or requirement under section
112 of this title . . . shall be filed within sixty days from the date
notice of such promulgation. . . . appears in the Federal Register. . .
.'' CAA section 307(b)(1). Once the 60-day period has lapsed, a party
may not raise arguments that ``were available to them at the time the
rule was adopted.'' Nat'l Mining Ass'n v. DOI, 70 F.3d 1345, 1350 (D.C.
Cir. 1995).
For the reasons stated above, because the commenter challenges the
sufficiency of the underlying standards as they apply to certain CAA
section 112(c)(6) HAP, the commenter should have raised these issues in
timely, direct challenges to those rules. CAA section 112(c)(6) does
not allow for challenges to the legitimacy of CAA section 112(d)
standards adopted in prior rulemakings outside the 60-day window for
challenging those standards established in CAA section 307(b)(1).
Moreover, in the proposed determination, EPA did not re-opened those
previously promulgated standards, either to review their adequacy for
controlling any emitted HAP (including section 112(c)(6) HAP) under
section 112(d)(2), or for any other purpose. Therefore, this final
determination itself cannot provide a new opportunity to challenge
those previously promulgated rules under either section 112(d)(2) or
section 112(c)(6).
In addition to raising belated comments, the commenter argues that
CAA section 112(c)(6) requires the EPA to set a ``specific limit'' for
each of the CAA section 112(c)(6) HAP. It is not clear what the
commenter means by a ``specific limit.'' The commenter may be arguing
that the EPA cannot rely on CAA section 112(d)(2) or (d)(4) standards
that use surrogates to demonstrate that it has satisfied its obligation
under CAA section 112(c)(6). However, it appears that the commenter is
arguing that CAA section 112(c)(6) somehow limits the EPA's discretion
to use particular types of surrogates when setting MACT standards. The
commenter specifically objects to the EPA's standard for total HAP or
total hazardous organic pollutants. There is no statutory support for
either argument. Indeed, as other sections of the CAA illustrate,
Congress knew how to require pollutant-specific standards. For example,
CAA section 129(a)(4) explicitly requires the EPA to set numeric
standards ``for the [enumerated] substances or mixtures'' listed in
that subsection. That provision expressly requires the EPA to set
numerical emissions limitations ``for'' a list of nine substances
emitted by solid waste incineration units, and expressly authorizes the
regulation of other pollutants through, among other things, surrogate
standards. Unlike CAA section 129(a)(4), the terms of CAA section
112(c)(6) do not direct the EPA to set such standards ``for'' the CAA
section 112(c)(6) HAP. Congress conspicuously did not take this
approach in CAA section 112(c)(6), and, thus, left intact the EPA's
discretion to establish surrogate standards.
CAA section 112(c)(6) requires the Agency to assure that ``sources
accounting for'' at least 90 percent of the emissions of the listed HAP
are ``subject to standards'' under CAA sections 112(d)(2) or (d)(4),
without specifying the form of those standards, or how those standards
must operate or be applied to those sources. The provision does not
expressly state that the EPA can meet CAA section 112(c)(6) only by
setting specific standards ``for'' the listed HAP, unlike CAA section
129(a)(4). As the commenter notes, the United States Court of Appeals
for the District of Columbia Circuit upheld the

[[Page 31479]]

EPA's approach of satisfying its general obligation under CAA section
112 to set standards through surrogates, as long as the choice of the
surrogate is itself reasonable. National Lime Ass'n v. EPA, 233 F.3d
625, 634, 637 (D.C. Cir. 2000); see also, e.g., Sierra Club v. EPA, 353
F.3d 976, 982-85 (D.C. Cir. 2004). In fact, in the National Lime
decision, instead of mandating that the EPA set a specific standard for
each metallic HAP, the Court held that the EPA's standards for PM as a
surrogate for regulating the aggregate metallic HAP was reasonable. 233
F.3d at 639.
Moreover, CAA section 112(c)(6) contains a numeric benchmark only
as to source categories responsible for the percentage of aggregate
baseline emissions that must be controlled, not the amount of emissions
of each enumerated HAP that must be reduced. As this Court explained in
National Lime, where ``EPA is under no obligation to achieve a
particular numerical reduction in HAP . . . emissions,'' but rather
only to apply MACT based on the HAP reductions ``achieved'' by certain
facilities, ``then the EPA may require . . . control [of a surrogate]
without quantifying the reduction in [the target] HAP . . . thus
achieved.'' 233 F.3d at 639. The same rationale applies here, where the
EPA's only obligation under CAA section 112(c)(6) is to apply the same
MACT standard considered in National Lime to particular sources
accounting for 90 percent of emissions of the CAA section 112(c)(6)
HAP. The EPA has set standards pursuant to CAA sections 112(d)(2) or
(d)(4) regulating emissions of substances identified as surrogates for
the CAA section 112(c)(6) HAP, and those standards reduce the CAA
section 112(c)(6) HAP; thus, the EPA has fully met its obligation to
set standards assuring that source categories accounting for not less
than 90 percent of the aggregate emissions of the CAA section 112(c)(6)
pollutants at issue are subject to section 112(d)(2) or (4) standards.
The commenter also contends that the present determination
constitutes a separate CAA 307(d) rulemaking with regard to many of the
previously and elsewhere promulgated surrogate standards that the EPA
credits towards satisfying the requirement in CAA section 112(c)(6)
that source categories accounting for 90 percent of the aggregate
enumerated HAP be subjected to CAA section 112(d)(2) or (4) standards.
The commenter argues that the EPA must demonstrate anew the validity of
the prior separate rulemaking actions and provide data and
documentation to support specific aspects of those rules to satisfy the
general rulemaking requirements of CAA section 307(d) and the
requirements of CAA section 112. There is no statutory basis for this
argument, which is an attempt to use this non-statutorily required
determination that the EPA has satisfied its CAA section 112(c)(6)
obligation to reopen numerous rules, many of which were finalized over
a decade ago, as a means to force a non-required re-opening of such
standards. Moreover, the commenter's assertion that the proposed CAA
section 112(c)(6) determination was the first time the EPA provided
notice of its claim that the surrogate standards were being credited
for controlling the CAA section 112(c)(6) HAP is inaccurate, assuming
it is even relevant (nothing in section 112(c)(6), after all, requires
EPA to ``provide notice,'' either sequentially or ultimately, that the
Agency has finally discharged its duty to set section 112(d)(2)
standards for the subject source categories accounting for 90 percent
of the aggregate section 112(c)(6) HAP. In any event, contrary to the
commenter's assertion, the EPA provided such notice of its expectations
to discharge its section 112(c)(6) responsibilities when the Agency
published the 1998 listing notice identifying the source categories
that, based on the 1990 emissions inventory, are responsible for 90
percent of the aggregate emissions of each of the seven pollutants
identified in section 112(c)(6) from stationary, anthropogenic sources
(i.e., sources within the scope of CAA sections 112 and/or 129).\8\ 63
FR 17838 (April 10, 1998) (``1998 listing notice''). Included on the
list were the MACT standards for the source categories at issue in this
comment, and most of the specific standards in the comments were
promulgated prior to the 1998 listing. The commenter's argument that
the proposed determination constitutes the first time notice was given
is without merit for any source category listed in the 1998 notice,
particularly for those source categories that were regulated after that
listing was published in the Federal Register. The argument is also
without merit for the standards issued prior to the 1998 notice. While
the EPA might not have identified at the time some of these standards
were issued that the EPA would count the standards towards meeting the
90 percent requirement in CAA section 112(c)(6), such intent was made
public in the 1998 notice. Further, as discussed above, the public was
on notice at the time the EPA established these MACT standards that the
standards would regulate the HAP, including the CAA section 112(c)(6)
HAP, emitted from the source categories. If the commenter believed that
the prior actions did not sufficiently control the HAP, including the
CAA section 112(c)(6) HAP, from those source categories, the commenter
had a responsibility to make those assertions at the time the Agency
established the CAA section 112(d) standards. This applied equally to
the comments questioning the surrogate standards. The commenter should
have raised its concerns with the surrogate standards for ``total HAP''
or ``total organic HAP'' at the time the standards were issued if it
believed such surrogates are not reasonable or in compliance with the
CAA. In any event, the commenter's claim that the proposed
determination was the first time notice is refuted by the
administrative petitions the commenter filed in 1999, subsequent to the
1998 notice, requesting the EPA to revise some of the standards
included in the 1998 notice and addressed in the comments on the
proposed CAA section 112(c)(6) determination at issue. In a letter
dated January 19, 2001, the EPA denied the petitions, explaining how
each of these standards meet the CAA section 112(c)(6) requirement in
addressing the HAP enumerated in that section.\9\
---------------------------------------------------------------------------

\8\ The EPA has updated the 1998 listing several times to remove
source categories no longer needed to meet the CAA section 112(c)(6)
requirement based on updated information, and to add source
categories subsequently determined to be necessary to reach the 90
percent threshold. See, e.g., 76 FR 9450 (February 17, 2011) (adding
Gold Mine source category); 73 FR 1916 (January 10, 2008)
(finalizing decision not to regulate gasoline distribution area
sources under CAA section 112(c)(6)); 72 FR 53814 (September 20,
2007) (adding Electric Arc Furnace Steelmaking Facility area source
category); 67 FR 68124 (November 8, 2002) (removing several source
categories).
\9\ Letter from Browner to Pew, Response to Sierra Club Petition
to Revise Regulations for the SOCMI Category, Coke Oven Batteries,
Petroleum Refineries, Medical Waste Incinerators, and Municipal
Waste Combustors (dated January 25, 1999)(January 19, 2001).
---------------------------------------------------------------------------

Section 112(c)(6) does not require that the EPA take an additional,
separate final regulatory action to re-open any previously promulgated
standards, and the EPA in fact did not reopen these prior actions in
the proposed CAA section 112(c)(6) determination. Therefore, the
proposed notice does not support a belated, backdoor attack on rules
that were in some cases issued more than 20 years ago. The proposed CAA
section 112(c)(6) determination is a simple, discretionary accounting
of the EPA's previous regulatory efforts, explaining in mathematical
terms that the EPA has previously listed sources

[[Page 31480]]

