[Federal Register Volume 70, Number 72 (Friday, April 15, 2005)]
[Rules and Regulations]
[Pages 19992-20015]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-6942]
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Part II
Environmental Protection Agency
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40 CFR Part 63
National Emission Standards for Coke Oven Batteries; Final Rule
Federal Register / Vol. 70, No. 72 / Friday, April 15, 2005 / Rules
and Regulations
[[Page 19992]]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 63
[OAR-2003-0051; FRL-7895-8]
RIN 2060-AJ96
National Emission Standards for Coke Oven Batteries
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule; amendments.
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SUMMARY: On October 27, 1993 (58 FR 57898), pursuant to section 112 of
the Clean Air Act (CAA), the EPA issued technology-based national
emission standards to control hazardous air pollutants (HAP) emitted by
coke oven batteries. This action amends the standards to address
residual risks under section 112(f) and the 8-year review requirements
of section 112(d)(6).
DATES: The final rule amendments will be effective on April 15, 2005.
Existing sources will be required to comply with the final rule as
amended on July 14, 2005. The incorporation by reference of certain
publications listed in the final rule amendments is approved by the
Director of the Federal Register as of April 15, 2005.
ADDRESSES: The EPA has established a docket for this action under
Docket ID No. OAR-2003-0051. All documents in the docket are listed in
the EDOCKET index at http://www.epa.gov/edocket. Although listed in the
index, some information is not publicly available, i.e., confidential
business information or other information whose disclosure is
restricted by statute. Certain other information, such as copyrighted
materials, is not placed on the Internet and will be publicly available
only in hard copy form. Publicly available docket materials are
available either electronically in EDOCKET or in hard copy form at the
Air and Radiation Docket, Docket ID No. OAR-2003-0051, EPA/DC, EPA
West, Room B102, 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 Air
and Radiation Docket is (202) 566-1742.
FOR FURTHER INFORMATION CONTACT: Mr. Bob Schell, Emission Standards
Division (C439-02), Office of Air Quality Planning and Standards,
Environmental Protection Agency, Research Triangle Park, NC 27711,
telephone number (919) 541-4116, e-mail address: [email protected].
SUPPLEMENTARY INFORMATION: Regulated Entities. Categories and entities
potentially regulated by this action include:
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NAICS Examples of regulated
Category code\1\ entities
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Industry......................... 331111 Existing by-product coke
324199 oven batteries subject
to emission limitations
in 40 CFR 63.302(a)(2)
and nonrecovery coke
oven batteries subject
to new source emission
limitations in 40 CFR
63.303(b). These
batteries are subject
to maximum achievable
control technology
(MACT) requirements and
are known as ``MACT
track'' batteries.
Federal government............... ........... Not affected.
State/local/tribal government.... ........... Not affected.
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\1\ North American Industry Classification System.
This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to be regulated by this
action. To determine whether your facility is regulated by this action,
you should examine the applicability criteria in Sec. 63.300 of the
national emission standards for coke oven batteries. If you have any
questions regarding the applicability of this action to a particular
entity, consult the person listed in the preceding FOR FURTHER
INFORMATION CONTACT section. Worldwide Web (WWW). In addition to being
available in the docket, an electronic copy of today's final rule
amendments will also be available on the Worldwide Web (WWW) through
the Technology Transfer Network (TTN). Following the Administrator's
signature, a copy of the final rule amendments will be placed on the
TTN's policy and guidance page for newly proposed or promulgated rules
at http://www.epa.gov/ttn/oarpg. The TTN provides information and
technology exchange in various areas of air pollution control.
Judicial Review. Under section 307(b)(1) of the CAA, judicial
review of the final rule amendments is available only by filing a
petition for review in the U.S. Court of Appeals for the District of
Columbia Circuit by June 14, 2005. Under section 307(d)(7)(B) of the
CAA, only an objection to the final rule amendments that was raised
with reasonable specificity during the period for public comment can be
raised during judicial review. Under section 307(b)(2) of the CAA, the
requirements that are the subject of this document may not be
challenged later in civil or criminal proceedings brought by the EPA to
enforce these requirements.
Outline. The information presented in this preamble is organized as
follows:
I. Background
II. Summary of the Final Rule Amendments
A. What Are the Affected Sources and Emissions Points?
B. What Are the Requirements?
III. Response to Major Comments
A. Comments on the Overall Risk Program and Policy
B. Risk Comments Specific to Coke Ovens
C. Comments on Section 112(d)(6) Review Policy
D. Specific Comments on Section 112(d)(6) Review of Coke Ovens
IV. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act
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 and Safety Risks
H. Executive Order 13211: Actions That Significantly Affect
Energy Supply, Distribution, or Use
I. National Technology Transfer Advancement Act
J. Congressional Review Act
I. Background
EPA promulgated national emission standards for charging, door
leaks, and topside leaks from coke ovens batteries at 58 FR 57898,
October 27, 1993 (40 CFR part 63, subpart L) under section 112(d) of
the CAA. Section 112(f)(2) of the CAA requires EPA to determine for
each section 112(d) source category if the promulgation of additional
standards is required ``in order to provide an ample margin of safety
to protect public health.'' We also have
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discretion to impose a more stringent emissions standard to prevent
adverse environmental effect if such action is justified in light of
costs, energy, safety, and other relevant factors. On August 9, 2004
(69 FR 48338), we proposed amendments to the national emission
standards for coke oven batteries that included more stringent
requirements for certain by-product coke oven batteries to address
health risks remaining after implementation of the 1993 national
emission standards. The proposed amendments also included provisions
pursuant to the 8-year review requirements of CAA section 112(d)(6).
In our proposal preamble, we presented the maximum individual risk
(MIR) estimate for coke oven emissions from those emission points
subject to the 1993 national emission standards. The MIR estimate was
200 in a million (69 FR 48346). We also explained at proposal that, as
required under the Benzene NESHAP \1\ decision framework (codified in
section 112(f)(2)(A) and (B)), we considered the level of risk from the
limits in the 1993 national emission standards (i.e., 200 in a million)
to be acceptable after considering several factors (69 FR 48347-48350).
These factors included the number of exposed people with cancer risk
level estimates greater than 1 in a million (approximately 300,000
people or 7 percent of the exposed population), the number of people
for whom cancer risk levels are greater than 100 in a million (less
than 10 people), the estimate of annual incidence of cancer (0.04), and
the projected absence of adverse noncancer effects.\2\ Also considered
in the evaluation in the proposal was the protective nature of many of
the assumptions leading to these estimates of potential residual risk.
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\1\ National Emission Standard for Hazardous Air Pollutants
(NESHAP): Benzene Emissions from Maleic Anhydride Plants,
Ethylbenzene/Stryene Plants, Benzene Storage Vessels, Benzene
Equipment Leaks, and Coke By-Product Recovery Plants (54 FR 38044,
September 14, 1989).
\2\ All estimates of population risk and estimated annual
incidence in these final rule amendments are based on an upper-bound
cancer unit risk estimate, a 70-year exposure duration, and our best
estimates of exposure concentrations; cancer risk estimates using
best estimates for exposure duration and unit cancer risk would
yield lower risk estimates.
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Under section 112(o)(7) of the CAA, we are required to issue
revised cancer guidelines prior to the promulgation of the first
residual risk rule under section 112(f) (an implication being that we
should consider these revisions in the various residual risk rules).
Since our August 2004 proposal, we have issued revised cancer
guidelines and also supplemental guidance which deal specifically with
assessing the potential added susceptibility from early-life exposure
to carcinogens. We have considered our decisions in these final rule
amendments in light of the revised cancer guidelines and supplemental
guidance. The supplemental guidance provides an approach for adjusting
risk estimates to incorporate the potential for increased risk due to
early-life exposures to chemicals that are thought to be carcinogenic
by a mutagenic mode of action. For these chemicals, the supplemental
guidance indicates that, in lieu of chemical-specific data on which age
or life-stage specific risk estimates or potencies can be determined,
default ``age dependent adjustment factors'' can be applied when
assessing cancer risk for early-life exposures to chemicals which cause
cancer through a mutagenic mode. In light of this guidance, EPA has
evaluated the available scientific information associated with
pollutants emitted by coke ovens and believes it is appropriate to
apply the default factors in the risk assessment supporting today's
final rule amendments. The chief HAP emitted by coke ovens, coke oven
emissions, is specifically enumerated in CAA section 112(b)(1). Coke
oven emissions are likely to cause cancer through a mutagenic mode of
action. We base this conclusion on the data on coke oven emissions
mutagenicity which has been summarized by EPA\3\ \4\ and the
International Agency for Research on Cancer,\5\ and reported in
numerous, more recent studies available in the peer-reviewed
literature. The result of that determination is that our individual and
population cancer risk estimates for lifetime exposures that begin at
birth and extend through adulthood will increase from proposal by a
factor of 1.6, \6\ a factor that considers the assumption of constant
exposure over the 70-year exposure duration (birth to adulthood) we
used in estimating individual and population risk. These further
assumptions of increased cancer potency and birth to 70-year residence
of the entire population in the area assessed were not part of the
proposed rule amendments.
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\3\ Carcinogen Assessment of Coke Oven Emissions: Final Report.
U.S. Environmental Protection Agency, Office of Health and
Environmental Assessment. EPA-600/6-82-003F. February 1984.
\4\ ``Coke Oven Emissions.'' U.S. Environmental Protection
Agency. Integrated Risk Information System (IRIS). 1989. Available
at: http://www.epa.gov/irissubst/0395.htm.
\5\ IARC Monographs Supplement 7. International Agency for
Research on Cancer. 1987, page 176. Available at: http://www-cie.iarc.fr/htdocs/monographs/suppl7/coke production.html.
\6\ The ``Supplemental Guidance for Assessing Susceptibility
from Early-Life Exposure to Carcinogens' recommends applying default
adjustment factors to early life stage exposures to carcinogens
acting through a mutagenic mode of action. The Supplemental Guidance
recommends an integrative approach that can be used to assess total
lifetime risk resulting from lifetime or less-than-lifetime exposure
during a specific portion of a lifetime. The following adjustments
represent the approach suggested in the Supplemental Guidance: (1)
For exposures before 2 years of age (i.e., spanning a 2-year time
interval from the first day of birth up until a child's second
birthday), a 10-fold adjustment; (2) for exposures between 2 and
less than 16 years of age (i.e., spanning a 14-year time interval
from a child's second birthday up until their sixteenth birthday), a
3-fold adjustment; and (3) for exposures after turning 16 years of
age, no adjustment. In applying this factor to population risk, risk
bins shown in appendix I of the risk assessment document were
multiplied by 1.6, and the populations associated with those new
risk bins were recounted depending on whether the bin risks were
greater than 1 in a million, 10 in a million, or 100 in a million.
The cancer incidence value was directly multiplied by the 1.6
factor. The analysis and more detailed calculations may be found in
the docket for this rulemaking.