and promulgated HAP standards sufficient to satisfy the requirement
that sources needed for meeting the 90 percent requirement for each of
the CAA section 112(c)(6) HAP have, in fact, become subject to
standards under CAA sections 112(d)(2) or (4). While the proposed
determination in some instances clarifies the surrogacy relationship
between the established standards and the relevant CAA section
112(c)(6) HAP, the proposal does not discuss or attest to the substance
of the standards previously promulgated for each listed category and
subcategory because those standards have been subject to their own
notice and comment rulemaking processes, and, in several cases, to
judicial review as provided by the strict statute of limitations
imposed by CAA section 307(b)(1). The proposed determination only
provides the mathematical and technical basis for the EPA's calculation
that the sources in the categories and subcategories for which it has
separately promulgated emission standards account for 90 percent of the
baseline emissions of the CAA section 112(c)(6) HAP.
The United States Court of Appeals for the District of Columbia
Circuit specified in Oljato Chapter of Navajo Tribe v. Train, 515 F.2d
654, 666 (D.C. Cir. 1975), a procedure for pursuing claims that new
information merits revision of a previous agency regulation: The
prospective petitioner must first bring the new information to the
Agency's attention in an administrative petition seeking revision of
the prior regulation. CAA Section 553(d) of the Administrative
Procedure Act (APA) also explicitly allows parties to petition the
Agency to amend a rule. A party that identifies new information that it
believes undermines the legitimacy of an existing standard may, at any
time, petition the Agency to review and revise that standard. Any party
that believed an existing MACT standard was deficient because it failed
to adequately address one or more HAP emitted by the source category
could have submitted a petition asking the EPA to consider the new
information and amend the existing rule to cure any alleged deficiency.
In addition, as discussed above, the 1998 listing notice provided
sufficient notice that the EPA intended to rely on previously issued
MACT standards to satisfy the CAA section 112(c)(6) requirement, to the
extent that the public did not recognize that it was already on notice
regarding the MACT standards' applicability to all HAP emitted by the
source categories at the time those standards were issued. If the
commenter believed one or more of the standards listed in that 1998
notice did not adequately address the CAA section 112(c)(6) HAP, it
should have filed an administrative petition making the argument that
the 1998 notice constituted new information concerning the substance of
those previously issued standards and asked the EPA to amend the
original rules that established the MACT standards. In fact, as stated
above, the commenter filed an administrative petition on several of the
rules addressed in its comments and did not challenge the EPA's denial
of that 2001 petition. Assuming arguendo that the 1998 notice provided
an opportunity to challenge the previously issued MACT standards, any
such challenge is now time barred because the commenter should have
brought the challenge to those rules within 6 years of the 1998 notice,
wherein the EPA included those source categories in the CAA section
112(c)(6) inventory. See 28 U.S.C. 2401(a) (requiring civil actions
against the United States to be brought within 6 years after the right
of action first accrues). For source categories included in but
regulated after the 1998 listing, the commenter was on notice and
should have commented directly on surrogacy and other issues at the
time the standards were promulgated, even if the EPA did not reiterate
in the rulemaking record that the EPA was counting those sources'
standards toward the 90 percent requirement.
The commenter's main concern appears to be the EPA's use of ``total
HAP'' or ``total organic HAP'' as surrogates for certain CAA section
112(c)(6) HAP. The commenter claims such approach is unlawful under the
plain language of CAA section 112(c)(6) because according to the
commenter that provision requires the EPA to set a MACT standard
``for'' ``each section 112(c)(6) HAP.'' In support, the commenter cites
a United States Court of Appeals for the District of Columbia Circuit
opinion in a case reviewing the NESHAP for the Gold Mine Ore Processing
and Production area source category (``the Gold Mine area source
rule''). See Desert Citizens Against Pollution v. EPA, 699 F.3d 524
(D.C. Cir. 2012). As explained above, the commenter's interpretation of
CAA section 112(c)(6) to require a specific MACT standard for ``each
section 112(c)(6) HAP'' is unsupported by the plain text of the
statute. Unlike CAA section 129(a)(4), the terms of CAA section
112(c)(6) do not direct the EPA to set such standards ``for'' the
section 112(c)(6) HAP. Further, nothing in the United States Court of
Appeals for the District of Columbia Circuit opinion or the Gold Mine
area source rule referenced in the comment addresses the issue of
surrogacy. This is not surprising considering that rule directly
regulates mercury, the only CAA section 112(c)(6) HAP emitted from the
Gold Mine area sources. The relevant issue in that case was whether the
EPA must also set CAA section 112(d)(2) standards for all of the non-
CAA section 112(c)(6) HAP emitted by the Gold Mine area sources. The
Court upheld the EPA's interpretation that CAA section 112(c)(6) does
not impose such requirement on non-CAA section 112(c)(6) HAP emitted
from area sources just because they emit one or more CAA section
112(c)(6) HAP (in this case, just mercury). The commenter also suggests
that its claim is supported by the EPA's own interpretation, but does
not cite or reference any specific EPA statement. In any event,
interpretations and statements the EPA made in support of the Gold Mine
area source rule were specific to those area sources and should not be
taken out of context.
To the extent the commenter is claiming that a surrogate cannot be
a group of HAP (e.g., total organic HAP or total HAP), the commenter's
interpretation of CAA section 112(c)(6) contradicts the United States
Court of Appeals for the District of Columbia Circuit's decision in
National Lime, 233 F.3d at 639. In that decision, the Court held that
PM, which is itself comprised of a group of pollutants, is a reasonable
surrogate for metallic HAP, see National Lime, 233 F.3d at 639. Neither
PM nor metallic HAP is a single HAP; each has various pollutants as
constituents. As the Court holds, the EPA may set surrogate standards
for HAP where it is reasonable to do so, see National Lime, 233 F.3d at
637. Therefore, a surrogate can be one or multiple pollutants as long
as it is reasonable, and the reasonableness of the use of a surrogate
can be properly challenged only at the time the standards are
promulgated.
For the reasons stated above, the EPA is not required in this
action to re-evaluate previously promulgated MACT standards and respond
to the belated comments on the substance of these standards, as the
commenter claims. Congress deliberately promoted the value of finality
of the EPA's standards in requiring parties to challenge rules within
60 days of promulgation under CAA section 307(b)(1), and in precluding
opportunities to randomly challenge standards in post-promulgation fora
such as civil or criminal enforcement proceedings. See CAA section
307(b)(2). Moreover, nothing in CAA section 112(c)(6) serves as an
exception to this emphasis on

[[Page 31481]]

finality and regulatory repose, given that CAA section 112(c)(6) itself
does not require the EPA to issue any final notice or take any other
final action that functions to re-open previously promulgated standards
that are credited to meeting the 90 percent requirement. If, in fact,
additional control of HAP, including CAA section 112(c)(6) HAP, is
appropriate because of remaining risk or newly available control
technologies or practices, the CAA addresses that possibility by
requiring review of CAA section 112(d)(2) standards pursuant to CAA
sections 112(d)(6) and (f)(2). Thus, the commenter has had and will
have additional opportunities to address whether additional control of
the section 112(c)(6) HAP is warranted.

V. Statutory and Executive Order Reviews

Additional information about these statutes and Executive Orders
can be found at http://www2.epa.gov/laws-regulations/laws-and-executive-orders.

A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review

This action is not a significant regulatory action and was,
therefore, not submitted to the Office of Management and Budget (OMB)
for review.

B. Paperwork Reduction Act (PRA)

This action does not impose an information collection burden under
the PRA because it does not contain any information collection
activities.

C. Regulatory Flexibility Act (RFA)

I certify that this action will not have a significant economic
impact on a substantial number of small entities under the RFA. This
action will not impose any requirements on small entities. This action
does not alter any of the standards discussed in this document.

D. Unfunded Mandates Reform Act (UMRA)

This action does not contain any unfunded mandate as described in
UMRA, 2 U.S.C. 1531-1538 and does not significantly or uniquely affect
small governments. The action imposes no enforceable duty on any state,
local or tribal governments or the private sector.

E. Executive Order 13132: Federalism

This action does not have federalism implications. It will not have
substantial direct effects on the states, on the relationship between
the national government and the states or on the distribution of power
and responsibilities among the various levels of government.

F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments

This action does not have tribal implications, as specified in
Executive Order 13175. This action does not materially alter the
stringency of any standards discussed in this document. Thus, Executive
Order 13175 does not apply to this action.

G. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks

This action is not subject to Executive Order 13045 because the EPA
does not believe the environmental health risks or safety risks
addressed by this action present a disproportionate risk to children. A
health and risk assessment was not performed for this action because it
does not alter any of the regulations discussed in this action.

H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use

This action is not subject to Executive Order 13211, because it is
not a significant regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act

This rulemaking does not involve technical standards.

J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations

The EPA believes the human health or environmental risk addressed
by this action will not have potential disproportionately high and
adverse human health or environmental effects on minority, low income
or indigenous populations because it does not affect the level of
protection provided to human health or the environment. An
environmental justice evaluation was not performed for this action
because it does not alter any of the regulations discussed in this
action.

K. Congressional Review Act (CRA)

This action is subject to the CRA, and the EPA will submit a rule
report to each House of the Congress and to the Comptroller General of
the United States. This action is not a ``major rule'' as defined by 5
U.S.C. 804(2).

Dated: May 22, 2015.
Gina McCarthy,
Administrator.
[FR Doc. 2015-13500 Filed 6-2-15; 8:45 am]
BILLING CODE 6560-50-P

31470 Federal Register / Vol. 80, No. 106 / Wednesday, June 3, 2015 / Rules and Regulations

revision of the enforcement period in 33 the EPA completed its statutory A. What are the emissions standards that
CFR 165.1312(d). This rule is obligation under the Clean Air Act the EPA has promulgated to meet the 90
categorically excluded from further (CAA) to promulgate emissions percent requirement under CAA section
review under paragraph 34(g) of Figure standards for source categories 112(c)(6)?
B. What are the surrogate pollutants used
2–1 of the Commandant Instruction. We accounting for not less than 90 percent by the EPA when establishing CAA
seek any comments or information that of the aggregated emissions of each of section 112(d)(2) standards for the source
may lead to the discovery of a seven specific hazardous air pollutants categories identified in the proposed
significant environmental impact from (HAP) enumerated in the CAA. On determination?
this rule. December 16, 2014, the EPA published IV. Summary of Significant Comments and
the proposed determination that stated Responses
List of Subjects in 33 CFR Part 165 A. General/Legal Opposition to the EPA’s
the basis for the agency’s conclusion
Harbors, Marine safety, Navigation that it completed this obligation in Surrogacy Determinations
(water), Reporting and recordkeeping February of 2011 by identifying the V. Statutory and Executive Order Reviews
requirements, Security measures, A. Executive Order 12866: Regulatory
promulgated standards that collectively Planning and Review and Executive
Waterways. satisfy this obligation and provided the Order 13563: Improving Regulation and
For the reasons discussed in the public an opportunity to comment on Regulatory Review
preamble, the Coast Guard amends 33 the EPA’s determination. This action B. Paperwork Reduction Act (PRA)
CFR part 165 as follows: finalizes the EPA’s determination. C. Regulatory Flexibility Act (RFA)
DATES: This action is effective on June D. Unfunded Mandates Reform Act
PART 165—REGULATED NAVIGATION 3, 2015. (UMRA)
AREAS AND LIMITED ACCESS AREA. E. Executive Order 13132: Federalism
ADDRESSES: The EPA has established a F. Executive Order 13175: Consultation
■ 1. The authority citation for part 165 docket for this rulemaking under Docket and Coordination With Indian Tribal
continues to read as follows: ID Number EPA–HQ–OAR–2004–0505. Governments
All documents in the docket are listed G. Executive Order 13045: Protection of
Authority: 33 U.S.C. 1231; 50 U.S.C. 191; Children From Environmental Health
in the http://www.regulations.gov index.
33 CFR 1.05–1, 6.04–1, 6.04–6, and 160.5; Risks and Safety Risks
Department of Homeland Security Delegation Although listed in the index, some
information is not publicly available, H. Executive Order 13211: Actions
No. 0170.1. Concerning Regulations That
e.g., confidential business information
■ 2. In § 165.1312 revise paragraph (d) Significantly Affect Energy Supply,
(CBI) or other information whose Distribution, or Use
to read as follows: disclosure is restricted by statute. I. National Technology Transfer and
§ 165.1312 Security Zone; Portland Rose
Certain other material, such as Advancement Act
Festival on Willamette River. copyrighted material, will be publicly J. Executive Order 12898: Federal Actions
available only in hard copy. Publicly To Address Environmental Justice in
* * * * * Minority Populations and Low-Income
available docket materials are available
(d) Enforcement period. This section Populations
either electronically in http://
is enforced annually in June. The event K. Congressional Review Act (CRA)
www.regulations.gov or in hard copy at
will be 6 days in length and the specific
the EPA Docket Center, EPA WJC West I. General Information
dates of enforcement will be published
Building, Room 3334, 1301 Constitution
each year in the Federal Register. In A. Where can I get a copy of this
Ave. NW., Washington, DC. The Public
2015, the zone will be enforced on document?
Reading Room is open from 8:30 a.m. to
Wednesday, June 3, through Monday,
4:30 p.m., Monday through Friday, In addition to being available in the
June 8.
excluding legal holidays. The telephone docket, an electronic copy of this final
Dated: May 11, 2015. number for the Public Reading Room is action will also be available on the
D.J. Travers, (202) 566–1744, and the telephone Internet through the EPA’s Technology
Captain, U.S. Coast Guard, Captain of the number for the EPA Docket Center is Transfer Network (TTN) Web site, a
Port, Sector Columbia River. (202) 566–1742. forum for information and technology
[FR Doc. 2015–13397 Filed 6–2–15; 8:45 am] FOR FURTHER INFORMATION CONTACT: For exchange in various areas of air
BILLING CODE 9110–04–P questions about this action, contact Mr. pollution control. Following signature
Nathan Topham, Office of Air Quality by the EPA Administrator, the EPA will
Planning and Standards; Sector Policies post a copy of this final action at:
ENVIRONMENTAL PROTECTION and Programs Division, Metals and http://www.epa.gov/ttn/atw/
AGENCY Inorganic Chemicals Group (D243–02); eparules.html. Following publication in
Environmental Protection Agency; the Federal Register, the EPA will post
40 CFR Part 63 Research Triangle Park, NC 27111; the Federal Register version of the rule
[EPA–HQ–OAR–2004–0505; FRL–9928–25– telephone number: (919) 541–0483; fax at this same Web site.
OAR] number: (919) 541–3207; email address: B. Judicial Review
topham.nathan@epa.gov.
RIN 2060–AS42 Under CAA section 307(b)(1), judicial
SUPPLEMENTARY INFORMATION:
Organization of this document. The review of this final action is available
Completion of Requirement To only by filing a petition for review in
information presented in this preamble
asabaliauskas on DSK5VPTVN1PROD with RULES

Promulgate Emissions Standards the United States Court of Appeals for
is organized as follows:
AGENCY: Environmental Protection the District of Columbia Circuit by
I. General Information August 3, 2015. Under CAA section
Agency (EPA). A. Where can I get a copy of this
ACTION: Final rule. document?
307(b)(2), the requirements established
B. Judicial Review by this final rule may not be challenged
SUMMARY: In this action the II. Background Information separately in any civil or criminal
Environmental Protection Agency (EPA) III. How has the EPA satisfied its obligation proceedings brought by the EPA to
finalizes its proposed determination that under CAA section 112(c)(6)? enforce the requirements. Section

VerDate Sep<11>2014 16:13 Jun 02, 2015 Jkt 235001 PO 00000 Frm 00010 Fmt 4700 Sfmt 4700 E:\FR\FM\03JNR1.SGM 03JNR1

Federal Register / Vol. 80, No. 106 / Wednesday, June 3, 2015 / Rules and Regulations 31471

307(d)(7)(B) of the CAA further provides degree of reduction in emissions of the December 2014 proposal provided a list
that ‘‘[o]nly an objection to a rule or [HAP]’’ that the EPA concludes are of the emissions standards, including
procedure which was raised with achievable based on a consideration of the name of each of the source
reasonable specificity during the period factors identified in the statute. CAA categories, the name of the emissions
for public comment (including any section 112(d)(2). These standards are standards that apply, and the rule
public hearing) may be raised during referred to as ‘‘maximum achievable citation for each (i.e., CFR part and
judicial review.’’ This section also control technology’’ or ‘‘MACT’’ subpart). 79 FR 74674–74677, December
provides a mechanism for us to convene standards. CAA section 112(d)(4) 16, 2014. Table 3 of the 2014 proposal
a proceeding for reconsideration, ‘‘[i]f authorizes the EPA to set a health-based provided a list of the specific
the person raising an objection can standard for a limited set of HAP for regulations (including CFR citations,
demonstrate to the EPA that it was which a health threshold has been part and subpart) that address 90
impracticable to raise such objection established, and that standard must percent or more of each of the CAA
within [the period for public comment] provide for ‘‘an ample margin of safety.’’ section 112(c)(6) HAP. 79 FR at 74677.
or if the grounds for such objection CAA section 112(d)(4). After considering and evaluating all
arose after the period for public On December 16, 2014, the EPA public comments received in response
comment (but within the time specified published in the Federal Register the to the proposed rule, we finalize our
for judicial review) and if such objection proposed determination concluding that determination that the EPA has satisfied
is of central relevance to the outcome of the requirements of CAA section the CAA section 112(c)(6) requirement
the rule.’’ Any person seeking to make 112(c)(6) were fulfilled in February of to establish CAA section 112(d)(2) or (4)
such a demonstration to us should 2011. 79 FR 74656 (December 16, standards for source categories that
submit a Petition for Reconsideration to 2014).1 The proposed determination account for not less than 90 percent of
the Office of the Administrator, U.S. provided a detailed summary of the the seven HAP listed in CAA section
EPA, Room 3000, EPA WJC West litigation history regarding this action 112(c)(6).
Building, 1200 Pennsylvania Ave. NW., and provided an opportunity for
comment on the EPA’s proposed B. What are the surrogate pollutants
Washington, DC 20460, with a copy to
both the person(s) listed in the determination that it has fulfilled the used by the EPA when establishing CAA
preceding FOR FURTHER INFORMATION requirements of CAA section 112(c)(6). section 112(d)(2) standards for the
CONTACT section, and the Associate The proposed rulemaking explained the source categories identified in the
General Counsel for the Air and basis for the agency’s proposed proposed determination?
Radiation Law Office, Office of General determination by identifying the As noted in the proposed rule, the
Counsel (Mail Code 2344A), U.S. EPA, promulgated CAA section 112(d)(2) or emissions standards that collectively
1200 Pennsylvania Ave. NW., 112(d)(4) standards that collectively satisfy the 90 percent requirement under
Washington, DC 20460. satisfy the obligation and describing CAA section 112(c)(6) were set by the
how the EPA determined which EPA under two approaches: (1) Through
II. Background Information regulations would collectively satisfy standards that directly regulated CAA
CAA section 112(c)(6) requires the the 90 percent requirement under CAA section 112(c)(6) HAP; and (2) through
EPA to take action with respect to the section 112(c)(6) using the updated 1990 standards that set emission limits for
sources of seven specific persistent, baseline inventory of source categories another HAP or compound,3 which
bioaccumulative HAP. The section that emit CAA section 112(c)(6) HAP, serves as a surrogate for the CAA section
states, ‘‘With respect to alkylated lead which was presented in Table 1 of the 112(c)(6) HAP and other non-112(c)(6)
compounds, polycyclic organic matter, proposed determination. 79 FR at HAP emitted from the source category.
hexachlorobenzene, mercury, 74661–74671. The EPA noted in the proposed
polychlorinated biphenyls, 2,3,7,8- determination that, with respect to some
tetrachlorodibenzofurans and 2,3,7,8- III. How has the EPA satisfied its
of the CAA section 112(d)(2) standards
tetrachlorodibenzo-p-dioxin, the obligation under CAA section 112(c)(6)?
that utilized the surrogacy approach,
Administrator shall, not later than 5 A. What are the emissions standards specifically those promulgated prior to
years after November 15, 1990, list that the EPA has promulgated to meet the EPA’s development of the baseline
categories and subcategories of sources the 90 percent requirement under CAA emissions inventory for CAA section
assuring that sources accounting for not section 112(c)(6)? 112(c)(6) and issuance of the 1998
less than 90 per centum of the aggregate listing notice, the EPA did not
This action finalizes the EPA’s
emissions of each such pollutant are specifically indicate in those
proposed determination that the Agency
subject to standards under subsection rulemaking records that the standards
has promulgated emissions standards
(d)(2) or (d)(4) of this section.’’ would be counted towards satisfying the
CAA section 112(c)(6) requires the for source categories pursuant to CAA
sections 112(d)(2) and (4) sufficient to 90 percent requirement in CAA section
EPA to ensure that source categories 112(c)(6). For these standards, the 2014
responsible for at least 90 percent of the satisfy the CAA section 112(c)(6)
requirement that sources accounting for proposed determination explained how
aggregate emissions of each of the seven the surrogate standards control the CAA
specified pollutants are subject to not less than 90 percent of the aggregate
emissions of seven specific HAP are section 112(c)(6) HAP along with other
standards under CAA sections 112(d)(2) HAP from the source categories and
or 112(d)(4). It requires the EPA to list, subject to standards under CAA sections
112(d)(2) or 112(d)(4).2 Table 2 of the ensure that the sources of CAA section
by November 15, 1995, source categories 112(c)(6) HAP emissions are ‘‘subject to
asabaliauskas on DSK5VPTVN1PROD with RULES

assuring that sources responsible for 90 1 The EPA’s initial determination was signed on
percent of the aggregate emissions are February 21, 2011, and published in the Federal pursuant to section 112(d)(2). In addition, section
subject to emission standards pursuant Register on March 21, 2011. 129(h)(3)(A) states that ‘‘the performance standards
to CAA section 112(d)(2) or (d)(4), and 2 In addition to standards issued pursuant to under subsection (a) of this section and section
to promulgate such standards by section 112(d)(2) or (4), EPA also includes [111] of this title applicable to a category of solid
standards issued pursuant to section 129 as waste incineration units shall be deemed standards
November 15, 2000. Under CAA section satisfying the 112(c)(6) requirement because section under section [112](d)(2)of this title.’’
112(d)(2), the EPA imposes emission 129(a)(2) requires MACT standards that are 3 Some standards used non-HAP compounds (or

standards that require ‘‘the maximum virtually identical to the those standards required groups of compounds) as surrogates for HAP.

VerDate Sep<11>2014 16:13 Jun 02, 2015 Jkt 235001 PO 00000 Frm 00011 Fmt 4700 Sfmt 4700 E:\FR\FM\03JNR1.SGM 03JNR1

31472 Federal Register / Vol. 80, No. 106 / Wednesday, June 3, 2015 / Rules and Regulations

standards’’ for the purposes of CAA prior actions. All those standards were Table 1 of this preamble provides a
section 112(c)(6). The information subject to their own notice and list of the source categories listed under
presented in the proposed comment rulemaking processes CAA section 112(c)(6), the names of the
determination simply described the consistent with CAA sections 112 and national standards that apply to those
actions taken in these prior rulemakings 307(d), and, in several cases, to judicial source categories, the Federal Register
and explained how the surrogate review as provided by the strict statute citations and CFR part and subparts for
standards control the relevant CAA of limitations imposed by CAA section the rules, and the CAA section 112(c)(6)
section 112(c)(6) HAP. The proposed 307(b)(1). HAP regulated by those standards.
determination did not reopen these

TABLE 1—LIST OF SOURCE CATEGORIES, NATIONAL EMISSIONS STANDARDS, AND THE 112(C)(6) HAP SUBJECT TO
THESE STANDARDS, TO FULFILL THE CAA SECTION 112(C)(6) OBLIGATIONS
Section 112(c)(6) CFR part and Final rule Federal
source category National emissions standard name(s) 112(c)(6) Pollutant
subpart Register citation
name

Aerospace Industry National Emission Standards for Haz- 40 CFR part 63 sub- 60 FR 45948, Sep- Mercury, POM.
(Surface Coating). ardous Air Pollutants for the Aerospace part GG. tember 1, 1995.
Industries.
Alkylated Lead Pro- National Emission Standards for Organic 40 CFR part 63 sub- 59 FR 19402, April Alkylated Lead.
duction. Hazardous Air Pollutants from the Syn- part F. 22, 1994.
thetic Organic Chemical Manufacturing
Industry.
National Emission Standards for Organic 40 CFR part 63 sub- 59 FR 19402, April Alkylated Lead.
Hazardous Air Pollutants from the Syn- part G. 22, 1994.
thetic Organic Chemical Manufacturing
Industry for Process Vents, Storage
Vessels, Transfer Operations, and
Wastewater.
National Emission Standards for Organic 40 CFR part 63 sub- 59 FR 19402, April Alkylated Lead.
Hazardous Air Pollutants for Equipment part H. 22, 1994.
Leaks.
National Emission Standards for Organic 40 CFR part 63 sub- 59 FR 19402, April Alkylated Lead.
Hazardous Air Pollutants for Certain part I. 22, 1994.
Processes Subject to the Negotiated
Regulation for Equipment Leaks.
Asphalt Roofing Pro- National Emission Standards for Haz- 40 CFR part 63 sub- 68 FR 24562, May 7, POM.
duction. ardous Air Pollutants for Asphalt Proc- part LLLLL. 2003.
essing and Asphalt Roofing Manufac-
turing.
Blast Furnace and National Emission Standards for Haz- 40 CFR part 63 sub- 68 FR 27645, May POM.
Steel Mills. ardous Air Pollutants for Integrated Iron part FFFFF. 20, 2003.
and Steel Manufacturing Facilities.
Chemical Manufac- National Emission Standards for Organic 40 CFR part 63 sub- 59 FR 19402, April POM.
turing: Cyclic Hazardous Air Pollutants from the Syn- part F. 22, 1994.
Crude and Inter- thetic Organic Chemical Manufacturing
mediate Production. Industry.
National Emission Standards for Organic 40 CFR part 63 sub- 59 FR 19402, April POM.
Hazardous Air Pollutants from the Syn- part G. 22, 1994.
thetic Organic Chemical Manufacturing
Industry for Process Vents, Storage
Vessels, Transfer Operations, and
Wastewater.
National Emission Standards for Organic 40 CFR part 63 sub- 59 FR 19402, April POM.
Hazardous Air Pollutants for Equipment part H. 22, 1994.
Leaks.
National Emission Standards for Organic 40 CFR part 63 sub- 59 FR 19402, April POM.
Hazardous Air Pollutants for Certain part I. 22, 1994.
Processes Subject to the Negotiated
Regulation for Equipment Leaks.
Chlorinated Solvents National Emission Standards for Organic 40 CFR part 63 sub- 59 FR 19402, April HCB.
Production. Hazardous Air Pollutants from the Syn- part F. 22, 1994.
thetic Organic Chemical Manufacturing
Industry.
asabaliauskas on DSK5VPTVN1PROD with RULES

National Emission Standards for Organic 40 CFR part 63 sub- 59 FR 19402, April HCB.
Hazardous Air Pollutants from the Syn- part G. 22, 1994.
thetic Organic Chemical Manufacturing
Industry for Process Vents, Storage
Vessels, Transfer Operations, and
Wastewater.
National Emission Standards for Organic 40 CFR part 63 sub- 59 FR 19402, April HCB.
Hazardous Air Pollutants for Equipment part H. 22, 1994.
Leaks.