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Based on the supplemental guidance, we have revised our risk
estimates by applying the default adjustment factors to account for
increased susceptibility that might occur due to exposures that occur
from birth to 16 years of age. The increased risk due to consideration
of the exposures assumed to occur from birth to 16 years of age
(included in the 70-year total exposure duration) results in a revised
upper-bound estimate. For the source category associated with the 1993
national emission standards, the revised MIR estimate is 300 in a
million. We have chosen to also apply the default adjustment to other
analyses used to support the determination that the MIR of 200 in a
million was acceptable. However, we acknowledge that more refined
modeling of exposure would be necessary to adequately express the
effect of early life susceptibility to overall estimates of population
risk. For example, not all individuals are expected to be born in the
area assessed. Nonetheless, after application of the default adjustment
factor, our conclusions in the proposed rule amendments do not change
and further refinement of the assessment was not warranted. The
assumptions of exposure initiation (at birth for all) and cancer risk
for coke oven emissions based on the application of the supplemental
guidance would affect the number of exposed people with cancer risk
levels greater than 1 in a million (500,000 people or 12 percent of the
exposed population), the number of people exposed to risk levels
greater than 100 in a million (approximately 70 people), the annual
incidence of cancer (0.06), and the uncertainty associated
[[Page 19994]]
with the estimates of risk. The remaining factors we considered (e.g.,
actual emissions versus allowable emissions and the projected absence
of adverse noncancer effects) are unaffected.
Although we are adjusting risk estimates upward to reflect the new
supplemental guidance, these estimated risk increases must also be
tempered by consideration of other factors that were discussed at
proposal and in the risk assessment document, and the further
protective assumption added to the risk assessment that all individuals
are born in the assessed area. For example, the coke oven battery
sources are consistently controlling emissions below the level allowed
by the 1993 national emission standards, which results in a 30 percent
reduction in the estimated MIR. Our 70-year exposure assumption
includes exposures from birth to 70 years. If exposures were from 3
years to 73 years, the adjustment factor would be less than 1.6. If
exposures were from 16 years to 86 years, no adjustment would be
necessary. In addition, we used a health-protective assumption of a 70-
year exposure duration in our risk estimates; however, using the
national average residency time of 12 years would reduce the estimate
of risk by a factor of six (69 FR 48347). Our 1984 unit risk estimate
(URE) for coke oven emissions is considered a plausible upper-bound
estimate; actual potency is likely to be lower. After considering all
of these factors, we continue to consider the MIR due to emissions at
the limits in the 1993 national emission standards to be an acceptable
level of risk (within the meaning of the Benzene NESHAP decision
framework discussed at 69 FR 48339-48340, 48347-48348). As mentioned in
the recently published cancer guidelines, we will continue to develop
and present, to the extent practicable, an appropriate central estimate
and appropriate lower and upper-bound estimates of cancer potency.
Development of new methods or estimates is a process that will require
independent peer review.
We also re-examined our decision as to what level of control is
necessary to provide an ample margin of safety to protect human health
in light of applying the early-life exposure default adjustment
factors. The 2010 lowest achievable emission rate (LAER) levels (which
we are adopting as residual risk standards in today's action) will
reduce the MIR from exposure to coke oven emissions to 270 in a
million. In addition, the reductions will result in approximately
200,000 fewer people having excess lifetime cancer risks of greater
than 1 in a million from exposure to these emissions. After considering
these estimates and the other factors explained in detail in the
preamble to the proposed rule amendments, we continue to believe that
the 2010 LAER levels provide an ample margin of safety to protect
public health.
The proposal allowed a 60-day comment period ending October 8,
2004. The EPA's EDOCKET system logged a total of 16 public comments in
Docket Number OAR-2003-0051. Commenters included one state association,
two state agencies, a coalition of three major environmental groups, 9
industry trade associations, one steel company, and two individual
commenters. Each of their comments is summarized in our response to
comments document contained in the rulemaking docket.
II. Summary of the Final Rule Amendments
A. What Are the Affected Sources and Emission Points?
The affected sources are each coke oven battery subject to the
emission limitations in 40 CFR 63.302 or 40 CFR 63.303 (the 1993
national emission standards). There are five affected sources in this
category: Four existing by-product recovery batteries and one
nonrecovery battery. The final rule amendments apply to emissions from
doors, topside port lids, offtake systems, and charging on existing by-
product coke oven batteries. Provisions are also included for emissions
from doors on new and existing nonrecovery batteries and charging on
new nonrecovery batteries.
B. What Are the Requirements?
For existing by-product batteries, the final rule amendments limit
visible emissions from coke oven doors to 4 percent leaking doors for
tall batteries and for batteries owned or operated by a foundry coke
producer. Short batteries are limited to 3.3 percent leaking doors.
Visible emissions from other emission points are limited to 0.4 percent
leaking topside port lids and 2.5 percent leaking offtake systems. No
change has been made to the limit for charging--emissions must not
exceed 12 seconds of visible emissions per charge. Each of these
visible emission limits is based on a 30-day rolling average. The final
rule amendments replace the less stringent limits that became effective
on January 1, 2003, for MACT track batteries and are equivalent to the
limits that will become effective on January 1, 2010, for batteries
subject to LAER track requirements. We have not changed the standards
for new by-product batteries.
The monitoring, reporting, and recordkeeping requirements in the
existing national emission standards continue to apply to existing by-
product coke oven batteries on the MACT track. These requirements
include daily performance tests to determine compliance with the
visible emission limits. Each performance test must be conducted by a
visible emissions observer certified according to the test method
requirements. A daily inspection of the collecting main for leaks is
also required. Specific work practice standards must also be
implemented if required by the provisions in 40 CFR 63.306(c). Under
the existing standards, companies must make semiannual compliance
certifications; report any uncontrolled venting episodes or startup,
shutdown, or malfunction events; and keep records of information needed
to demonstrate compliance.
We are also issuing amendments for the improved control of charging
emissions from a new nonrecovery battery (i.e., constructed or
reconstructed on or after August 9, 2004). Fugitive charging emissions
are subject to an opacity limit of 20 percent. A weekly performance
test is required to determine the average opacity of five consecutive
charges for each charging emissions capture system. The certified
observer must determine and record the highest 3-minute average opacity
for each charge; compliance is based on the average of the highest 3-
minute averages for five consecutive charges. Emissions of particulate
matter (PM), a surrogate for particulate HAP in coke oven emissions,
from a charging emissions control device are limited to 0.0081 pounds
per ton (lb/ton) of dry coal charged. A performance test using EPA
Method 5 (40 CFR part 60, appendix A) is required to demonstrate
initial compliance with subsequent performance tests at least once
during each title V permit term. If any visible emissions are observed
from a charging emissions control device, the owner or operator is
required to take corrective action and follow up with a visible
emissions observation by EPA Method 9 (40 CFR part 60, appendix A) to
ensure that the corrective action had been successful. Any Method 9
observation of the charging emissions control device greater than 10
percent opacity must be reported as a deviation in the semiannual
compliance report. The final rule amendments also require the owner or
operator to implement a work practice standard designed to ensure
[[Page 19995]]
that the draft on the oven is maximized during charging.
We are also promulgating a work practice standard for the control
of door leaks from all nonrecovery coke oven batteries on the MACT
track. The owner or operator is required to observe each coke oven door
after each charge and record the oven number of any door from which
visible emissions occur. If a coke oven door leak is observed at any
time during the coking cycle, the owner or operator must take
corrective action and stop the leak within 15 minutes from the time the
leak is first observed. After a door leak has been stopped, no
additional leaks are allowed from doors on that oven for the remainder
of that oven's coking cycle.
We are allowing an exception to the 15-minute limit period for
stopping a door leak. The owner or operator may have up to 45 minutes
to stop a door leak no more than twice per battery during any
semiannual reporting period. The limit of two occurrences does not
apply if a worker must enter a cokeside shed to stop a leaking door
under a cokeside shed. In that case, the owner or operator may have up
to 45 minutes to take corrective action and stop the leak. The owner or
operator also must operate the evacuation system and control device for
the cokeside shed at all times that there is a leaking door under the
cokeside shed.
The owner or operator of a nonrecovery battery is also required to
identify malfunctions that might cause a door to leak, establish
preventative measures, and specify types of corrective actions for such
events in its startup, shutdown, and malfunction plan. The final rule
amendments also include recordkeeping and reporting requirements
necessary to demonstrate initial and continuous compliance.
We are also amending the provision in 40 CFR 63.303(a)(2) for
existing nonrecovery batteries to state that the work practice standard
for charging also applies to new nonrecovery batteries. These work
practices are described in 40 CFR 63.306(b)(6).
We are requiring that the owner or operator of existing by-product
coke oven batteries on the MACT track comply by July 14, 2005. See CAA
section 112(f)(4)(A), which states that existing sources must comply
with section 112(f) residual risk standards within 90 days of the
standard's effective date. We are also requiring that nonrecovery coke
oven batteries on the MACT track comply by July 14, 2005 (or upon
startup for a new nonrecovery battery for which construction commenced
after August 9, 2004).
The basis for the final rule amendments is set out in the preamble
to the proposed rule amendments (69 FR 48338) unless otherwise
explained in our responses to the major comments in this preamble. Our
responses to all the comments are included in the docket.
III. Response to Major Comments
A. Comments on the Overall Risk Program and Policy
1. Ample Margin of Safety
Comment: One commenter argued that CAA section 112(f)(2) makes
clear that EPA's residual risk standards must reduce the lifetime risk
to the single individual most exposed to emissions from any one of
these sources to less than 1 in a million. In contrast, another
commenter stated that EPA has properly construed the statute as
establishing a trigger under which EPA must undertake a residual risk
determination but not as establishing the level of risk reduction that
must be achieved and further stated that EPA is not required to provide
protection that achieves the 1 in a million excess cancer risk level.
Response: The commenter's argument that the statute requires
section 112(f) residual risk standards to reduce cancer risk to a most
exposed individual to less than 1 in a million lacks a basis in the
statutory text or in policy. Section 112(f)(2)(A) does indeed require
us to promulgate standards if the ``lifetime excess cancer risk to the
individual most exposed to emissions from a source in a category or
subcategory'' is greater than 1 in a million. It does not establish
what the level of the standard might be. See ``A Legislative History of
the Clean Air Act Amendments of 1990,'' page 1789 (Conference Report),
stating that ``[s]ection 112(f) contains a trigger for standards for
non-threshold pollutants. * * *'' Rather, the level of the standard is
to ``provide an ample margin of safety'' to protect public health.
``Ample margin of safety'' is to be interpreted under the two-step
formulation established by the Benzene NESHAP and CAA section
112(f)(2)(B).
Under that formulation, there is no single risk level establishing
what constitutes an ample margin of safety (69 FR 48348). Rather, the
Benzene NESHAP approach codified in section 112(f)(2) is deliberately
flexible, requiring consideration of a range of factors (among them
estimates of quantitative risk, incidence, and numbers of exposed
persons within various risk ranges; scientific uncertainties; and
weight of evidence) when determining acceptability of risk (the first
step in the ample margin of safety determination) (54 FR 38045).
Determination of ample margin of safety, the second step of the
process, requires further consideration of these factors, plus
consideration of technical feasibility, cost, economic impact, and
other factors (54 FR 38046). As we stated in our ``Residual Risk Report
to Congress'' \7\ issued under CAA section 112(f)(1), we do not
consider the 1 in a million individual additional cancer risk level as
a ``bright line'' mandated level of protection for establishing
residual risk standards, but rather as a trigger point to evaluate
whether additional reductions are necessary to provide an ample margin
of safety to protect public health. This interpretation is supported by
the interpretive language in the preamble to the Benzene NESHAP, which
was incorporated by Congress in section 112(f)(2)(B).
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\7\ Residual Risk Report to Congress. U.S. Environmental
Protection Agency, Office of Air Quality Planning and Standards.
EPA-453/R-99-001. March 1999.
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We consequently believe that the commenter's bright line approach
is not supported by the statute. Indeed, it is likely incorrect as a
matter of law.\8\ In any event, EPA has concluded that the flexible
approach to risk acceptability and ample margin of safety set forth in
the Benzene NESHAP is desirable in light of the complex judgments EPA
will make under section 112(f). The commenter's rigid approach lacks a
basis in sound policy as well.
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\8\ It is true that the Senate version of CAA section 112(f)
mandated elimination of lifetime risks of carcinogenic effects
greater than 1 in 10 thousand to the individual in the population
most exposed to emissions of a carcinogen. (See ``A Legislative
History of the Clean Air Act Amendments of 1990,'' pages 7598 and
8518.) However, this version of the legislation was not adopted. The
EPA believes that the (rejected) Senate version of section 112(f)
shows that Congress was capable of mandating a level of risk
reduction had it wished to do so.
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Comment: Two commenters contended that EPA rejected a more
stringent standard because the control technologies were not available
at a reasonable cost. The commenters maintained that the more stringent
standard would reduce risks to an acceptable level, and that the EPA
does not have statutory authority to consider costs. According to one
commenter, section 112(f) clearly calls for costs to be considered only
in the area of adverse environmental effects.
In contrast, a third commenter stated that EPA should not require
any further reductions unless those reductions will produce discernible
results stating that EPA justified the proposed additional reductions
based on costs, yet noted that the reduction in cancer risk was so
[[Page 19996]]
small that it was within the noise level of EPA's ability to estimate.
The commenter did not believe it was good policy to require additional
reductions if EPA cannot be sure they will result in any benefit.
Response: The first two commenters are mistaken regarding the
consideration of costs in determining ``ample margin of safety.'' While
it is correct that EPA does not consider costs in the first step (the
``acceptability'' determination) of the ample margin of safety
determination, costs are a factor which must be considered in the
second step of the process (54 FR 38046).\9\ We have considered costs
here in the authorized and required manner in assessing ample margin of
safety after determining if baseline risk (level of risk remaining
after imposition of MACT) is acceptable (54 FR 38045; 69 FR 48348-
48349).
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\9\ See also the Vinyl Chloride opinion at 824 F.2d 1146.
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In establishing an ample margin of safety, we weigh a range of
factors, allowing flexibility on what constitutes an ample margin of
safety (69 FR 48348). Some of the factors that can be considered are
estimates of individual risk, incidence, numbers of exposed persons
within various risk ranges, scientific uncertainties, weight of
evidence, as well as potential standards' technical feasibility, cost,
and economic impact. Balancing the above factors with the ability to
achieve meaningful risk reductions is a critical component of the
residual risk rulemaking process.
We do not agree with the other commenter that the standards fail to
produce discernible results. The emission limits are more stringent
than the current MACT standards. The emissions reductions can be
achieved at a nominal cost, they are technically feasible, and we
estimate that the reductions will ensure that approximately 200,000
fewer people having excess lifetime cancer risks of greater than 1 in a
million.
2. Co-Located Sources and Facilitywide Risk
Comment: One commenter said that many coke plants are part of a
larger steel production complex; consequently, EPA should have
considered the combined risk of all emission sources at the facility,
including pushing, quenching, and battery stacks. The commenter also
asserted that EPA should have considered the impact on residents near
plants that are located in the same area (e.g., East Chicago and Gary,
IN) and that the legislative history shows Congress' intent that EPA
consider the combined risks of all sources of HAP emissions, regardless
of source category, that are co-located. Specifically, Congress
intended that the residual risk standards be stringent enough:
so that when all residual risk standards have been set, the public
will be protected with an ample margin of safety from the combined
emissions of all sources within a major source.\10\
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\10\ Floor Statement of Senator Durenberger in ``A Legislative
History of the Clean Air Act Amendments of 1990'', vol. 1, page 868
(Senate Debate on Conference Report).
The commenter disagreed with EPA's statement that delaying a full
assessment of risk was a practical necessity because of the lack of
information on actual emissions from pushing, quenching, and battery
stacks. The commenter argued, essentially, that we are obligated to
develop standards for the totality of risks simultaneously.
Another commenter also stated that EPA should consider the facility
as a whole and requested stringent controls on each source category to
ensure the goals of the residual risk provisions are met in an
expeditious manner. The commenter also asked that EPA ensure health
protection in cases where there are multiple facilities in close
proximity.
Three commenters voiced opposition to consideration of emissions
other than those from the specific source category at issue. One
commenter indicated that the initial trigger for determining whether a
residual risk standard was required at all must be applied only to a
particular ``category or subcategory of sources'' (quoting CAA section
112(f)(2)(A)). The commenter argued that the provision in section
112(f)(2)(A) requiring us to develop residual risk standards if risks
from the source category exceed a certain level also serves as a
limitation in that ``residual risk determinations are to be done on a
category or subcategory basis, not on a source or facilitywide basis.''
The commenter concluded that facilitywide risk could not be considered
at all when establishing residual risk standards. According to this
commenter, the only exception to a source category approach would be a
voluntary request for a facilitywide determination so that they could
use the most cost-effective set of reductions.
Another commenter maintained that residual risk determinations for
facilities as a whole would be acceptable only if EPA were to do so on
a source category-by-source category basis. This commenter continued
that if EPA were to adopt that approach, then the Agency cannot impose
more risk reduction requirements on one source category to compensate
for risks posed by another (co-located) source category.
Another commenter argued that statutory language prevents
consideration of risks posed by anything but the source category at
issue, and further argued that any other approach would be difficult
and confusing to implement. The commenter asserted that although EPA
can consider facilitywide risk, residual risk standards should not be
applied disproportionately to the first of the co-located sources
evaluated in the residual risk process.
Three commenters disagreed with EPA's use of Senator Durenburger's
statement as the basis for the Agency's ``facilitywide'' interpretation
of the statute. One commenter contended that the statement of one
Senator cannot overcome the statutory language of section 112(f)(2) or
the congressional directive to follow the Benzene NESHAP, particularly
when the Senator noted that his remarks were not providing EPA specific
new direction. Another commenter added that it was inappropriate to
rely on the Senator's statements because the Conference Committee Joint
Explanatory Statement suggests that the Senate and House Managers did
not agree to much with respect to the Senate bill, and the Conference
Report contains no explanation of section 112(f) on which EPA can rely
for support.
One commenter stated that a facilitywide approach would be bad
policy because it would constrain the ample margin of safety for
individual source categories beyond the level intended in the Benzene
NESHAP framework. Trying to reconcile aggregated risk from dissimilar
sources that may be geographically far apart may be difficult to
accomplish and may not identify better opportunities for emission
reductions (than would serial analyses for individual source
categories). The commenter also stated that Congress directed EPA to
establish a list of source categories and was well aware that many
plants would have emission units falling into more than one category.
Congress also anticipated that standards under section 112(d) and (f)
would be staggered over time. The commenter contended that a
facilitywide analysis could be too complex, speculative, and costly for
other residual risk standards; therefore, EPA cannot and should not
mandate facilitywide analyses in standards under section 112(f).
Response: First, we should clarify the scope of the issue. Some
discussion of
[[Page 19997]]
this issue has used loose terminology (i.e., ``facilitywide,'' ``co-
located,'' ``background'') as an imprecise shorthand for the various
pollutant sources to which an individual could be exposed. In fact,
there is a continuum of possible sources of exposure to consider. One
could consider, in the initial assessment of residual risk from a
source category, exposure from: (1) The individual emission points
regulated under the standards being evaluated--here, charging, doors,
lids, and offtakes--excluding all other sources, including nearby
sources in the same category; (2) emissions from the source category
only, but including co-located sources in the same category; (3)
emission points at a facility that are necessarily co-located because
they are part of an integrated common activity (e.g. pushing,
quenching, and battery stacks for coke ovens); (4) all emissions at a
facility (i.e., a stationary source or group of sources in any source
category in a contiguous area under common control); (5) emissions from
similar (or all) nearby facilities (``closely-located'' sources) whose
emissions affect all or some of the same individuals; or (6) all
ambient HAP, regardless of their source (e.g., automobiles, HAP
originating from global sources).\11\
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\11\ Of course, in all of these cases, EPA would limit
consideration to HAP emissions that are either the same as those
emitted by the sources under evaluation or that have the same health
effect or affect the same target organ.
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After considering the statute and the divergent views of commenters
on these topics, EPA agrees with those commenters who stated that the
natural reading of section 112(f) is that EPA should evaluate risks
posed by the emissions only from the category or subcategory. Section
112(f)(2)(A) instructs EPA to promulgate standards for ``each category
or subcategory'' for which it has adopted MACT standards, if such
standards are needed in order to provide an ample margin of safety to
protect public health. The statutory ``trigger'' provision at the end
of section 112(f)(2)(A), which mandates that EPA promulgate residual
risk standards when ``cancer risks to the individual most exposed to
emissions from a source in the category'' exceed a designated level,
clearly is directed exclusively at emissions from the source category
alone, and thus supports a reading that the ultimate requirement of the
provision likewise applies only to emissions from the source
category.\12\
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\12\ Further, section 112(c)(9) authorizes EPA to delist a
category or subcategory on the basis of specified risk criteria.
This section does not require EPA to look beyond the relevant
category or subcategory in making delisting decisions. It would be
inconsistent for Congress to allow categories or subcategories to be
delisted entirely from the section 112 regulatory program using a
category specific analysis, yet require EPA to look beyond the same
specific category when making similar risk assessments under section
112(f).
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We further agree, that while this is the first determination under
section 112(f) since the adoption of the Clean Air Act Amendments of
1990, Congress intended that EPA continue to apply the same test for
determining when public health is protected with an ample margin of
safety that was in effect before those amendments. Section 112(f)(2)(B)
instructs EPA to use the ample margin of safety decision framework
adopted in the Benzene NESHAP to make section 112(f) residual risk
determinations, and indeed states that:
[n]othing in subparagraph (A) or in any other provision of this
section shall be construed as affecting, or applying to the
Administrator's interpretation of this section, as * * * set forth
in the Federal Register of September 14, 1989.
In the Benzene NESHAP, EPA interpreted and applied the two-step
test drawn from the D.C. Circuit's Vinyl Chloride opinion. Under that
approach, EPA must first determine what level is ``safe'' ``based
exclusively upon the Administrator's determination of the risk to
health from a particular emission level.'' (See 54 FR 38055 (quoting
Nat'l Res. Defense Council, Inc. v. EPA, 824 F.2d 1146 (D.C. Cir. 1987)
(en banc)). The Court made clear, however, that ``safe'' does not mean
``risk free.'' Id. Rather, the EPA must ``determine what inferences
should be drawn from available scientific data and decide what risks
are acceptable in the world in which we live.'' Id. In the second step
under Vinyl Chloride and the Benzene NESHAP, once an ``acceptable
risk'' level is determined, EPA must decide whether additional
reductions are necessary to provide ``an ample margin of safety'' (54
FR 38049). As part of this second decision, EPA may consider the costs
of additional reductions, technological feasibility, uncertainties
about available information or other relevant factors. Id.