VerDate Sep<11>2014 16:13 Jun 02, 2015 Jkt 235001 PO 00000 Frm 00012 Fmt 4700 Sfmt 4700 E:\FR\FM\03JNR1.SGM 03JNR1

Federal Register / Vol. 80, No. 106 / Wednesday, June 3, 2015 / Rules and Regulations 31473

TABLE 1—LIST OF SOURCE CATEGORIES, NATIONAL EMISSIONS STANDARDS, AND THE 112(C)(6) HAP SUBJECT TO
THESE STANDARDS, TO FULFILL THE CAA SECTION 112(C)(6) OBLIGATIONS—Continued
Section 112(c)(6) CFR part and Final rule Federal
source category National emissions standard name(s) 112(c)(6) Pollutant
subpart Register citation
name

National Emission Standards for Organic 40 CFR part 63 sub- 59 FR 19402, April HCB.
Hazardous Air Pollutants for Certain part I. 22, 1994.
Processes Subject to the Negotiated
Regulation for Equipment Leaks.
Coke Ovens: By- National Emission Standard for Benzene 40 CFR part 61 sub- 54 FR 38073, Sep- POM.
Product Recovery Emissions from Coke By-Product Re- part L. tember 14, 1989.
Plants. covery Plants.
Coke Ovens: Charg- National Emission Standards for Haz- 40 CFR part 63 sub- 58 FR 57898, Octo- POM.
ing, Topside & ardous Air Pollutants for Coke Oven part L. ber 27, 1993.
Door Leaks. Batteries.
National Emission Standards for Haz- 40 CFR part 63 sub- 68 FR 18007, April POM.
ardous Air Pollutants for Coke Ovens: part CCCCC. 14, 2003.
Pushing, Quenching, and Battery Stacks.
Coke Ovens: Push- National Emission Standards for Haz- 40 CFR part 63 sub- 58 FR 57898, Octo- POM.
ing, Quenching & ardous Air Pollutants for Coke Oven part L. ber 27, 1993.
Battery Stacks. Batteries.
National Emission Standards for Haz- 40 CFR part 63 sub- 68 FR 18007, April POM.
ardous Air Pollutants for Coke Ovens: part CCCCC. 14, 2003.
Pushing, Quenching, and Battery Stacks.
Commercial Printing: National Emission Standards for Haz- 40 CFR part 63 sub- 61 FR 27132, May POM.
Gravure. ardous Air Pollutants: Printing and Pub- part KK. 30, 1996.
lishing Industry.
Electric Arc Furnaces National Emission Standards for Haz- 40 CFR part 63 sub- 72 FR 74088, De- Mercury.
(EAF)—Secondary ardous Air Pollutants for Area Sources: part YYYYY. cember 28, 2007.
Steel. Electric Arc Furnace Steelmaking Facili-
ties.
Fabricated Metal National Emission Standards for Haz- 40 CFR part 63 sub- 69 FR 129, January POM.
Products. ardous Air Pollutants: Surface Coating part MMMM. 2, 2004.
of Miscellaneous Metal Parts and Prod-
ucts.
Gasoline Distribution National Emission Standards for Haz- 40 CFR part 63 sub- 59 FR 64303, De- POM.
(Stage 1). ardous Air Pollutants for Gasoline Dis- part R. cember 14, 1994.
tribution Facilities (Bulk Gasoline Termi-
nals and Pipeline Breakout Stations).
Gold Mines ............... National Emission Standards for Haz- 40 CFR part 63 sub- 76 FR 9450, Feb- Mercury.
ardous Air Pollutants: Gold Mine Ore part EEEEEEE. ruary 17, 2011.
Processing and Production Area Source
Category.
Hazardous Waste In- National Emission Standards for Haz- 40 CFR part 63 sub- 64 FR 52827, Sep- POM, Mercury, PCB,
cineration. ardous Air Pollutants from Hazardous part EEE. tember 30, 1999; Dioxins, Furans.
Waste Combustors. 70 FR 59402, Oc-
tober 12, 2005.
Industrial Organic National Emission Standards for Organic 40 CFR part 63 sub- 59 FR 19402, April POM.
Chemicals Manu- Hazardous Air Pollutants from the Syn- part F. 22, 1994.
facturing. thetic Organic Chemical Manufacturing
Industry.
National Emission Standards for Organic 40 CFR part 63 sub- 59 FR 19402, April POM.
Hazardous Air Pollutants from the Syn- part G. 22, 1994.
thetic Organic Chemical Manufacturing
Industry for Process Vents, Storage
Vessels, Transfer Operations, and
Wastewater.
National Emission Standards for Organic 40 CFR part 63 sub- 59 FR 19402, April POM.
Hazardous Air Pollutants for Equipment part H. 22, 1994.
Leaks.
National Emission Standards for Organic 40 CFR part 63 sub- 59 FR 19402, April POM.
Hazardous Air Pollutants for Certain part I. 22, 1994.
Processes Subject to the Negotiated
asabaliauskas on DSK5VPTVN1PROD with RULES

Regulation for Equipment Leaks.
Industrial Stationary National Emission Standards for Haz- 40 CFR part 63 sub- 69 FR 33473, June POM.
IC Engines—Diesel. ardous Air Pollutants for Stationary Re- part ZZZZ. 15, 2004.
ciprocating Internal Combustion Engines.
Industrial Stationary National Emission Standards for Haz- 40 CFR part 63 sub- 69 FR 33473, June POM.
IC Engines—Nat- ardous Air Pollutants for Stationary Re- part ZZZZ. 15, 2004.
ural Gas. ciprocating Internal Combustion Engines.

VerDate Sep<11>2014 16:13 Jun 02, 2015 Jkt 235001 PO 00000 Frm 00013 Fmt 4700 Sfmt 4700 E:\FR\FM\03JNR1.SGM 03JNR1

31474 Federal Register / Vol. 80, No. 106 / Wednesday, June 3, 2015 / Rules and Regulations

TABLE 1—LIST OF SOURCE CATEGORIES, NATIONAL EMISSIONS STANDARDS, AND THE 112(C)(6) HAP SUBJECT TO
THESE STANDARDS, TO FULFILL THE CAA SECTION 112(C)(6) OBLIGATIONS—Continued
Section 112(c)(6) CFR part and Final rule Federal
source category National emissions standard name(s) 112(c)(6) Pollutant
subpart Register citation
name

Industrial/Commer- National Emission Standards for Haz- 40 CFR part 63 sub- 76 FR 15608, March POM, Mercury, Dioxins,
cial/Institutional ardous Air Pollutants for Industrial/Com- part DDDDD. 21, 2011. Furans.
Boilers. mercial/Institutional Boilers and Process
Heaters.
National Emission Standards for Haz- 40 CFR part 63 sub- 76 FR 15554, March POM, Mercury, Dioxins,
ardous Air Pollutants for Area Sources: part JJJJJJ. 21, 2011. Furans.
Industrial, Commercial, and Institutional
Boilers.
Lightweight Aggre- National Emission Standards for Haz- 40 CFR part 63 sub- 64 FR 52827, Sep- Mercury, Dioxins, Furans.
gate Kilns. ardous Air Pollutants from Hazardous part EEE. tember 30, 1999;
Waste Combustors. 70 FR 59402, Oc-
tober 12, 2005.
Medical Waste Incin- Standards of Performance and Emissions 40 CFR part 60 sub- 74 FR 51367, Octo- POM, Mercury, PCB,
eration. Guidelines for Hospitals/Medical/Infec- part Ce, Ec; & 40 ber 6, 2009. Dioxins, Furans.
tious Waste Incinerators. CFR part 62 sub-
part HHH.
Mercury Cell Chlor National Emission Standards for Haz- 40 CFR part 63 sub- 68 FR 70903, De- Mercury.
Alkali Production. ardous Air Pollutants: Mercury Emis- part IIIII. cember 19, 2003.
sions from Mercury Cell Chlor Alkali
Plants.
Municipal Waste Standards of Performance for New Sta- 40 CFR part 60 sub- 71 FR 27324, May POM, Mercury, PCB,
Combustion. tionary Sources and Emission Guide- part Cb, Ea, Eb; & 10, 2006. Dioxins, Furans.
lines for Existing Sources: Large Munic- 40 CFR part 62
ipal Waste Combustion Units. subpart FFF.
Standards of Performance for New Sta- 40 CFR part 60 sub- 65 FR 76349, De- POM, Mercury, PCB,
tionary Sources and Emission Guide- part AAAA, BBBB cember 6, 2000; Dioxins, Furans.
lines for Existing Stationary Sources: & 40 CFR part 62 65 FR 76337, De-
Small Municipal Waste Combustion subpart JJJ. cember 6, 2000.
Units.
Naphthalene Produc- National Emission Standards for Organic 40 CFR part 63 sub- 59 FR 19402, April POM.
tion. Hazardous Air Pollutants from the Syn- part F. 22, 1994.
thetic Organic Chemical Manufacturing
Industry.
National Emission Standards for Organic 40 CFR part 63 sub- 59 FR 19402, April POM.
Hazardous Air Pollutants from the Syn- part G. 22, 1994.
thetic Organic Chemical Manufacturing
Industry for Process Vents, Storage
Vessels, Transfer Operations, and
Wastewater.
National Emission Standards for Organic 40 CFR part 63 sub- 59 FR 19402, April POM.
Hazardous Air Pollutants for Equipment part H. 22, 1994.
Leaks.
National Emission Standards for Organic 40 CFR part 63 sub- 59 FR 19402, April POM.
Hazardous Air Pollutants for Certain part I. 22, 1994.
Processes Subject to the Negotiated
Regulation for Equipment Leaks.
Paints and Allied National Emission Standards for Haz- 40 CFR part 63 sub- 68 FR 63851, No- POM.
Products (Major). ardous Air Pollutants: Miscellaneous Or- part FFFF. vember 10, 2003.
ganic Chemical Manufacturing.
Paper Coated and National Emission Standards for Haz- 40 CFR part 63 sub- 67 FR 72329, De- POM.
Laminated, Pack- ardous Air Pollutants: Paper and Other part JJJJ. cember 4, 2002.
aging. Web Coating.
Pesticides Manufac- National Emission Standards for Haz- 40 CFR part 63 sub- 64 FR 33549, June HCB.
ture & Agricultural ardous Air Pollutants: Pesticide Active part MMM. 23, 1999.
Chemicals. Ingredient Production.
National Emission Standards for Organic 40 CFR part 63 sub- 59 FR 19402, April HCB.
Hazardous Air Pollutants from the Syn- part F. 22, 1994.
thetic Organic Chemical Manufacturing
Industry.
asabaliauskas on DSK5VPTVN1PROD with RULES

National Emission Standards for Organic 40 CFR part 63 sub- 59 FR 19402, April HCB.
Hazardous Air Pollutants from the Syn- part G. 22, 1994.
thetic Organic Chemical Manufacturing
Industry for Process Vents, Storage
Vessels, Transfer Operations, and
Wastewater.
National Emission Standards for Organic 40 CFR part 63 sub- 59 FR 19402, April HCB.
Hazardous Air Pollutants for Equipment part H. 22, 1994.
Leaks.