After examining the statutory scheme, the Benzene NESHAP, and sound
policy concerns, EPA has concluded that, in its assessment of
``acceptable risk'' for purposes of section 112(f), the agency will
only consider the risk from emissions from that source category. This
was the approach in the Benzene NESHAP, wherein EPA limited
consideration of acceptability of risk to the specific sources under
consideration (coke byproduct recovery plants, benzene storage vessels,
benzene equipment leaks, ethylbenzene/styrene process vents, and maleic
anhydride process vents) rather than to the accumulation of these and
other sources of benzene emissions that may occur at an entire
facility.\13\ See, e.g., 54 FR 38061 (stating in regard to
consideration of natural background levels of a pollutant that
``considering other sources of risk from benzene exposure and
determining the acceptable risk level for all exposures to benzene, EPA
considers this inappropriate because only the risks associated with the
emissions under consideration are relevant to the regulation being
established and, consequently, the decision being made.'') The Agency
also rejected approaches that would have mandated consideration of
background levels of benzene in assessing acceptability of risk. \14\
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\13\ EPA will consider, consistent with the Benzene NESHAP
decision, whether co-location of entities within the same source
category ``significantly influences the magnitude of the MIR or
other risk levels'' (54 FR 38051). In this rulemaking, EPA has
concluded that the health risks from the emissions at issue in this
rulemaking are not affected (let alone significantly affected) by
co-location with other entities in the same source category.
\14\ EPA concluded that ``comparison of acceptable risk should
not be associated with levels in polluted urban air'' (54 FR 38061).
Background levels of certain HAPs can be relatively high, perhaps
even above a level that might be considered ``safe.'' These
background levels (including natural background) are not barred from
EPA's analysis, but EPA will consider them along with other factors,
such as cost and technical feasibility, in the second step of its
112(f) analysis. To decide otherwise, EPA would have to conclude--
inconsistent with the Benzene NESHAP and sound policy--that 112(f)
requires EPA to shut down any source that emits a HAP in an area
with high background pollution, even if the emissions from that
source are extremely small and do not appreciably affect overall
risk.
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EPA has concluded that the sound policy embodied in the Benzene
NESHAP remains the approach that EPA should follow in determinations
under section 112(f). At the first step, when determining ``acceptable
risk,'' EPA will consider public health risks that result from
emissions from the source category only. Not only is this
interpretation supported by the text of the statute and prior
regulatory practice, but we are impressed and daunted at the practical
problems of implementing a compulsory facilitywide examination. For
example, as commenters pointed out, in future rules, the myriad
combinations of source categories present at different facilities could
create situations where nationwide consideration of residual risk
becomes a practical impossibility because every facility would present
a different fact pattern of source categories. Yet section 112(f)
contemplates national determinations, not case-by-case evaluations and
standards.
[[Page 19998]]
At proposal, EPA cited a portion of a floor statement by Senator
Durenberger as support for the position that EPA must assess the risk
from an entire facility. EPA agrees with the commenters who stated that
this statement is not sufficient evidence of Congressional intent to
justify a different response than that adopted in the Benzene NESHAP,
especially when, later in the same statement, the Senator states that
section 112(f) is intended to be a ``return to current law'' under the
Benzene NESHAP. (See Legislative History, Vol. 1 at 875-76.) As noted
above, EPA did not adopt standards covering entire facilities in the
Benzene NESHAP.
This said, EPA disagrees that section 112(f) precludes EPA from
considering emissions other than those from the source category or
subcategory entirely. EPA must still determine whether additional
reductions should be required to protect public health with ``an ample
margin of safety.'' EPA believes one of the ``other relevant factors''
that may be considered in this second step is co-location of other
emission sources that augment the identified risks from the source
category. The Benzene NESHAP does not explicitly identify this as a
relevant factor under step two, but the decision does acknowledge that
``multiple exposures to chemicals are important to understand and
consider in the EPA's overall implementation of its public health
mandates' despite the fact that EPA has concluded that these risks
should not be ``routinely evaluated and considered in selecting'' the
level of acceptable risk (the first step of the Benzene analysis) (54
FR 38059).
The decision today is an example of a situation in which EPA has
determined such a relevant factor merits evaluation. Each of the
facilities subject to today's rulemaking is also subject to MACT
emission standards on coke oven emissions from pushing, quenching, and
battery stacks. These sources are necessarily co-located--they are
integral parts of the same industrial activity. In this instance, EPA
has the authority, in establishing ``an ample margin of safety,'' to
impose greater reductions on a particular source category when the
agency concludes that several of these co-located sources categories
have elevated the overall public health risk to unacceptable
levels.\15\ While this evaluation could be performed during the
development of an individual residual risk standard for any particular
source category that is part of a larger facility with multiple source
categories, such an analysis would necessarily require sufficient data
regarding the total facility emissions and the costs and risk impacts
of reducing those emissions. Such information may conceivably be
available when EPA does the first residual risk rule applicable to a
facility, but it is much more likely that an early evaluation of cross-
category risks will be inconclusive due to a lack of complete
information regarding other emission points. (In this rule, for
example, EPA does not yet have an accurate quantification of pushing
and quenching battery emissions reflecting these sources' operations
under MACT standards; such information is needed to reasonably assess
risks, costs, and further technologically feasible emission
reductions.) EPA expects to develop better information about what cost-
effective emission and risk reduction opportunities are available as
more source categories are assessed. EPA believes, in the future, it
may be able to identify potential emission reduction trade-offs between
co-located source categories that result in more efficient risk
reductions for less economic cost at a facility.
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\15\ This is not to say that the EPA may impose significant
reductions across an entire source category to alleviate health
risks posed by co-location at a subset of facilities. In these
circumstances, EPA believes it should further parse its emissions
standards so as to impose greater reductions only on those
facilities with significant co-location of other emissions. Put
another way, EPA may permissibly develop section 112(f) standards
that could result in different controls for co-located source
categories at a facility than for the same source category which is
not co-located.
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3. Actual Versus Allowable Emission Rates
We explained at proposal that we modeled emissions at the rates
allowed by the 1993 national emission standards because they represent
the source's potential emissions and risks and is, therefore,
consistent with the language in CAA section 112(f)(2).
Comment: We received some comments that agreed with the use of
allowable rather than actual emission rates while other comments stated
that we should use actual emissions. According to one commenter,
Congress meant for EPA to make realistic estimates of residual risk. In
support, the commenter pointed to the language of section 112(f)(2)
which refers to a different measure of risk (i.e., risk to the
``individual most exposed to emissions from a source'' rather than
``maximum exposed individual'' or ``maximum individual risk'' used in
the Benzene NESHAP) and associated passages in the legislative history.
The commenter stated that EPA has data on actual emissions and should
use this information as the basis for the risk assessment for coke
ovens. Another commenter agreed with the decision to assume that
sources are complying with the 1993 national emission standards when
estimating emissions. The commenter also agreed with efforts to
evaluate actual versus ``worst case'' potential emissions when
estimating population risks and encouraged appropriate adjustments in
future risk assessments. Another commenter stated that the use of
maximum allowable emissions is particularly inappropriate for
industrial source categories with batch operations because they
consistently operate at levels well below the allowable rate.
One commenter stated that EPA should not assume perfect compliance
with allowable emission limits since several of these facilities are
out of compliance. The commenter believed that we must account for
noncompliance in the emission estimates.
Response: EPA believes it may evaluate potential risk based on
consideration of both actual and allowable emissions. This approach is
both reasonable and consistent with the flexibility inherent in the
Benzene NESHAP framework for assessing ample margin of safety. As a
general matter, allowable emissions are the maximum level sources could
actually emit and still comply with the national emission standards, so
modeling this level of emissions is inherently reasonable for
evaluating potential risks associated with current standards. As
discussed in other sections of this preamble, coke oven battery sources
are consistently controlling emissions below the level allowed by the
1993 national emission standards, which results in a 30 percent
reduction in the estimated MIR.
It is also reasonable that we consider actual emissions, when
available, as a factor in both steps of the determination (i.e.,
determining both risk acceptability and ample margin of safety). See 54
FR 38047, 38050-38051, 38053 (we acknowledge a probable overestimate of
emission levels in determining that risk and overall incidence is
probably less than the maximum estimated levels). For the final rule
amendments adopted today, years of monitoring data show that actual
emissions have been consistently lower than allowable levels (69 FR
48346-48347). Moreover, there is a sound empirical basis for coke oven
emissions to be lower than theoretically allowable levels. To allow for
process variability, sources typically strive to perform better than
required by emission standards so that the emission
[[Page 19999]]
increases which occur on individual days due to process variability
remain below emission standards. Failure to consider these data in risk
estimates would unrealistically inflate risk levels.
It is incorrect that a large number of these coke batteries are out
of compliance. The batteries are inspected every day to determine
compliance with the emission limits for doors, lids, offtakes and
charging. We have compiled the results of these compliance inspections,
and the details are in the rulemaking docket. The inspection results
show that the coke batteries are operating consistently below the
established emission limits and have shown essentially continuous
compliance.
4. Exposure Duration
Comment: Two commenters disagreed with the use of a 24-hour per day
exposure over a 70-year lifetime to estimate individual and population
cancer risks for refined risk assessments. According to one commenter,
this exposure assumption is inconsistent with the recommendations by
the National Research Council and the Commission on Risk Assessment and
Risk Management. In their Reports to Congress, these organizations
support development of distributional approaches to exposure
characterization based on knowledge of the characteristics of a
population's variability. This commenter asked EPA to develop a refined
exposure methodology that incorporates information available on
population residency times that will more accurately reflect population
risk estimates. The development of this exposure methodology should
also include a probabilistic analysis of estimated exposures. The other
commenter stated that the use of such an unrealistic assumption makes
the results overly conservative and will lead to additional and
unnecessarily stringent standards more frequently than necessary.
Response: We agree that our assumption that people may be present
at their homes for 24 hours per day over a 70-year lifetime represents
a scenario that likely overestimates the actual exposures received by
people living near the facilities. Most people have daily activities
that take them to areas where exposure concentrations are different and
move to new residences periodically. Both of these behaviors will tend
to lower lifetime exposures and, therefore, risk. The most significant
risk reductions would occur for the group of people who are the most
exposed. For these reasons, we are currently developing a methodology
that will allow us to consider a variety of parameters (e.g., residency
time, socio-economic conditions, age distribution, demographics, size
of the census block) that could affect exposure and risk to individuals
and populations that live in the vicinity of facilities. Other factors
(e.g., emigration out of and immigration into the ``exposure area,''
social factors that affect population mobility, and census block size)
may also influence the mobility of populations and, therefore, affect
estimates of exposure and risk. As part of this effort, we are also
investigating whether similar probabilistic techniques can be applied
to the MIR to develop meaningful alternative metrics of individual
risk. While this methodology is currently under development, we did not
have sufficient information to apply any of these factors to these coke
oven facilities.
Finally, regarding recommendations of the Commission on Risk
Assessment and Risk Management, we note that our overall approach is
consistent with some of those recommendations. For example, the Risk
Commission recommended that ``exposure assessments should not be based
on a hypothetical MEI * * * should rely on more representative
estimates or a maximally exposed actual person* * *.'' Our approach was
based on identifying the maximum concentration where the census data
identified people as actually living, and we assumed, as discussed
above, that exposure of this individual was for 70 years starting at
birth. Where we varied from the Commission's recommendation in this
area was in assuming a 70-year exposure duration for the population as
well. As just noted, we are developing a methodology that will allow us
to look at the exposure variability that might be seen in the exposed
populations. See the ``Residual Risk Report to Congress'' (at pages
128-130) summarizing similarity in approaches.
5. Hazard Index
Comment: Five commenters disagreed with use of the hazard index
(HI) of 1 as the safe or acceptable level for noncancer health effects.
One commenter stated that the HI level of 1 should be the ample margin
of safety level because the values which form the basis for calculating
HI already contain sufficient layers of safety to represent the ample
margin of safety. The commenter contended that the reference
concentration (RfC) or reference dose (RfD) represents the most
stringent ample margin of safety level EPA should adopt.
Three commenters recommended that EPA avoid establishing any bright
line for a safe or acceptable level for non-carcinogens. One of these
commenters explained that the HI of 1 would define both the acceptable
risk level and the ample margin of safety level in one step, which is
inconsistent with the two-step Benzene NESHAP framework. This commenter
argued that an HI of 1 is too conservative because ``the ample margin
of safety would always be set at or below an HI of 1.0, which would
have an effect equivalent to a cancer level of 10-4 within
the Benzene framework.'' The Commission on Risk Assessment and Risk
Management's report selected a threshold HI of 10 because the RfC on
which the HI is based already includes many uncertainty factors that
should not be compounded in the ample margin of safety decision.
Another commenter stated that EPA needs to clarify that the case-
by-case flexibility in the Benzene NESHAP framework also applies when
interpreting hazard quotients (HQ) and HI. Although the proposal
preamble did not identify a bright line, EPA's risk assessment document
stated that an HI of 1 for each facility should ordinarily represent
the safe or acceptable level, and that the ample margin of safety level
may be lower or equal to the acceptable level, but can never be higher.
The commenter objected because EPA was talking about an HI for a
facilitywide analysis (rather than a specific source category) and
because a rigid adherence to an HI of 1 for determining acceptable risk
is unwarranted. The EPA should reserve flexibility in interpreting and
applying HI and HQ acceptability, even in the screening stage. The
flexibility is needed because of the variability in uncertainty
factors, quality and consistency of data content, and other underlying
information and assumptions. The commenter provided additional specific
observations:
In some cases, an HI or HQ can represent negligible or
zero risk. There is no means to translate an HI or HQ into a
probability of an individual incurring the effect (as is done for
carcinogen effects).
The EPA should do the initial screening using a target
organ specific HI and should not aggregate across target organs and HAP
for either the initial screening or refined assessment. No health-based
conclusion can be reached from aggregating across different organs. An
HI ``roll up'' for multiple chemicals' HQ must be predicated on target
organ end points that are the same and a common mechanism or mode of
action.
[[Page 20000]]
Neither a range of 0.2 to 0.8 for HI nor a conservative
default of 0.2 is permissible under the CAA. The statute only refers to
the emissions and risk posed by a source category.
Response: Five commenters pointed out that a statement in the risk
assessment document indicated that an HI of 1 is the safe or acceptable
level. Our statement in the risk assessment document was incorrect and
has been revised. We did not use an HI of 1 as the acceptable level in
our analysis. In the proposal preamble, we explained that ``the maximum
estimated target organ specific HI for the emissions of HAP that may
cause effects other than cancer from all emission points at the
facility is 0.4,'' and that ``these emissions do not exceed a level
which is adequate to protect public health with an ample margin of
safety'' (69 FR 48350). Furthermore, we disagree that the ample margin
of safety should never be more stringent (or less stringent) than the
RfC (essentially an HQ or HI of 1) since, like the cancer framework, we
do not consider an HI of 1 to be a bright line. We will evaluate the
magnitude of the HI on a case-by-case basis.
We disagree that an HI of 1 is equivalent to a cancer risk of 1 in
10,000 as claimed by one commenter. As stated above, statements in the
risk document identifying an HI of 1 as a safe or acceptable level are
not correct and have been revised. We also disagree with the commenter
who felt that the HI of 1 was too health protective because it did not
consider different target organs. As used in the proposal and as
intended for use in future residual risk assessments, the HI limit does
reflect target organ specificity.
The Commission on Risk Assessment and Risk Management's report does
not say that an HI of 10 should be used as a level representing an
ample margin of safety. The HI of 10 is used in that report in the
context of screening (health-protective) risk assessments for residual
risk. For sources with HI greater than 10, the Commission suggested an
additional detailed risk assessment be performed. If the HI is still
greater than 1, the facility is supposed to ``examine options/choose
actions to reduce risk.'' For sources with HI between 1 and 10,
facilities are supposed to voluntarily reduce emissions to achieve a
lower risk category. The Commission recommended that if an HI is less
than 1, no further action is required.
We also note that most of these comments deal with conceptual
issues not relevant to this rulemaking. We have not needed to make
definitive determinations regarding appropriateness of any HI level
because we have determined that exposures to emissions of threshold HAP
from coke oven batteries (all emission points) are well within
acceptable levels and require no further control to achieve an ample
margin of safety.
B. Risk Comments Specific to Coke Ovens
1. Acceptable Risk
Comment: Two commenters contended that EPA considered factors that
might lessen the concern for risks, but did not give equal weight to
factors that increase concern. For example, the EPA's analysis ignored
HAP for which the Agency lacks cancer potency values.
Response: We disagree with the commenters' concern that our
analysis ignored HAP for which we lack cancer potency values. For those
situations when cancer potency values are not in the Integrated Risk
Information System (IRIS), we have established a prioritization process
for accessing health assessment information from outside EPA (as
described in our ``Residual Risk Report to Congress'' on pages 56
through 58). This hierarchy includes dose-response values from EPA as
well as other agencies that conduct scientific peer reviews such as the
California Environmental Protection Agency Air Resources Board (CARB)
and the Agency for Toxic Substances and Disease Registry (ATSDR), which
is part of the U.S. Department of Health and Human Services. These non-
EPA values incorporate the best available science, are conceptually
consistent with EPA's risk assessment guidelines, and have undergone a
level of scientific peer review. Far from being ignored, many of the
health assessment values used in the assessment were derived from non-
EPA sources (see Table B-1 in the risk assessment document).
Comment: The risk is underestimated because EPA did not consider
the risk from all carcinogenic HAP emitted from the facility.
Response: As stated in the risk assessment document, inhalation
cancer risk from the sources covered by the 1993 national emission
standards was estimated using the HAP ``coke oven emissions,'' for
which we have estimated a cancer URE. See CAA section 112(f)(6) which
specifically acknowledges the possibility of considering risks of coke
oven emissions as a whole; see also ``Residual Risk Report to
Congress'' at page 108, noting that we may of necessity consider risks
posed by the ``unique chemical substances'' enumerated in section
112(f)(6), rather than attempting to ascertain every element of these
complex mixtures and ascertaining a risk associated with each
component. It is not necessary to consider separately the presence of
each constituent of the mixture, coke oven emissions, which are also
known to be carcinogens since their contribution to cancer risk is
subsumed into the risk from the mixture. We considered the risk due to
individual constituents when assessing non-inhalation and noncancer
risks, when assessing risk from emission points where the composition
of the mixture may be different (e.g., after the pushing emission
control device), or when a screening level assessment was done. As
described in the risk assessment document, we based our selection of
HAP to be included in a screening level assessment on the availability
of information on toxicity and emissions. Additional discussion of the
HAP we considered is provided later in this preamble. The issue of HAP
from co-located sources and facilitywide risk is discussed elsewhere in
this preamble.
Comment: One commenter stated that we should not accept a risk
greater than 1 in 10,000 because of the weight of evidence that coke
oven emissions, arsenic, and benzene are ``known'' human carcinogens.
In support, the commenter cited the Benzene NESHAP * * * ``particular
attention will also be accorded to the weight of evidence presented in
the risk assessment of potential human carcinogenicity.''
Response: While the commenter is correct that particular attention
will be accorded to the weight of evidence presented in the risk
assessment of potential human carcinogenicity, the weight of evidence
is not the only health measure that must be considered. As stated in
the Benzene NESHAP * * * ``no specific factor in isolation could be
identified as defining acceptability under all circumstances'' (54 FR
38044). Therefore, the acceptability of risk depends on consideration
of a variety of factors and conditions. This assessment considered all
of those factors listed in the Benzene NESHAP.
2. Ample Margin of Safety
In the proposed rule, we said that even though emissions from
pushing, quenching, and battery stacks are part of a different source
category (because Congress singled out other emission points in section
112(d)(8) and 112(i)(8)), they ``are an integral part of the same
facilities covered by the national emission standards for charging,
door leaks, and topside leaks (they not only are part of the same
process but emit the same HAP)'' and
[[Page 20001]]
could permissibly be considered in setting the emission standard today
(69 FR 48340). Table 1 of the proposed rule amendments (69 FR 48346)
provided estimates of the risks posed by emissions from all components
of the coking process at the four facilities (i.e. door, lid, offtake,
charging, pushing, quenching, battery stack, and by-product plant
emissions).
As noted previously, EPA has not performed a complete residual risk
determination for these other source categories, EPA has investigated
the MIR and the population risk that result not only from the emissions
being addressed by today's rulemaking but also from the other coke oven
emission points located at the MACT track facilities. EPA's preliminary
analysis has determined that emissions from the remaining coke oven
facility emission points (pushing, quenching, battery stacks) do not
cause risks appreciably greater in significance that those for the
source category for which we are developing standards. Our risk
estimates for pushing, quenching, and battery stacks are contained in
the risk assessment document.
EPA has concluded that delaying any further reduction is unlikely
to result in disproportionate controls on other parts of a coke plant
should EPA ultimately determine that further controls are necessary to
provide an ample margin of safety. We therefore have determined that
current information does not justify the imposition of more stringent
controls to provide an ample margin of safety.
Comment: One commenter suggested that EPA should also consider, in
addition to the source category that is necessarily linked to the
source category at issue, the risks from emissions from co-located iron
and steel plants located within the same facility boundaries as the
coking operations. Two of the four coke oven facilities affected by
today's final rule amendments (AK Steel in Ashland, KY; and AK Steel in
Middletown, OH) have integrated iron and steel plants co-located with
their coking operations within their facility boundaries and under
their control.
Response: EPA does not believe it is appropriate to impose a
restriction on all sources within a source category (here, the coke
oven emission points at issue in this rule) based on the fact that half
of the sources are co-located with a distinct source. The risk to
public health from integrated iron and steel plants--sources which are
not necessarily co-located with coke ovens--should be addressed in the
residual risk determination for that source category. Nevertheless, EPA
did assess the impact that emissions from co-located integrated iron
and steel plants have on their facilitywide risk estimates. The
integrated iron and steel plants are located fairly far from the coking
operations at the two facilities where these two source categories are
present at a common site. At Middletown, the iron and steel plant is
located approximately 0.5 miles northeast of the coking operations. At
Ashland, the iron and steel plant is located approximately 0.9 miles
south of the coking operations. EPA's screening analysis indicates that
the contribution of iron and steel emissions to the MIR posed by the
coke oven sources is negligible.\16\ The MIR due to coking operations
occurs to the west of the coking operation at the Middletown facility,
and to the northwest of the coking operation at the Ashland facility.
At both facilities the MIR is influenced by the proximity of the nearby
population rather than by the primary wind direction, which is from the
west/southwest. Stated simply, the iron and steel plants are located in
such a way as to have only a very limited effect on those individuals
who are most exposed to emissions from the coking operations. In fact,
a reasonable rough estimate of the potential effect of integrated iron
and steel plants on the MIR is less than 2 percent for both facilities.
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\16\ Even if a screening analysis suggested an important
contribution from these sources, EPA would still need to consider
more detailed assessments of sources and facilities with the highest
risks. For example, in this screening analysis, EPA has treated iron
and steel emissions as emanating from a single point (at a specific
stack height). In a more detailed analysis, EPA would represent the
actual plant configuration reflecting the disparate location of
emission points and stack heights.
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Comment: Three commenters contended that the proposed amendments do
not meet the requirements of section 112(f) or congressional intent
because they do not protect the public health with an ample margin of
safety. The proposed amendments would reduce risk from charging, doors,
and topside leaks by only a small amount (from 200 in a million to 180
in a million) and leave 200,000 people still exposed to risks greater
than 1 in a million. One commenter said these risk estimates are ``in
tension'' with EPA's general goals to protect the greatest number of
people possible to a risk no higher than 1 in a million and to limit
the risk to a person living near a plant to a risk no higher than 1 in
10,000.