VerDate Sep<11>2014 16:13 Jun 02, 2015 Jkt 235001 PO 00000 Frm 00014 Fmt 4700 Sfmt 4700 E:\FR\FM\03JNR1.SGM 03JNR1

Federal Register / Vol. 80, No. 106 / Wednesday, June 3, 2015 / Rules and Regulations 31475

TABLE 1—LIST OF SOURCE CATEGORIES, NATIONAL EMISSIONS STANDARDS, AND THE 112(C)(6) HAP SUBJECT TO
THESE STANDARDS, TO FULFILL THE CAA SECTION 112(C)(6) OBLIGATIONS—Continued
Section 112(c)(6) CFR part and Final rule Federal
source category National emissions standard name(s) 112(c)(6) Pollutant
subpart Register citation
name

Petroleum Refining: National Emission Standards for Haz- 40 CFR part 63 sub- 60 FR 43244, August POM.
All Processes. ardous Air Pollutants from Petroleum part CC. 18, 1995.
Refineries.
National Emission Standards for Haz- 40 CFR part 63 sub- 67 FR 17761, April POM.
ardous Air Pollutants for Petroleum Re- part UUU. 11, 2002.
fineries: Catalytic Cracking Units, Cata-
lytic Reforming Units, and Sulfur Recov-
ery Units.
Phthalic Anhydride National Emission Standards for Organic 40 CFR part 63 sub- 59 FR 19402, April POM.
Production. Hazardous Air Pollutants from the Syn- part F. 22, 1994.
thetic Organic Chemical Manufacturing
Industry.
National Emission Standards for Organic 40 CFR part 63 sub- 59 FR 19402, April POM.
Hazardous Air Pollutants from the Syn- part G. 22, 1994.
thetic Organic Chemical Manufacturing
Industry for Process Vents, Storage
Vessels, Transfer Operations, and
Wastewater.
National Emission Standards for Organic 40 CFR part 63 sub- 59 FR 19402, April POM.
Hazardous Air Pollutants for Equipment part H. 22, 1994.
Leaks.
National Emission Standards for Organic 40 CFR part 63 sub- 59 FR 19402, April POM.
Hazardous Air Pollutants for Certain part I. 22, 1994.
Processes Subject to the Negotiated
Regulation for Equipment Leaks.
Plastics Material and National Emission Standards for Haz- 40 CFR part 63 sub- 61 FR 48208, Sep- POM.
Resins Manufac- ardous Air Pollutants for Group IV Poly- part JJJ. tember 12, 1996.
turing. mers and Resins.
Portland Cement National Emission Standards for Haz- 40 CFR part 63 sub- 64 FR 52827, Sep- POM, Mercury, Dioxins,
Manufacture: Haz- ardous Air Pollutants from Hazardous part EEE. tember 30, 1999; Furans.
ardous Waste Kilns. Waste Combustors. 70 FR 59402, Oc-
tober 12, 2005.
Portland Cement National Emission Standards for Haz- 40 CFR part 63 sub- 75 FR 54970, Sep- POM, Mercury, Dioxins,
Manufacture: Non- ardous Air Pollutants for the Portland part LLL. tember 9, 2010. Furans.
Hazardous Waste Cement Manufacturing Industry.
Kilns.
Primary Aluminum National Emission Standards for Haz- 40 CFR part 63 sub- 62 FR 52384, Octo- POM, Mercury, Dioxins,
Production. ardous Air Pollutants for Primary Alu- part LL. ber 7, 1997. Furans.
minum Reduction Plants.
Pulp and Paper— National Emission Standards for Haz- 40 CFR part 63 sub- 63 FR 18504, April POM, Mercury.
Kraft Recovery ardous Air Pollutants for Chemical Re- part MM. 15, 1998; 66 FR
Furnaces. covery Combustion Sources at Kraft, 3180, January 12,
Soda, Sulfite, and Stand-Alone 2001.
Semichemical Pulp Mills.
Pulp and Paper— National Emission Standards for Haz- 40 CFR part 63 sub- 63 FR 18504, April POM, Mercury.
Lime Kilns. ardous Air Pollutants for Chemical Re- part MM. 15, 1998; 66 FR
covery Combustion Sources at Kraft, 3180, January 12,
Soda, Sulfite, and Stand-Alone 2001.
Semichemical Pulp Mills.
Secondary Aluminum National Emission Standards for Haz- 40 CFR part 63 sub- 65 FR 15689, March Dioxins, Furans.
Smelting. ardous Air Pollutants for Secondary Alu- part RRR. 23, 2000.
minum Production.
Secondary Lead National Emission Standards for Haz- 40 CFR part 63 sub- 60 FR 32587, June POM, Dioxins, Furans.
Smelting. ardous Air Pollutants for Secondary part X. 23, 1995; 77 FR
Lead Smelting. 555, January 5,
2012.
Sewage Sludge In- Standards of Performance for New Sta- 40 CFR part 60 sub- 76 FR 15372, March Mercury.
cineration. tionary Sources and Emission Guide- parts LLLL, 21, 2011.
asabaliauskas on DSK5VPTVN1PROD with RULES

lines for Existing Sources: Sewage MMMM.
Sludge Incineration Units.
Ship Building and National Emission Standards for Haz- 40 CFR part 63 sub- 60 FR 64330, De- POM.
Repair (Surface ardous Air Pollutants for Shipbuilding part II. cember 15, 1995.
Coating). and Ship Repair (Surface Coating).
Transportation Equip- National Emission Standards for Haz- 40 CFR part 63 sub- 69 FR 20967, April POM.
ment Manufac- ardous Air Pollutants: Surface Coating part PPPP. 19, 2004; 69 FR
turing (SICs Com- of Plastic Parts and Products. 22601, April 26,
bined). 2004.

VerDate Sep<11>2014 16:13 Jun 02, 2015 Jkt 235001 PO 00000 Frm 00015 Fmt 4700 Sfmt 4700 E:\FR\FM\03JNR1.SGM 03JNR1

31476 Federal Register / Vol. 80, No. 106 / Wednesday, June 3, 2015 / Rules and Regulations

TABLE 1—LIST OF SOURCE CATEGORIES, NATIONAL EMISSIONS STANDARDS, AND THE 112(C)(6) HAP SUBJECT TO
THESE STANDARDS, TO FULFILL THE CAA SECTION 112(C)(6) OBLIGATIONS—Continued
Section 112(c)(6) CFR part and Final rule Federal
source category National emissions standard name(s) 112(c)(6) Pollutant
subpart Register citation
name

Wood Household National Emission Standards for Haz- 40 CFR part 63 sub- 60 FR 62930, De- POM.
Furniture Manufac- ardous Air Pollutants from Wood Fur- part JJ. cember 7, 1995.
turing. niture Manufacturing Operations.

IV. Summary of Significant Comments commenter states, ‘‘to satisfy section National Lime, 233 F.3d at 639; Sierra
and Responses 112(d)(2), the EPA must determine the Club, 353 F.3d at 984. The commenter
During the public comment period for maximum achievable degree of maintains that the United States Court
the proposed determination, we reduction for each hazardous air of Appeals for the District of Columbia
received comments from three pollutant that a source category emits.’’ Circuit has held repeatedly that what
organizations: the Council of Industrial The commenter states that the CAA also sources ‘‘achieve’’ with respect to a
Boiler Owners (CIBO), the Coalition for specifies a ‘‘floor’’ for the reduction that given HAP is not limited to what they
Clean Air Implementation (CCAI), and the EPA must require for each pollutant. achieve intentionally, but also includes
Sierra Club. The CIBO and CCAI Therefore, the commenter believes that lower emission levels achieved through
submitted comments supporting our the EPA’s claim that it can meet its the use of cleaner fuels or raw materials
proposed determination that we have obligations under section 112(c)(6) by regardless of whether such use reflects
fulfilled the CAA section 112(c)(6) setting a single limit on the aggregate any deliberate intent to reduce
obligations and agreed with our use of emissions of all HAP from an industrial emissions. Sierra Club v. EPA, 479 F.3d
surrogate pollutants. Sierra Club source category is contrary to the 875, 883 (D.C. Cir.2007) (citing National
submitted comments claiming that a language in CAA and violates the text of Lime, 233 F.3d at 640).
number of previously promulgated sections 112(c)(6) and 112(d), reflecting The commenter states that the EPA’s
standards identified in the proposed an unreasonable statutory use of ‘‘total HAP,’’ ‘‘total organic
determination are unlawful for purposes interpretation. HAP,’’ and other such aggregate
of CAA section 112(d)(2) such that those The commenter states that although measures as ‘‘surrogates’’ for pollutants
standards may not count toward the EPA may set surrogate standards for that fit into those categories is a
satisfying the 90 percent requirement in HAP where it is reasonable to do so, see definition maneuver and not a technical
CAA section 112(c)(6). A summary of National Lime, 233 F.3d at 637, setting determination. The commenter states
significant public comments received surrogate standards instead of direct that this approach to surrogacy is
during the comment period and the standards for HAP does not, according unlawful because it conflicts with EPA’s
EPA’s response to those comments are to the commenter, excuse the EPA from statutory obligation under sections
provided below in this section of this its clear statutory obligation to assure 112(c)(6) and 112(d), and also the
preamble. All the remaining public that each HAP emitted by a source commenter asserts with the EPA’s own
comments received during the comment category is reduced to the extent that interpretation of those provisions, see
period and the EPA’s responses to those sections 112(d)(2)–(3) requires. The Desert Citizens, 699 F.3d at 527–28,
comments are presented in the commenter maintains that the United which is that the EPA must set MACT
Summary of Public Comments and States Court of Appeals for the District standards for each of the section
EPA’s Responses for the Completion of of Columbia Circuit has made clear, a 112(c)(6) pollutants for which each
Requirements to Promulgate Standards surrogate is reasonable only if it allows source category was listed. The
Under CAA Section 112(c)(6) 2015 Final the EPA to identify ‘‘the best achieving commenter states there is nothing left of
Rule document, which is available in sources, and what they can achieve’’ this obligation if the EPA can simply
the docket for this action. with respect to the target HAP. Sierra define a category of pollutants (such as
Club v. EPA, 353 F.3d 976, 985 (D.C. total HAP) broad enough to include all
A. General/Legal Opposition to the the pollutants it must regulate and then
Cir. 2004).
EPA’s Surrogacy Determinations set an aggregate limit for the category.
As an example of a reasonable
Comment: One commenter states that surrogate, the commenter asserts that Additionally, the commenter states
‘‘for source categories listed under particulate matter (PM) is a reasonable that saying that POM is a constituent of
section [112](c)(6), the EPA must set a surrogate for metallic HAP only where total HAP, for example, is just a
MACT standard (i.e., a standard under the EPA demonstrates that (1) the different way of saying it is a HAP—
section [112](d)(2)–(3)) for each section metallic HAP are ‘‘invariably present’’ something that Congress already clearly
112(c)(6) pollutant for which the source in the surrogate pollutant such that indicated by listing POM as a HAP in
was listed.’’ 4 See Desert Citizens there is a strong correlation between the section 112(b). The commenter believes
Against Pollution v. EPA, 699 F.3d 524, two; (2) the control technology used for that such statements do nothing to
527–528 (D.C. Cir. 2012).5 Thus, the PM control ‘‘indiscriminately captures’’ demonstrate that emissions of total HAP
the metallic HAP along with the PM; identify the best performing sources
asabaliauskas on DSK5VPTVN1PROD with RULES