Response: As noted earlier, we do not consider the 1 in a million
MIR level as a ``bright line'' mandated level of protection for
establishing residual risk standards. The final rule amendments will
reduce the excess lifetime cancer risks for an estimated additional
200,000 people to less than 1 in a million, a goal that is not ``in
tension'' with our general goal of protecting the greatest number of
people possible to risks no higher than 1 in a million. In determining
the ample margin of safety (i.e., the level of the standard), health
risk is one factor that we must consider, along with other factors such
as cost and technological feasibility. Balancing these and other
factors with the ability to achieve meaningful risk reduction benefits
is a critical component of the residual risk rulemaking process. We
considered reducing risks further but concluded that the technology
required would be cost prohibitive for this industry and therefore
undesirable.
3. Scope of the Risk Analysis
Comment: The EPA's proposal did not contain any information on if
or how the agency assessed the risks from acute exposure to coke oven
emissions or how the proposed standards would protect public health
with an ample margin of safety from such risks. The EPA ignored the
recommendation from one peer reviewer on the need to justify no
consideration of the health effects from acute exposure.
Response: Risks from acute exposure are of greatest concern when
excess emissions occur and cause a peak or spike in ambient
concentrations of a pollutant. Coking is a continuous operation (i.e.,
the coke oven battery is operated continuously and is seldom shut down,
other than for a major rebuild or extensive repairs, because the
cooling during shutdown could damage oven walls). The ovens in a
battery are in various stages of operation such that any emission
fluctuations would be caught in the highly buoyant plume which rises
continually above the batteries. From a toxicological perspective,
references values derived for acute exposure assessment are higher
concentrations than chronic reference values. Consequently, for
situations, such as this, where there are not short periods of higher
exposure levels, the chronic assessment will be controlling. In this
assessment, no significant chronic non-cancer effects were identified,
therefore, no acute effects would be expected.
Comment: The EPA must assess exposure through eating food in which
toxics have accumulated or bioaccumulated, drinking contaminated water,
and dermal exposure through contaminated soil. And, while EPA
considered fish consumption at recreational levels, it did not consider
[[Page 20002]]
risks to subsistence fishing population, including those on the Great
Lakes and poor people in urban areas. Mercury, dioxins, lead, and PAH
are examples of other toxics released from coke ovens whose primary
risks are from non-inhalation pathways. The EPA must reassess the risk
and include dietary pathways from all of the relevant pollutants.
Another commenter recommended that EPA improve its multipathway risk
assessment methods.
The commenter stated that EPA admitted that its generic
environmental analysis was not intended to be used to predict specific
types of effects to individuals, species, populations, or communities
or to the structure and function of the ecosystem. According to one
commenter, EPA's failure to consider any impact on any individual
species contravenes the CAA. Another commenter recommended that EPA
develop criteria for refined ecological assessments that meet the
statutory specifications.
Response: The multipathway assessment used for this analysis was
based on the multipathway assessment initially used for a secondary
lead smelters case study and was refined through the use of EPA's most
current multipathway guidance. These include, for example, EPA's Office
of Solid Waste's peer-reviewed ``Human Health Risk Assessment Protocol
for Hazardous Waste Combustion Facilities'' \17\ which provided overall
guidance and chemical-specific values for bioaccumulative and
persistent HAP.
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\17\ Human Health Risk Assessment Protocol for Hazardous Waste
Combustion Facilities, Vol. 1 (peer review draft), U.S.
Environmental Protection Agency, Office of Solic Waste and Emergency
Response. EPA 530-D-98-001A. 1998.
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The HAP included in the analysis were selected using the procedures
described in the risk assessment document and parallels the selection
methodology described in our recently released ``Air Toxics Risk
Assessment Reference Library.'' \18\ Additionally, we only included the
HAP for which we had sufficient information to suggest that the HAP
were emitted from the sources which are the focus of these final rule
amendments and for which emissions could be estimated. The air toxics
included in this assessment were a group of PAH and lead. The final
rule amendments will reduce the amount of these emissions from coke
ovens. Mercury would ordinarily be included in the list of persistent,
bioaccumulative, and toxic (PBT) HAP to be assessed, but as discussed
in the risk assessment document and in section III.B.4 of this
preamble, mercury emissions were very low for this source category,
primarily because volatile compounds like mercury are captured and
removed in the by-product recovery plant.
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\18\ Air Toxics Risk Assessment Reference Library. U.S.
Environmental Protection Agency, Office of Air Quality Planning and
Standards. Vol. I: Technical Resource Manual, EPA 453-K-04-001A.
Vol. II: Facility-Specific Assessment. EPA 453-K-04-001B. April
2004.
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Multiple routes of exposure were assessed in the multipathway
assessment including both inhalation and ingestion of contaminated
food, soil, and drinking water. A mixture of best-estimate central
tendency and health-protective assumptions were used in order to be
health-protective for both adults and children, but also to estimate
risks that were not beyond the level of plausibility. This assessment
uses a ``farmer/recreational fisher'' scenario. In the scenario, the
farmer/recreational fisher was located at the point of the maximum
impact to agricultural land near each of the facilities, and our
assessment included the consumption of all types of home-produced
fruit, vegetables, beef, pork, and dairy products, as well as locally-
caught fish. The pathways included in this assessment were inhalation,
soil ingestion, produce ingestion, fish ingestion, drinking water
ingestion, and breast milk ingestion for infants. The farmer was
assumed to consume locally-caught fish at the rate of a recreational
fisher, but both central-tendency and high-end consumption rates based
on values from the ``Exposure Factors Handbook'' were included in the
analysis to increase confidence that individuals that may have higher
consumption would be protected. Risks were estimated using the health-
protective assumption of lifetime continuous exposures.
The screening-level ecological risk assessment used for this
analysis used the same methods as the secondary lead smelters case
study to estimate HAP media concentrations and to develop protective
screening-level ecological toxicological dose-response values. This
screening-level assessment was designed to identify and further
evaluate HAP that pose a potential ecological risk and to remove from
the analysis those HAP that did not pose such risks. In order to feel
confident that this assessment considered threatened and endangered
species, this analysis intentionally used assumptions that, overall,
tend to overestimate risks. These assumptions include the following:
Choice of ecologic receptor. This assessment evaluated the species
from a broader list of species (sediment dwellers, including aquatic
sediment dwellers), soil dwellers, aquatic life, air and soil dwelling
plants, various representative types of mammals; see risk assessment
document, Table 3-8) that are considered widely distributed and provide
a representative range of body sizes and diets. In cases where multiple
species from which to choose were available for a particular exposure
scenario (e.g., a terrestrial herbivore), EPA evaluated the species
with the lowest benchmark (i.e., the most sensitive species) for this
assessment.
Choice of risk metric. All species in the assessment are evaluated
against the No Observable Adverse Effect Level (NOAEL). As the name
indicates, this is a level of exposure below which one would not expect
to see any adverse effects. Since relatively few animal or plant
studies have determined these safe levels of exposure over an entire
lifetime or several generations, a NOAEL for chronic exposures to a
particular chemical must be estimated from toxicity studies of the same
chemical conducted on a different species of wildlife or on laboratory
animals. In these cases, to ensure that species survival is accounted
for and to be more health-protective, whenever possible we used the
NOAEL from studies in which more sensitive endpoints such as
reproductive and developmental toxicity and reduced survival were the
outcome as opposed to direct mortality. To evaluate potential risk to
aquatic life, we used as a comparison benchmark EPA's Water Quality
Criteria (adopted pursuant to section 304(a) of the Clean Water Act)
which are used by States (and authorized Tribes) in adopting water
quality standards for the protection of human health, aquatic life, and
aquatic-dependent wildlife.
Further protective assumptions related to exposure. We made the
additional protective assumption that terrestrial and aquatic species
reside and therefore forage and drink exclusively in the area where the
maximum HAP concentration is estimated. We further assumed that any HAP
to which they are exposed is 100 percent bioavailable.
Protective assumptions related to emission levels. The ambient
concentrations estimated for each terrestrial wildlife exposure
scenario were derived from the modeling done for the human health
assessment, and so contains the same protective assumption that
emissions are constantly at the level allowed under the 1993 national
emission standards. We know that actual emissions are less (69 FR
48496-48497) and, therefore, exposure and risk would also be less.
[[Page 20003]]
We also assumed that the emissions from the coke facility with the
highest emissions were representative of the emissions that might be
anticipated from the other coke facilities subject to these final rule
amendments.
Even using these highly protective assumptions, modeled
concentrations remain under the NOAEL for each species, in most
instances by many orders of magnitude. For risks to aquatic life,
modeled risks for each HAP again remained an order of magnitude lower
than the Water Quality Criteria levels.
We recognize that there are data limitations for these analyses
that indicate a need for further refinement and development of
multipathway and ecological risk assessment tools. The multipathway and
ecological reference methodology described in the ``Air Toxics Risk
Assessment Reference Library'' (see footnote 18) will be revised. While
these more complex tools were not needed in the coke oven residual risk
assessment (because no screening-level ecological effects were seen
even when the assessment included many protective assumptions), they
are important and may play a larger role in future residual risk
assessments, and we will be developing future guidance.
Comment: One commenter said that because HAP emitted by coke oven
batteries is persistent and bioaccumulative, EPA was obliged to consult
with the Fish and Wildlife Service as required by the Endangered
Species Act. The commenter further stated that such consultation should
consider information in EPA's Great Waters Report,\19\ issued pursuant
to CAA section 112(m), that species are affected by deposition of HAP
emitted by sources located in areas near the Great Lakes.
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\19\ Deposition of Air Pollutants to the Great Waters: Third
Report to Congress. U.S. Environmental Protection Agency, Office of
Air Quality Planning and Standards. EPA-453/R-00-005. June 2000.
---------------------------------------------------------------------------
Response: Given the many protective assumptions of this assessment,
we remain confident that if an individual member of a species is
protected, as shown in our assessment, then the population as a whole
would be protected. EPA has not identified any evidence of effect on
critical habitat, given that our analysis shows no adverse effect on
the terrestrial or aquatic life evaluated. Since our results showed no
screening-level ecological effects, we do not believe that there is an
effect on threatened or endangered species or on their critical habitat
within the meaning of 50 CFR 402.14(a). Because of these results, EPA
concluded a consultation with the Fish and Wildlife Service is not
necessary. In this regard, we again reviewed the Great Waters Report
mentioned in the public comment. There is no mention of threatened or
endangered species in our ``Great Waters Reports to Congress.'' The
risk assessment conducted in this rulemaking is consistent with the
recommendations in the report to conduct assessments of the potential
impacts of the emissions and deposition of PBT HAP on ecological
systems, including water bodies.
Comment: One commenter disagreed that there is no information that
would allow EPA to assess the risk to children from coke oven
emissions. All of the individual constituents in coke oven emissions
have been studied in children, and children have been found to be more
susceptible than adults to each of the toxic components. The commenter
provided extensive information on why children's airways are more
susceptible to airborne carcinogens and provided health effects
information on PM, PAH, and mercury. The commenter stated that an
adequate risk assessment must include the acute and chronic respiratory
effects of PM; cancer, reproductive, and developmental effects of PAH;
and the neurotoxic effects of mercury on children.
Response: The commenter is mistaken; we did not state in the
proposal preamble or risk assessment document that we had no
information to assess the risk to children. We acknowledge that
population subgroups, including children, may have the potential for
risk greater than the general population due to greater body burden
and/or greater susceptibility to the toxicant. Our risk assessment
accounts for these greater body burdens. For certain exposures (e.g.,
lead), children were explicitly assessed, while in other cases (e.g.,
inhalation pathway) lifetime (rather than simply childhood) exposure
was assumed, which would tend to yield higher estimates of risks.
In the ingestion pathway assessment, risks to children from lead, a
pollutant with known hazard to children from the ingestion pathway,
were explicitly assessed and presented. As part of the multipathway
screening analysis (see appendix A of the risk assessment document),
blood lead concentrations were predicted for estimates of cumulative
lead exposure of children aged less than or equal to 7 years old. As
described in the risk assessment document, the predicted blood lead
concentrations all fell below the Center for Disease Control level of
10 micrograms per deciliter ([mu]g/dL), an indicator of elevated blood
concentration. The maximum level estimated was 0.1 [mu]g/dL.
While risks to children from other pollutants were not separately
assessed for the ingestion pathway (only central tendency and high end
adult values were estimated), we do not consider the ingestion pathway
to be the driver or highest risk pathway. The amount by which exposure
factors generally increase the resultant cancer risk of children (less
than 18 years of age) over a similar exposure duration for adults is
less than a factor of three. Review of the ingestion pathway cancer
risk estimates for the adult exposures indicates that ingestion pathway
cancer risk estimates for a similar duration of children's exposure
would still fall below the inhalation pathway cancer risks. Given that
the highest cumulative HI for the adult exposures was on the order of
0.001, a separate estimate for children's ingestion exposure while
expected to be a slightly higher value, would still fall well below an
HI of concern. Consequently, the major focus for the risk assessment
was placed on the inhalation analysis.
In the inhalation pathway assessment, the exposure assessment
described the maximum exposure of residents near coke oven emissions.
The exposed population was presumed to be exposed to airborne
concentrations at their residence continuously 24 hours per day for a
full lifetime. No greater inhalation exposure to neighboring residents
would be feasible.
With regard to children's potentially greater susceptibility to the
toxicants present in coke oven emissions, the assessment relied on
Agency dose-response values which have been developed for all subgroups
of the general population, including children. For example, a recent
review \20\ of the chronic reference value process concluded that the
Agency's RfC and RfD derivation processes adequately considered
potential susceptibility of different subgroups with specific
consideration of children, such that the resultant RfC/RfD values
pertain to the full human population ``including sensitive subgroups,''
a phrase which is inclusive of childhood.
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\20\ A Review of the Reference Dose and Reference Concentration
Process. U.S. Environmental Protection Agency. Risk Assessment
Forum. EPA/630/P-02/002F. December 2002.
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With regard to cancer dose-response values, our revised cancer
guidelines and new supplemental guidance recommend applying default
adjustment factors to account for exposures occurring during early-life
exposure to
[[Page 20004]]
those chemicals thought to cause cancer via a mutagenic mode of action.
The effect of these guidelines on the risk assessment is discussed in
detail in section I of this preamble.
In summary, our dose-response values have been developed via
methodology that is intended to provide either a plausible upper-bound
potency factor or an exposure with which there is likely no appreciable
risk of adverse effects during a lifetime considering all population
subgroups, including children.
Comment: One commenter asked EPA to faithfully apply the standards
for ``influential scientific risk assessment information'' to the risk
assessments that underlie residual risk rules. The commenter also asked
EPA to implement and fully adhere to the Agency's Information Quality
Guidelines so that the data and analysis will be sound and well
represented to decision makers and the public. The commenter stated
that EPA should aggressively pursue reform of its risk assessment
practices in response to the advice of its key advisors, should take
steps to eliminate conservative assumptions embedded in its risk
estimation procedures, and should begin work on a recommended
alternative approach that will produce more accurate and realistic
estimates.
Response: In compliance with the Agency's Information Quality
Guidelines, specifically as they apply to influential scientific risk
assessments, we have taken significant steps to ensure that the
substance of the information in our risk assessments supporting the
coke ovens residual risk rule is accurate, reliable, and unbiased. To
this end, we have used the best available science and supporting
studies as well as data collected by the best available methods. For
example, many of the components of our risk assessments (air quality
and exposure models, toxicity values, methods for estimating emissions,
etc.) have undergone independent scientific peer review on their own or
as applied in specific case studies. In addition, we have subjected the
final report on the coke ovens risk assessments to a peer review by
experts external to the Agency through a letter review process
administered by a third party. Through this peer review, we have
endeavored to ensure that the presentation of information on human
health and environmental risks is comprehensive, informative, and
understandable. The final risk assessment document, revised per the
peer review, as well as the peer reviewers' comments and our responses
to them, have been made available to the public in the docket for this
rulemaking.
Comment: Two commenters stated that the risk assessment was
inconsistent with the Agency's Information Quality Guidelines because
EPA did not use newer, peer-reviewed health effects data (i.e., using
the 1984 IRIS value for coke oven emissions instead of newer, peer-
reviewed health effects data submitted by Sciences International).
Response: The commenters pointed to a single study \21\ which
interpreted only a portion of the health effects data available on coke
oven emissions and was subjected to a scientific journal peer review.
While such a study would not ordinarily be considered comprehensive
enough or broadly-vetted enough to serve as a sole basis for risk
estimates in this type of assessment (and indeed to do so could raise
Data Quality Guideline issues), we did address the use of the
alternately-derived cancer potency in our risk assessment (i.e.,
compared risk estimates reported in the IRIS and the newer values).
Since the use of this value did not substantially affect the level of
estimated risks or the associated risk-based decision, EPA undertook no
further evaluation of these health effects data. In the future,
however, newer assessments of health effects can be readily considered
in the residual risk program if they are sufficiently comprehensive and
vetted through an appropriate scientific peer review process.
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\21\ Moolgavkar, S., et al. ``Estimation of Unit Risk for Coke
Oven Emissions.'' Risk Analysis, vol. 18, no. 6, pages 813-825.
1998.
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Comment: One commenter said the risk assessment was inconsistent
with the Agency's Information Quality Guidelines because EPA did not
provide central tendency estimates (i.e., results were restricted
primarily to upper bound estimates).
Response: As pointed out by the commenter, we addressed the central
tendency requirements of the Information Quality Guidelines in a
limited way in the risk assessment that supports this rule. As noted
above, the upper-bound potency value that is presented in IRIS is
routinely characterized using the standard descriptor for the cancer
potency (``upper bound''), by saying that the upper bound is not likely
to underestimate risks, that true risks are likely to be less, and
that, for some individuals, risk may be zero. As described in the
Information Quality Guidelines and reiterated in the recently published
cancer guidelines, we will continue to develop and present to the
extent practicable an appropriate central estimate and appropriate
lower and upper-bound estimates of cancer potency. Development of new
methods or estimates is a process that will require independent peer
review.
We also understand that most people have daily activities that take
them to areas where exposure concentrations are different and move to
new residences periodically. Both of these behaviors may tend to lower
lifetime exposures to coke oven emissions (i.e., lower than our current
assumption of 70-year exposure duration), and therefore lower
individual risk attributable to coke ovens. In the proposal preamble
(69 FR 48347), we presented an alternative estimate of an individual
risk level adjusted to reflect the national average residency time of
12 years for comparison with the results from our 70-year exposure
assumption. This change in assumption would result in a lowering of
risk by approximately six-fold. It is important to note that if the
cancer dose-response is reasonably linear with dose at environmental
exposure levels, estimated individual risk attributable coke oven
emission is lower for those living fewer years in the affected area,
but estimates of total population incidence are not affected if the
overall population remains stable (assuming people moving out are
replaced by people moving in). Taking this into consideration and to
provide better metrics by which to assess population risks in the
future, we are currently developing a methodology that may allow us to
consider a variety of parameters that could affect risk to populations,
not just to the individual, that live in the vicinity of facilities.
Other factors (e.g., emigration out of and immigration into the
``exposure area,'' social factors that affect population mobility, and
census block size) may also influence the mobility of populations and
therefore, affect estimates of exposure and risk. As part of this
effort, we are also investigating whether similar probabilistic
techniques can be applied to the MIR to develop meaningful alternative
metrics of individual risk. While this methodology is currently under
development with subsequent evaluation and peer review to follow, we
did not have sufficient information to apply any of these factors to
these coke oven facilities.
Comment: One commenter said that the risk assessment was
inconsistent with the Agency's Information Quality Guidelines because
EPA's reasoning for not conducting a more complete probability analysis
was not sufficient.
Response: We stated in our proposal that we ``considered the needs
and
[[Page 20005]]
scope of the assessment'' before deciding whether to do a more refined
population analysis and concluded that this ``level of refinement was
not necessary * * * because the results of a probabilistic analysis are
unlikely to affect the proposed risk management decisions.'' Our
decision was that risks to the population at the level of the standard
we proposed met the required ample margin of safety determination.
Refining the population risk distribution by considering factors such
as population mobility in the analysis would not change that decision,
only refine the underlying results on which that determination was
made. Therefore, we did not believe that the additional expenditure of
time and resources to do that analysis was warranted. Also, in making
this decision, we believe we are meeting the requirements of the
Information Quality Guidelines by providing information that is
accurate, clear, complete, and unbiased.
4. Mercury Standards
Comment: One commenter contended that EPA's proposal was unlawful
because it excluded controls for mercury. The commenter argued that EPA
is required to establish emission standards for each HAP and that
section 112(f)(2) requires EPA to consider every HAP that a category
emits to ensure that the residual risk standards adequately protect
public health and the environment. The commenter cited 2002 Toxic
Release Inventory (TRI) data that show AK Steel (Ashland, KY) emits 27
pounds of mercury and that Indiana Harbor Coke reported 650 pounds of
mercury emissions.
Another commenter questioned why mercury and other metals were
excluded from door leak emission estimates. According to the commenter,
mercury is highly volatile and would be expected to occur in emissions
or leaks from any part of the process. The commenter also requested
that EPA explain why mercury is missing from the list of metals that
were monitored in appendix C of the risk assessment document. While
mercury is listed as a component of coke oven emissions in one table in
appendix C, it is unclear if or how EPA used this mercury emission
factor in its analyses.
Response: Our research indicates that most of the mercury that is
volatilized from the coal during the coking process at by-product coke
batteries is concentrated in the tar when the gas is processed in the
by-product recovery plant.\22\ The vast majority of the volatiles
distilled from the coal are collected and processed to recover by-
products. However, the commenter is correct in that emission tests have
detected mercury emissions from coke ovens. For example, small
quantities of coke oven gas may escape through leaks on doors, lids,
and offtakes. The emission factor for mercury in Table C-23 of the risk
assessment document shows that trace amounts of mercury have been
detected in raw coke oven gas with a ratio to benzene soluble organics
(BSO) of 2 x 10-7. Applying this ratio to the by-product
coke plant with the highest BSO emissions (AK Steel in Ashland,
Kentucky in Table C-5) gives an estimate of 0.002 lb/yr of mercury
emissions from leaks. These low levels of mercury emissions show that
mercury emissions from charging, doors, lids, and offtakes do not
contribute significantly to the health effects posed by coke oven
emissions from by-product coke oven batteries.