4 The commenter notes that section 112(c)(6) also
and (3) the means by which sources with respect to POM and what sources
allows the EPA to set standards for these pollutants can achieve with respect to POM. The
under section 112(d)(4) if a health threshold has achieve reductions in PM are the only
been established for that pollutant. CAA sections means by which they achieve commenter believes that if the EPA had
112(c)(6) and (d)(4). This provision is not at issue reductions’’ in metallic HAP emissions. authority to create surrogates by simply
because the EPA has not established health defining a group of pollutants to include
thresholds for any of the section 112(c)(6)
pollutants at issue here. section 112(d)(2) standards for the section 112(c)(6)
all the pollutants it must regulate, it
5 Accepting as ‘‘reasonable’’ the EPA’s pollutants when it regulates a category of area would abrogate the limits that decisions
interpretation of section 112 as requiring it to set sources listed pursuant to section 112(c)(6). of the United States Court of Appeals for

VerDate Sep<11>2014 16:13 Jun 02, 2015 Jkt 235001 PO 00000 Frm 00016 Fmt 4700 Sfmt 4700 E:\FR\FM\03JNR1.SGM 03JNR1

Federal Register / Vol. 80, No. 106 / Wednesday, June 3, 2015 / Rules and Regulations 31477

the District of Columbia Circuit have section 112(c)(6) determination, by rules. CAA section 112(c)(6) imposes no
formulated to ensure that the EPA’s use failing to consider relevant factors, and such obligation on the EPA. As
of surrogates is reasonable. The by failing to provide a rational explained below, the commenter aims to
commenter states that there would be connection between the facts found and collaterally attack prior EPA actions. All
nothing left, for example, of the the conclusion made. Motor Vehicle comments that raise such collateral
requirement that the HAP to be Mfrs. Ass’n of U.S., Inc. v. State Farm attacks are outside the scope of the
regulated be ‘‘invariably present’’ in the Mut. Auto. Ins. Co., 463 U.S. 29, 42–43. proposed CAA section 112(c)(6)
surrogate pollutant, National Lime, 233 The commenter gives examples of determination. All of the rules relied
F.3d at 639, if the EPA could simply specific surrogacy claims for specific upon by the EPA in this determination
define the surrogate ‘‘pollutant’’ as a source categories and processes that it were promulgated through notice and
group of pollutants that includes the believes are unlawful and arbitrary. We comment rulemaking consistent with
regulated pollutant. address the specific claims in the CAA section 307(d), and were final
The commenter argues that section Summary of Public Comments and agency actions subject to judicial
112(c)(6) is a provision that specifically EPA’s Responses for the Completion of review. CAA section 112(c)(6) does not
addresses seven persistent Requirements to Promulgate Standards provide commenters another
bioaccumulative toxics that Congress Under CAA Section 112(c)(6) 2015 Final opportunity to belatedly challenge these
recognized were particularly harmful. Rule document, which is available in prior EPA actions, nor does it mandate
The commenter believes that for sources the docket for this action. that the EPA re-promulgate or otherwise
the EPA lists as contributing to 90 Response: The commenter re-open for purposes of section 112(c)(6)
percent of the total emissions of one or misinterprets the CAA, mischaracterizes standards that were previously
more of these pollutants, the EPA must the EPA’s proposed determination, and promulgated under section 112(d)(2).
set a standard for that pollutant provides comments challenging the As an initial matter, it is important to
ensuring the maximum emissions substance of a number of previously understand the specific duties that CAA
reduction. The commenter states that issued EPA rules. As explained below, section 112(c)(6) imposes on the EPA,
Congress would not have singled out the comments challenging the especially since the commenter
these seven pollutants if it intended for legitimacy of the standards on which consistently paraphrases the statutory
the EPA only to set a single limit for the EPA relies to demonstrate it has language to assert there are duties
aggregate of emissions of all the satisfied its obligations under CAA beyond which the CAA requires by its
different HAP. section 112(c)(6) are far outside the terms. CAA section 112(c)(6) requires
The commenter states that even if it scope of the proposed CAA section the EPA, with respect to seven specified
were permissible in general for the EPA 112(c)(6) determination at issue. The HAP—alkylated lead compounds,
to evade its standard-setting obligations EPA, therefore, has no obligation to polycyclic organic matter,
by defining the surrogate ‘‘pollutant’’ as respond to those comments. hexachlorobenzene, mercury,
a group of pollutants, the EPA’s The proposed determination polychlorinated biphenyls, 2,3,7,8-
surrogacy claims in this rule are memorializes and provides notice that tetrachlorodibenzofurans and 2,3,7,8-
unlawful and arbitrary because they the EPA has fulfilled, via numerous tetrachlorodibenzo-p-dioxin—to ‘‘list
lack supporting data or analysis. The other previous regulatory actions, its categories and subcategories of sources
commenter argues that the EPA’s duties under section 112(c)(6) of the assuring that sources accounting for not
surrogacy explanations in the proposed CAA. The proposal lists CAA section less than 90 per centum of the aggregate
determination are standards under 112(d)(2) or 112(d)(4) standards emissions of each such pollutant are
section 307(d) because they are first- previously promulgated by the EPA and subject to standards under subsection
time claims that the relevant pollutants proposed the conclusion that the listed (d)(2) or (d)(4) of this section.’’ The
are subject to standards. The EPA must standards cover sources that, in the provision requires the listing to be done
according to the commenter comply aggregate, emit 90 percent or more of the by November 15, 1995, and requires that
with the requirements of section 307(d) pollutants specifically identified in sources accounting for not less than 90
governing CAA rulemakings for all of CAA section 112(c)(6). The commenter percent of aggregate emissions of each of
those previously issued standards. The does not challenge that conclusion. In the enumerated pollutants be subject to
commenter maintains the EPA has not fact, no commenter suggests that the CAA section 112(d)(2) or (4) standards
complied with these requirements source categories listed did not emit, in by November 15, 2000. CAA section
because according to the commenter the the aggregate prior to regulation, 90 112(c)(6) does not require the EPA to
EPA has not provided documentation, percent or more of the specified submit a report stating that the agency
data, or analysis in support of its pollutants or that the source categories has subjected those sources to such
proposed determination. For this are not subject to the CAA section standards, or establish a deadline for
reason, the commenter concludes that 112(d)(2) standards identified. Instead, any such report. Sierra Club v. EPA, 699
the EPA has violated section 307(d) by the commenter seeks to use the F.3d 530, 536 (D.C. Cir. 2012)
failing to explain the ‘‘methodology proposed determination to reopen (Henderson Concurring)(‘‘EPA is under
used in obtaining the data and in standards that were finalized by the no obligation, statutory or otherwise, to
analyzing the data’’ in the proposed EPA in some cases more than 20 years inform anyone that it has satisfied the
determination, by failing to provide ago. The commenter argues that the EPA requirements of section 112(c)(6).’’).
opportunity for informed public must now demonstrate, for each Moreover, while CAA section 112(c)(6)
participation and input, and by previously promulgated rule, that each gives the EPA authority to list source
asabaliauskas on DSK5VPTVN1PROD with RULES

unlawfully basing the Agency’s standard reduces HAP ‘‘to the extent categories, the rules which establish
conclusions on information or data that [112] (d)(2)–(3) requires,’’ that in standards for those source categories are
which has not been made available to each rulemaking the EPA properly promulgated pursuant to separate CAA
the public through the docket. The identified ‘‘the best performing provisions.
commenter also believes that the EPA sources,’’ and that the EPA must The CAA section 112(d)(2) standards
has acted arbitrarily and capriciously by provide documentation, data and (also referred to as maximum achievable
failing to provide substantial record analysis to support the validity of the control technology or MACT standards),
evidence in support of its proposed standards in the previously promulgated which commenter seeks to collaterally

VerDate Sep<11>2014 16:13 Jun 02, 2015 Jkt 235001 PO 00000 Frm 00017 Fmt 4700 Sfmt 4700 E:\FR\FM\03JNR1.SGM 03JNR1

31478 Federal Register / Vol. 80, No. 106 / Wednesday, June 3, 2015 / Rules and Regulations

attack, regulate HAP emitted from major the major sources (i.e. pursuant to CAA their adequacy for controlling any
sources and in some instances area section 112(d)(2)).7 emitted HAP (including section
sources and were promulgated in For all the rules that the commenter 112(c)(6) HAP) under section 112(d)(2),
accordance with the following CAA seeks to collaterally attack, the public or for any other purpose. Therefore, this
provisions. CAA section 112(c)(1) was on notice during each specific final determination itself cannot provide
requires the EPA to list all major sources rulemaking that the EPA was setting a new opportunity to challenge those
and authorizes the EPA to list area MACT standards for the HAP, including previously promulgated rules under
sources, and section 112(d)(1) requires the CAA section 112(c)(6) HAP, emitted either section 112(d)(2) or section
the EPA to regulate all HAP from major by the source category. Parties, 112(c)(6).
sources pursuant to CAA section including the commenter, could have In addition to raising belated
112(d)(2) or (d)(4). CAA section challenged the adequacy of those comments, the commenter argues that
112(e)(1)(A)-(E) imposes sequential standards at the time they were issued CAA section 112(c)(6) requires the EPA
milestones for the EPA to complete if they believed the standards did not to set a ‘‘specific limit’’ for each of the
issuance of MACT standards, and sufficiently reduce the HAP emitted by CAA section 112(c)(6) HAP. It is not
requires that the final set of such the source category, in whatever manner clear what the commenter means by a
standards be promulgated by November those standards took with respect to ‘‘specific limit.’’ The commenter may be
15, 2000, the same date by which under regulating each HAP individually or arguing that the EPA cannot rely on
CAA section 112(c)(6) sources collectively through a surrogate. See CAA section 112(d)(2) or (d)(4)
accounting for 90 percent of the National Lime Association v. EPA, 33 standards that use surrogates to
enumerated HAP were required to have F.3d 625, 633–34 (D.C. Cir. 2000) demonstrate that it has satisfied its
become subject to CAA section 112(d)(2) (finding that CAA section 112(d)(1) obligation under CAA section 112(c)(6).
or (4) standards. Therefore, for major requires the EPA to establish standards However, it appears that the commenter
sources, CAA section 112(c)(6) is for all HAP emitted from major sources). is arguing that CAA section 112(c)(6)
redundant with respect to the HAP to be Any challenges to the legitimacy of the somehow limits the EPA’s discretion to
regulated, the type of standards standards, including challenges use particular types of surrogates when
required, and the ultimate timing for suggesting that certain HAP were not setting MACT standards. The
completion of issuing such standards. adequately regulated, should have been commenter specifically objects to the
The HAP specifically listed in CAA raised during the rulemaking for the EPA’s standard for total HAP or total
section 112(c)(6) are also on the CAA standards. If any issue remained when hazardous organic pollutants. There is
section 112(b)(1) list of HAP and, thus, the standards were finalized, the proper no statutory support for either
the CAA section 112(d)(1) obligation to recourse would have been to petition for argument. Indeed, as other sections of
set CAA section 112(d)(2) or (d)(4) judicial review pursuant to CAA section the CAA illustrate, Congress knew how
standards for all HAP from major 307(b). That provision provides that ‘‘[a] to require pollutant-specific standards.
sources applies equally to the CAA petition for review of action of the [EPA] For example, CAA section 129(a)(4)
section 112(c)(6) HAP. CAA section Administrator in promulgating . . . any explicitly requires the EPA to set
112(c)(6) adds nothing substantive to emission standard or requirement under numeric standards ‘‘for the
this requirement. Even the CAA section section 112 of this title . . . shall be [enumerated] substances or mixtures’’
112(e)(1) deadlines for promulgating filed within sixty days from the date listed in that subsection. That provision
such standards is ultimately identical to notice of such promulgation. . . . expressly requires the EPA to set
appears in the Federal Register. . . .’’ numerical emissions limitations ‘‘for’’ a
the deadline in CAA section 112(c)(6).6
CAA section 307(b)(1). Once the 60-day list of nine substances emitted by solid
As such, it is irrelevant whether the
period has lapsed, a party may not raise waste incineration units, and expressly
EPA mentioned CAA section 112(c)(6)
arguments that ‘‘were available to them authorizes the regulation of other
during the rulemaking for any standard
at the time the rule was adopted.’’ Nat’l pollutants through, among other things,
for a major source category, including
Mining Ass’n v. DOI, 70 F.3d 1345, 1350 surrogate standards. Unlike CAA section
standards where the Agency regulated
(D.C. Cir. 1995). 129(a)(4), the terms of CAA section
the area sources in the category at the For the reasons stated above, because 112(c)(6) do not direct the EPA to set
same time and in the same manner as the commenter challenges the such standards ‘‘for’’ the CAA section
6 The primary impacts of CAA section 112(c)(6)
sufficiency of the underlying standards 112(c)(6) HAP. Congress conspicuously
are to require the EPA to list area sources if major as they apply to certain CAA section did not take this approach in CAA
sources do not account for at least 90 percent of 112(c)(6) HAP, the commenter should section 112(c)(6), and, thus, left intact
each of the seven HAP, and to limit the EPA’s have raised these issues in timely, direct the EPA’s discretion to establish
discretion to set so-called generally available challenges to those rules. CAA section surrogate standards.
control technology or GACT standards for area CAA section 112(c)(6) requires the
sources. Most relevant here is the limitation on the 112(c)(6) does not allow for challenges
EPA’s authority to establish GACT standards. CAA to the legitimacy of CAA section 112(d) Agency to assure that ‘‘sources
section 112(d)(5) provides that, for listed area standards adopted in prior rulemakings accounting for’’ at least 90 percent of the
sources, the EPA may set emission standards that outside the 60-day window for emissions of the listed HAP are ‘‘subject
‘‘provide for the use of generally available control to standards’’ under CAA sections
technologies or management practices by such challenging those standards established
sources to reduce emissions of hazardous air in CAA section 307(b)(1). Moreover, in 112(d)(2) or (d)(4), without specifying
pollutants.’’ CAA section 112(c)(6) removes the the proposed determination, EPA did the form of those standards, or how
EPA’s discretion to establish GACT standards for not re-opened those previously those standards must operate or be
asabaliauskas on DSK5VPTVN1PROD with RULES

the seven section 112(c)(6) HAP emitted if an area applied to those sources. The provision
source category must be regulated pursuant to CAA promulgated standards, either to review
section 112(d)(2) or (4) to ensure that sources
does not expressly state that the EPA
accounting for not less than 90 percent of the seven 7 Several of the rulemakings that the commenter can meet CAA section 112(c)(6) only by
HAP are subject to CAA section 112 (d)(2) or (d)(4) collaterally attacks regulated major and area sources setting specific standards ‘‘for’’ the
standards. As shown in this notice, none of the together and the Agency established the same listed HAP, unlike CAA section
standards applicable to area sources that the EPA section CAA section 112(d)(2) standard for both the
listed and relied on to demonstrate that it has met major and the area sources in the categories. The
129(a)(4). As the commenter notes, the
its obligations under CAA section 112(c)(6) were commenter makes no distinction between major United States Court of Appeals for the
established pursuant to CAA section 112(d)(5). and area sources in its comments. District of Columbia Circuit upheld the

VerDate Sep<11>2014 16:13 Jun 02, 2015 Jkt 235001 PO 00000 Frm 00018 Fmt 4700 Sfmt 4700 E:\FR\FM\03JNR1.SGM 03JNR1

Federal Register / Vol. 80, No. 106 / Wednesday, June 3, 2015 / Rules and Regulations 31479

EPA’s approach of satisfying its general aspects of those rules to satisfy the standards issued prior to the 1998
obligation under CAA section 112 to set general rulemaking requirements of notice. While the EPA might not have
standards through surrogates, as long as CAA section 307(d) and the identified at the time some of these
the choice of the surrogate is itself requirements of CAA section 112. There standards were issued that the EPA
reasonable. National Lime Ass’n v. EPA, is no statutory basis for this argument, would count the standards towards
233 F.3d 625, 634, 637 (D.C. Cir. 2000); which is an attempt to use this non- meeting the 90 percent requirement in
see also, e.g., Sierra Club v. EPA, 353 statutorily required determination that CAA section 112(c)(6), such intent was
F.3d 976, 982–85 (D.C. Cir. 2004). In the EPA has satisfied its CAA section made public in the 1998 notice. Further,
fact, in the National Lime decision, 112(c)(6) obligation to reopen numerous as discussed above, the public was on
instead of mandating that the EPA set a rules, many of which were finalized notice at the time the EPA established
specific standard for each metallic HAP, over a decade ago, as a means to force these MACT standards that the
the Court held that the EPA’s standards a non-required re-opening of such standards would regulate the HAP,
for PM as a surrogate for regulating the standards. Moreover, the commenter’s including the CAA section 112(c)(6)
aggregate metallic HAP was reasonable. assertion that the proposed CAA section HAP, emitted from the source
233 F.3d at 639. 112(c)(6) determination was the first categories. If the commenter believed
Moreover, CAA section 112(c)(6) time the EPA provided notice of its that the prior actions did not
contains a numeric benchmark only as claim that the surrogate standards were sufficiently control the HAP, including
to source categories responsible for the being credited for controlling the CAA the CAA section 112(c)(6) HAP, from
percentage of aggregate baseline section 112(c)(6) HAP is inaccurate, those source categories, the commenter
emissions that must be controlled, not assuming it is even relevant (nothing in had a responsibility to make those
the amount of emissions of each section 112(c)(6), after all, requires EPA assertions at the time the Agency
enumerated HAP that must be reduced. to ‘‘provide notice,’’ either sequentially established the CAA section 112(d)
As this Court explained in National or ultimately, that the Agency has standards. This applied equally to the
Lime, where ‘‘EPA is under no finally discharged its duty to set section comments questioning the surrogate
obligation to achieve a particular 112(d)(2) standards for the subject standards. The commenter should have
numerical reduction in HAP . . . source categories accounting for 90 raised its concerns with the surrogate
emissions,’’ but rather only to apply percent of the aggregate section standards for ‘‘total HAP’’ or ‘‘total
MACT based on the HAP reductions 112(c)(6) HAP. In any event, contrary to organic HAP’’ at the time the standards
‘‘achieved’’ by certain facilities, ‘‘then the commenter’s assertion, the EPA were issued if it believed such
the EPA may require . . . control [of a provided such notice of its expectations surrogates are not reasonable or in
surrogate] without quantifying the to discharge its section 112(c)(6) compliance with the CAA. In any event,
reduction in [the target] HAP . . . thus responsibilities when the Agency the commenter’s claim that the
achieved.’’ 233 F.3d at 639. The same published the 1998 listing notice proposed determination was the first
rationale applies here, where the EPA’s identifying the source categories that, time notice is refuted by the
only obligation under CAA section based on the 1990 emissions inventory, administrative petitions the commenter
112(c)(6) is to apply the same MACT are responsible for 90 percent of the filed in 1999, subsequent to the 1998
standard considered in National Lime to aggregate emissions of each of the seven notice, requesting the EPA to revise
particular sources accounting for 90 pollutants identified in section 112(c)(6) some of the standards included in the
percent of emissions of the CAA section from stationary, anthropogenic sources 1998 notice and addressed in the
112(c)(6) HAP. The EPA has set (i.e., sources within the scope of CAA comments on the proposed CAA section
standards pursuant to CAA sections sections 112 and/or 129).8 63 FR 17838 112(c)(6) determination at issue. In a
112(d)(2) or (d)(4) regulating emissions (April 10, 1998) (‘‘1998 listing notice’’). letter dated January 19, 2001, the EPA
of substances identified as surrogates for Included on the list were the MACT denied the petitions, explaining how
the CAA section 112(c)(6) HAP, and standards for the source categories at each of these standards meet the CAA
those standards reduce the CAA section issue in this comment, and most of the section 112(c)(6) requirement in
112(c)(6) HAP; thus, the EPA has fully specific standards in the comments addressing the HAP enumerated in that
met its obligation to set standards were promulgated prior to the 1998 section.9
assuring that source categories listing. The commenter’s argument that Section 112(c)(6) does not require that
accounting for not less than 90 percent the proposed determination constitutes the EPA take an additional, separate
of the aggregate emissions of the CAA the first time notice was given is final regulatory action to re-open any
section 112(c)(6) pollutants at issue are without merit for any source category previously promulgated standards, and
subject to section 112(d)(2) or (4) listed in the 1998 notice, particularly for the EPA in fact did not reopen these
standards. those source categories that were prior actions in the proposed CAA
The commenter also contends that the section 112(c)(6) determination.
regulated after that listing was
present determination constitutes a Therefore, the proposed notice does not
published in the Federal Register. The
separate CAA 307(d) rulemaking with support a belated, backdoor attack on
argument is also without merit for the
regard to many of the previously and rules that were in some cases issued
elsewhere promulgated surrogate 8 The EPA has updated the 1998 listing several
more than 20 years ago. The proposed
standards that the EPA credits towards times to remove source categories no longer needed CAA section 112(c)(6) determination is
satisfying the requirement in CAA to meet the CAA section 112(c)(6) requirement a simple, discretionary accounting of
section 112(c)(6) that source categories based on updated information, and to add source the EPA’s previous regulatory efforts,
asabaliauskas on DSK5VPTVN1PROD with RULES

accounting for 90 percent of the categories subsequently determined to be necessary explaining in mathematical terms that
to reach the 90 percent threshold. See, e.g., 76 FR
aggregate enumerated HAP be subjected 9450 (February 17, 2011) (adding Gold Mine source the EPA has previously listed sources
to CAA section 112(d)(2) or (4) category); 73 FR 1916 (January 10, 2008) (finalizing
standards. The commenter argues that decision not to regulate gasoline distribution area 9 Letter from Browner to Pew, Response to Sierra

the EPA must demonstrate anew the sources under CAA section 112(c)(6)); 72 FR 53814 Club Petition to Revise Regulations for the SOCMI
(September 20, 2007) (adding Electric Arc Furnace Category, Coke Oven Batteries, Petroleum
validity of the prior separate rulemaking Steelmaking Facility area source category); 67 FR Refineries, Medical Waste Incinerators, and
actions and provide data and 68124 (November 8, 2002) (removing several source Municipal Waste Combustors (dated January 25,
documentation to support specific categories). 1999)(January 19, 2001).

VerDate Sep<11>2014 16:13 Jun 02, 2015 Jkt 235001 PO 00000 Frm 00019 Fmt 4700 Sfmt 4700 E:\FR\FM\03JNR1.SGM 03JNR1

31480 Federal Register / Vol. 80, No. 106 / Wednesday, June 3, 2015 / Rules and Regulations

and promulgated HAP standards standards listed in that 1998 notice did the Gold Mine area source rule
sufficient to satisfy the requirement that not adequately address the CAA section referenced in the comment addresses
sources needed for meeting the 90 112(c)(6) HAP, it should have filed an the issue of surrogacy. This is not
percent requirement for each of the CAA administrative petition making the surprising considering that rule directly
section 112(c)(6) HAP have, in fact, argument that the 1998 notice regulates mercury, the only CAA section
become subject to standards under CAA constituted new information concerning 112(c)(6) HAP emitted from the Gold
sections 112(d)(2) or (4). While the the substance of those previously issued Mine area sources. The relevant issue in
proposed determination in some standards and asked the EPA to amend that case was whether the EPA must
instances clarifies the surrogacy the original rules that established the also set CAA section 112(d)(2) standards
relationship between the established MACT standards. In fact, as stated for all of the non-CAA section 112(c)(6)
standards and the relevant CAA section above, the commenter filed an HAP emitted by the Gold Mine area
112(c)(6) HAP, the proposal does not administrative petition on several of the sources. The Court upheld the EPA’s
discuss or attest to the substance of the rules addressed in its comments and did interpretation that CAA section
standards previously promulgated for not challenge the EPA’s denial of that 112(c)(6) does not impose such
each listed category and subcategory 2001 petition. Assuming arguendo that requirement on non-CAA section
because those standards have been the 1998 notice provided an opportunity 112(c)(6) HAP emitted from area sources
subject to their own notice and to challenge the previously issued just because they emit one or more CAA
comment rulemaking processes, and, in MACT standards, any such challenge is section 112(c)(6) HAP (in this case, just
several cases, to judicial review as now time barred because the commenter mercury). The commenter also suggests
provided by the strict statute of should have brought the challenge to that its claim is supported by the EPA’s
limitations imposed by CAA section those rules within 6 years of the 1998 own interpretation, but does not cite or
307(b)(1). The proposed determination notice, wherein the EPA included those reference any specific EPA statement. In
only provides the mathematical and source categories in the CAA section any event, interpretations and
technical basis for the EPA’s calculation 112(c)(6) inventory. See 28 U.S.C. statements the EPA made in support of
that the sources in the categories and 2401(a) (requiring civil actions against the Gold Mine area source rule were
subcategories for which it has separately the United States to be brought within specific to those area sources and
promulgated emission standards 6 years after the right of action first should not be taken out of context.
account for 90 percent of the baseline accrues). For source categories included To the extent the commenter is
emissions of the CAA section 112(c)(6) in but regulated after the 1998 listing, claiming that a surrogate cannot be a
HAP. the commenter was on notice and group of HAP (e.g., total organic HAP or
The United States Court of Appeals should have commented directly on total HAP), the commenter’s
for the District of Columbia Circuit surrogacy and other issues at the time interpretation of CAA section 112(c)(6)
specified in Oljato Chapter of Navajo the standards were promulgated, even if contradicts the United States Court of
Tribe v. Train, 515 F.2d 654, 666 (D.C. the EPA did not reiterate in the Appeals for the District of Columbia
Cir. 1975), a procedure for pursuing rulemaking record that the EPA was Circuit’s decision in National Lime, 233
claims that new information merits counting those sources’ standards F.3d at 639. In that decision, the Court
revision of a previous agency regulation: toward the 90 percent requirement. held that PM, which is itself comprised
The prospective petitioner must first of a group of pollutants, is a reasonable
bring the new information to the The commenter’s main concern surrogate for metallic HAP, see National
Agency’s attention in an administrative appears to be the EPA’s use of ‘‘total Lime, 233 F.3d at 639. Neither PM nor
petition seeking revision of the prior HAP’’ or ‘‘total organic HAP’’ as metallic HAP is a single HAP; each has
regulation. CAA Section 553(d) of the surrogates for certain CAA section various pollutants as constituents. As
Administrative Procedure Act (APA) 112(c)(6) HAP. The commenter claims the Court holds, the EPA may set
also explicitly allows parties to petition such approach is unlawful under the surrogate standards for HAP where it is
the Agency to amend a rule. A party that plain language of CAA section 112(c)(6) reasonable to do so, see National Lime,
identifies new information that it because according to the commenter 233 F.3d at 637. Therefore, a surrogate
believes undermines the legitimacy of that provision requires the EPA to set a can be one or multiple pollutants as
an existing standard may, at any time, MACT standard ‘‘for’’ ‘‘each section long as it is reasonable, and the
petition the Agency to review and revise 112(c)(6) HAP.’’ In support, the reasonableness of the use of a surrogate
that standard. Any party that believed commenter cites a United States Court can be properly challenged only at the
an existing MACT standard was of Appeals for the District of Columbia time the standards are promulgated.
deficient because it failed to adequately Circuit opinion in a case reviewing the For the reasons stated above, the EPA
address one or more HAP emitted by the NESHAP for the Gold Mine Ore is not required in this action to re-
source category could have submitted a Processing and Production area source evaluate previously promulgated MACT
petition asking the EPA to consider the category (‘‘the Gold Mine area source standards and respond to the belated
new information and amend the existing rule’’). See Desert Citizens Against comments on the substance of these
rule to cure any alleged deficiency. Pollution v. EPA, 699 F.3d 524 (D.C. Cir. standards, as the commenter claims.
In addition, as discussed above, the 2012). As explained above, the Congress deliberately promoted the
1998 listing notice provided sufficient commenter’s interpretation of CAA value of finality of the EPA’s standards
notice that the EPA intended to rely on section 112(c)(6) to require a specific in requiring parties to challenge rules
previously issued MACT standards to MACT standard for ‘‘each section within 60 days of promulgation under
asabaliauskas on DSK5VPTVN1PROD with RULES

satisfy the CAA section 112(c)(6) 112(c)(6) HAP’’ is unsupported by the CAA section 307(b)(1), and in
requirement, to the extent that the plain text of the statute. Unlike CAA precluding opportunities to randomly
public did not recognize that it was section 129(a)(4), the terms of CAA challenge standards in post-
already on notice regarding the MACT section 112(c)(6) do not direct the EPA promulgation fora such as civil or
standards’ applicability to all HAP to set such standards ‘‘for’’ the section criminal enforcement proceedings. See
emitted by the source categories at the 112(c)(6) HAP. Further, nothing in the CAA section 307(b)(2). Moreover,
time those standards were issued. If the United States Court of Appeals for the nothing in CAA section 112(c)(6) serves
commenter believed one or more of the District of Columbia Circuit opinion or as an exception to this emphasis on

VerDate Sep<11>2014 16:13 Jun 02, 2015 Jkt 235001 PO 00000 Frm 00020 Fmt 4700 Sfmt 4700 E:\FR\FM\03JNR1.SGM 03JNR1

Federal Register / Vol. 80, No. 106 / Wednesday, June 3, 2015 / Rules and Regulations 31481

finality and regulatory repose, given that responsibilities among the various Dated: May 22, 2015.
CAA section 112(c)(6) itself does not levels of government. Gina McCarthy,
require the EPA to issue any final notice Administrator.
or take any other final action that F. Executive Order 13175: Consultation
[FR Doc. 2015–13500 Filed 6–2–15; 8:45 am]
functions to re-open previously and Coordination With Indian Tribal
BILLING CODE 6560–50–P
promulgated standards that are credited Governments
to meeting the 90 percent requirement. This action does not have tribal
If, in fact, additional control of HAP, implications, as specified in Executive ENVIRONMENTAL PROTECTION
including CAA section 112(c)(6) HAP, is Order 13175. This action does not AGENCY
appropriate because of remaining risk or materially alter the stringency of any
newly available control technologies or standards discussed in this document. 40 CFR Part 180
practices, the CAA addresses that Thus, Executive Order 13175 does not
possibility by requiring review of CAA [EPA–HQ–OPP–2014–0678; FRL–9927–19]
apply to this action.
section 112(d)(2) standards pursuant to Alkyl (C8–20) Polyglucoside Esters;
CAA sections 112(d)(6) and (f)(2). Thus, G. Executive Order 13045: Protection of
Exemption From the Requirement of a
the commenter has had and will have Children From Environmental Health
Tolerance
additional opportunities to address Risks and Safety Risks
whether additional control of the AGENCY: Environmental Protection
section 112(c)(6) HAP is warranted. This action is not subject to Executive Agency (EPA).
Order 13045 because the EPA does not ACTION: Final rule.
V. Statutory and Executive Order believe the environmental health risks
Reviews or safety risks addressed by this action SUMMARY: This regulation establishes an
Additional information about these present a disproportionate risk to exemption from the requirement of a
statutes and Executive Orders can be children. A health and risk assessment tolerance for residues of D-
found at http://www2.epa.gov/laws- was not performed for this action glucopyranose, oligomeric, 6-
regulations/laws-and-executive-orders. because it does not alter any of the (dihydrogen citrates), C8–20 branched
regulations discussed in this action. and linear alkyl glycosides, sodium
A. Executive Order 12866: Regulatory salts; D-glucopyranose, oligomeric, 6-
Planning and Review and Executive H. Executive Order 13211: Actions (hydrogen sulfosuccinates), C8–20
Order 13563: Improving Regulation and Concerning Regulations That branched and linear alkyl glycosides,
Regulatory Review Significantly Affect Energy Supply, sodium salts; and D-glucopyranose,
This action is not a significant Distribution, or Use oligomeric, lactates, C8–20 branched and
regulatory action and was, therefore, not This action is not subject to Executive linear alkyl glycosides when used as an
submitted to the Office of Management Order 13211, because it is not a inert ingredients (surfactants) in
and Budget (OMB) for review. significant regulatory action under pesticide formulations applied to
Executive Order 12866. growing crops and raw agricultural
B. Paperwork Reduction Act (PRA)
commodities after harvest. Lamberti
This action does not impose an I. National Technology Transfer and USA, Inc. submitted a petition to EPA
information collection burden under the Advancement Act under the Federal Food, Drug, and
PRA because it does not contain any Cosmetic Act (FFDCA), requesting
information collection activities. This rulemaking does not involve establishment of an exemption from the
technical standards. requirement of a tolerance. This
C. Regulatory Flexibility Act (RFA)
J. Executive Order 12898: Federal regulation eliminates the need to
I certify that this action will not have establish a maximum permissible level
a significant economic impact on a Actions To Address Environmental
Justice in Minority Populations and for residues of D-glucopyranose,
substantial number of small entities oligomeric, 6-(dihydrogen citrates), C8–20
under the RFA. This action will not Low-Income Populations
branched and linear alkyl glycosides,
impose any requirements on small The EPA believes the human health or sodium salts: D-glucopyranose,
entities. This action does not alter any environmental risk addressed by this oligomeric, 6-(hydrogen
of the standards discussed in this action will not have potential sulfosuccinates), C8–20 branched and
document. disproportionately high and adverse linear alkyl glycosides, sodium salts;
D. Unfunded Mandates Reform Act human health or environmental effects and D-glucopyranose, oligomeric,
(UMRA) on minority, low income or indigenous lactates, C8–20 branched and linear alkyl
populations because it does not affect glycosides.
This action does not contain any
the level of protection provided to DATES: This regulation is effective June
unfunded mandate as described in
human health or the environment. An 3, 2015. Objections and requests for
UMRA, 2 U.S.C. 1531–1538 and does
environmental justice evaluation was hearings must be received on or before
not significantly or uniquely affect small
not performed for this action because it August 3, 2015, and must be filed in
governments. The action imposes no
does not alter any of the regulations accordance with the instructions
enforceable duty on any state, local or
discussed in this action. provided in 40 CFR part 178 (see also
tribal governments or the private sector.
asabaliauskas on DSK5VPTVN1PROD with RULES

Unit I.C. of the SUPPLEMENTARY
E. Executive Order 13132: Federalism K. Congressional Review Act (CRA) INFORMATION).
This action does not have federalism This action is subject to the CRA, and ADDRESSES: The docket for this action,
implications. It will not have substantial the EPA will submit a rule report to identified by docket identification (ID)
direct effects on the states, on the each House of the Congress and to the number EPA–HQ–OPP–2014–0678, is
relationship between the national Comptroller General of the United available at http://www.regulations.gov
government and the states or on the States. This action is not a ‘‘major rule’’ or at the Office of Pesticide Programs
distribution of power and as defined by 5 U.S.C. 804(2). Regulatory Public Docket (OPP Docket)

VerDate Sep<11>2014 16:13 Jun 02, 2015 Jkt 235001 PO 00000 Frm 00021 Fmt 4700 Sfmt 4700 E:\FR\FM\03JNR1.SGM 03JNR1

Document Created: 2015-12-15 15:09:13
Document Modified: 2015-12-15 15:09:13

Category		Regulatory Information
Collection		Federal Register
sudoc Class		AE 2.7: GS 4.107: AE 2.106:
Publisher		Office of the Federal Register, National Archives and Records Administration
Section		Rules and Regulations
Action		Final rule.
Dates		This action is effective on June 3, 2015.
Contact		For questions about this action, contact Mr. Nathan Topham, Office of Air Quality Planning and Standards; Sector Policies and Programs Division, Metals and Inorganic Chemicals Group (D243-02); Environmental Protection Agency; Research Triangle Park, NC 27111; telephone number: (919) 541-0483; fax number:
FR Citation		80 FR 31470
RIN Number		2060-AS42