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\22\ Fisher, R. ``Progress in Pollution Abatement in European
Cokemaking Industry''. Ironmaking and Steelmaking. vol. 19, no. 6.,
1992. Pages 449-456.
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The estimate of 27 lb/yr for the AK Steel by-product coke plant was
not based on measurements. The company used an emission factor that was
developed from a 1991 paper published in Germany. However, it is not in
EPA's AP-42 compilation of emission factors, we have been unable to
determine its basis and the type of coke battery it was developed for,
and we cannot assess its applicability to U.S. coke batteries. We
expect more and better data to become available in the future, and
these data will be considered when the residual risk is assessed within
8 years of the promulgation of the 2003 NESHAP for pushing, quenching,
and battery stacks.
We investigated the TRI reporting and found that most mercury
emissions from nonrecovery batteries come from the battery stack rather
than leaks on the battery, which are the subject of these final rule
amendments. In addition, our examination of the TRI data reveals that
the emissions reported by the nonrecovery coke plant (Indiana Harbor
Coke) were overestimated and are being corrected. The plant had used an
emission factor developed from testing an uncontrolled battery stack at
another nonrecovery coke plant. Subsequently the company performed
sampling of its own stack and found that its actual mercury emissions
from the battery stack were 182 pounds per year (lb/yr). Mercury is
emitted from the battery stack on nonrecovery batteries because there
is no recovery of the by-products distilled from the coal; however,
some mercury in the particulate phase is captured by the baghouse that
is used to control emissions. These test data will be considered by EPA
when the residual risk is evaluated for the 2003 NESHAP for pushing,
quenching, and battery stacks.
Finally, the commenter's assumption that mercury emissions from
batteries are not controlled by the standard is not correct. Mercury
emissions from leaks on the battery are controlled and regulated the
same way as the many other volatile pollutants in raw coke oven gas.
The ovens are inspected for leaks, and work practices are used to stop
leaks and contain potential emissions within the gas collection system.
Standards are in place to limit emissions from charging, doors, lids,
and offtakes, and these standards also effectively limit emissions of
mercury (as a volatile) and other pollutants that might otherwise occur
if these standards were not in place.
5. Consider Other HAP
Comment: Three commenters contended that the risk assessment is
deficient because it did not adequately consider the risks associated
with emissions of all HAP. One commenter stated that the 13 PBT
constituents chosen for cancer and noncancer risk analysis inexplicably
excluded both mercury and arsenic and that chromium and mercury were
left out of the inhalation risk analysis. Other commenters state that
the risk assessment must cover the carcinogenic effects of naphthalene
and 1, 3-butadiene; coke and coal dust emissions from uncovered
sources; and hydrogen chloride (HCl) emissions.
Response: As stated in the risk assessment document and discussed
in an earlier response, inhalation cancer risk from the sources covered
by this rule was estimated using the HAP ``coke oven emissions,'' for
which we have developed a cancer URE. It is not necessary to consider
the presence of each constituent of the mixture of coke oven emissions
thought to be carcinogens since their contribution to cancer risk is
subsumed into the risk from the mixture. Section 112(f)(6) contemplates
such an approach, as we noted in our ``Residual Risk Report to
Congress''. In conducting the non-cancer inhalation risk assessment, we
did use information (toxicity and emissions) for each constituent
because there are inadequate data for a non-cancer assessment of ``coke
oven emissions''. In general, we considered the risk due to individual
constituents when assessing non-cancer or non-inhalation risks, when
assessing risk
[[Page 20006]]
from emission points where the composition of the mixture may be
different, (e.g., after the pushing emission control device), or when
the screening level risk assessment was done. The URE for coke oven
emissions was used for all identified process operations covered under
the 1993 national emission standards for charging, doors, lids, and
offtakes and for two emission sources (pushing and quenching) covered
by the 2003 NESHAP for pushing, quenching, and battery stacks. For the
remaining emission sources which do not emit coke oven emissions (e.g.,
the battery stack and the pushing emission control device), we selected
constituents that had toxicity values and emissions information from
these emission points in order to conduct an inhalation risk assessment
or a non-inhalation, multipathway assessment. Results for the cancer
and non-cancer risk assessment may be found in Tables A-2 through A-9
of the risk assessment document. Multipathway results for those HAP
selected based on our selection criteria may be found in Tables A-31
through A-34.
The risk assessment did not include estimates of risk for
pollutants such as ammonia, hydrogen sulfide, coal dust, and coke dust
because they are not listed as HAP under section 112(b). We do not read
section 112(f) as requiring consideration of criteria pollutants and
other pollutants which are not HAP. Section 112(f) is the corollary of
section 112(d), which of course is directed to control of HAP. It also
essentially adopts the pre-1990 standard for control of HAP (see, e.g.,
Legislative History page 876), which dealt exclusively with control of
air toxics. We believe that given this linkage and prior history,
Congress would have been explicit had it intended for us to
dramatically change course and address risks posed by non-HAP
pollutants under section 112(f).
At the time the risk assessment was performed, the cancer URE for
naphthalene was not available from the CARB, a source of toxicity
information we use if IRIS does not have a benchmark value. Based on
the emissions information for this HAP described in the risk assessment
document (i.e., depending on the source, emissions of about 10 to 30
times less than the coke oven emission estimates and a cancer URE that
is 18 times less potent than the URE for coke oven emissions),
naphthalene is not likely to add significantly to the cancer risk
estimated for this source or to have an effect on the decision.
The commenters also asked why we did not include chromium, a
carcinogen, in the mix of carcinogens we assessed. Unlike naphthalene,
hexavalent chromium does have a URE on IRIS, but information we
received indicated that hexavalent chromium emissions from this process
are unlikely due to the atomic state for this pollutant being highly
oxidized and not conducive for forming in a chemical reducing
atmosphere such as a coke oven. Thus, the emissions would likely be the
trivalent chromium, which has not been shown to be carcinogenic.
Another way to look at this issue is to assume a fixed percentage of
total chromium is hexavalent. For example, applying the health-
protective assumption we used in our Report to Congress on Electric
Utilities \23\ (that hexavalent chromium comprised 11 percent of the
total chromium emissions) would result in a MIR level of approximately
1 in a million. Therefore, it is unlikely that any chromium emissions
from the sources considered in this source category would have any
significant impact on the estimated total cancer risk.
---------------------------------------------------------------------------
\23\ Table 6-1, Summary of High-End Risk Estimates from Chronic
Inhalation Exposure of HAP for 424 U.S. Coal-Fired Utilities Based
on the Baseline Inhalation Risk Assessment. Study of Hazardous Air
Pollutant Emissions from Electric Utility Steam Generating Units--
Final Report to Congress. U.S. Environmental Protection Agency,
Office of Air Quality Planning and Standards. Vol. 1. EPA 453/R-98-
004a, February 1998, page 6-3.
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The URE for arsenic was applied to the battery stack and the
pushing emission control device. These emission points are the only
ones for which we would use arsenic's specific URE in the risk
calculations because the URE for coke oven emissions accounts for the
cancer risk from other emission points. The highest MIR for arsenic
from these sources was less than 1 in a million.
Table 3-2 in the risk assessment document provides a detailed
listing of non-cancer risks at the facility level, which includes
estimates for arsenic and hydrogen chloride. The table shows that the
maximum HQ for arsenic was 0.3 and was 0.00002 for hydrogen chloride.
The non-cancer risks for chromium assuming all emissions are hexavalent
would provide a HQ value equal to 0.01, still significantly below a
value of 1. We believe, moreover, that this significantly overestimates
the risk.
6. Emission Estimates
Comment: One commenter contended that the emission estimates
overstated HAP emissions and discussed problems with EPA's emission
factors and calculations:
Emissions from coke oven door leaks were overstated
because EPA did not use the exponential model developed in the early
1980s, overestimated the number of leaks visible from the bench and not
the yard, and included emissions from doors with no visible leaks.
The EPA did not adequately justify estimates of the
frequency and severity of green pushes and understated the capture
efficiency of pushing emission control devices. Benzene emissions from
pushing are also overestimated.
Emissions from battery stacks were overstated because of
the extrapolation to higher opacities and the use of questionable test
data for benzene.
Emissions from by-product recovery plant process equipment
were overstated because of the use of default values rather than a
site-specific approach.
Response: The issue of the exponential model developed in the early
1980s has been discussed in great detail in the background document for
AP-42. Relevant excerpts are summarized below:
The theoretical model was based solely on the self-sealing
mechanism and does not account for the current widespread use of
supplementary sealants, new door designs, and adjusting the door seal
to stop leaks.
The exponential model is not applicable below 10 percent
leaking doors, and current control levels are well below 10 percent.
The exponential model underestimates emissions when using
an arithmetic annual average for percent leaking doors (an exponential
averaging of percent leaking doors must be used).
The exponential model estimates zero emissions when no
door leaks are visible from the yard, but we now know there are door
leaks that cannot be seen from the yard.
More recent sampling and analysis of door leaks of various
sizes have provided real data on mass emission rates (as opposed to a
theoretical and unvalidated model) and form the basis for current
estimates.
We used a value of 6 percent leaking doors for doors visible from
the bench but not visible from the yard, and the commenter recommended
a value of 3 percent based on more recent data. The value of 6 percent
is the value recommended in AP-42 and is codified in the 1993 national
emission standards (doors inspected from the bench under a cokeside
shed are given a correction factor of 6 percent leaking to estimate the
``yard'' equivalent). We acknowledge that the difference between the
number of door leaks observed from the bench and from the yard probably
varies from battery to battery and at the same battery
[[Page 20007]]
over time. The commenter also thought the leak rate assigned to the
small leaks visible only from the bench was too high. However, this
rate was based on the smallest visible leak grade (a grade of 0.5,
which is described as a leak that is barely visible and may not be seen
from the yard), and we cannot arbitrarily reduce it by 75 percent as
the commenter suggested. We included the variability associated with
leaks visible only from the bench and the variability in leak rates in
our uncertainty analysis. We think that analysis places reasonable
bounds on our emission estimates.
We did not include emissions from leaks that were not visible in
the emission estimates used in the risk assessment. The potential for
emissions from leaks that are not visible was factored into the
uncertainty analysis and indicated that actual emissions could be
higher than we estimated. However, we also acknowledged that emissions
could be lower than we estimated.
The frequency and severity of green pushes used in the risk
analysis (not part of the source category at issue) are explained in
detail in the background information document for pushing, quenching,
and battery stacks (Docket Item OAR-2003-0051-0085). The document
estimates the frequency of green pushes once the 2003 NESHAP for
pushing, quenching, and battery stacks is fully implemented.
Admittedly, better estimates can be made in the future based on actual
performance data generated after the compliance date of the final rule
amendments. The projections of methylene chloride soluble organics
(MCSO) emissions are based on the performance of the best-performing
batteries that were used to develop the MACT floor. Data for 3,700
observations from 15 batteries that were the best performers had only
one severely green push with an opacity exceeding 50 percent. Two other
batteries that will have to improve their performance to meet the
standard had 2 percent green pushes. A best estimate of 0.5 percent
severely green pushes was judged likely to be an overestimate once all
batteries were subject to the standard. For moderately green pushes in
the range of 30 to 50 percent opacity, the best-controlled batteries
averaged 0 percent to 5 percent of the pushes in this range (13 out of
3,700 observations). An upper-bound estimate of 5 percent was used for
moderately green pushes.
A capture efficiency of 10 percent for a severely green push is
based on observations that most of the emissions escape capture during
pushing and the fact that heavy emissions (some observed at 90 to 100
percent opacity) continue during travel to the quench tower when there
is no hood to capture any of the emissions. During a push that is not
green, some emissions escape capture and again none of the emissions
during travel are captured; consequently, an estimate of 90 percent
capture seems reasonable for that case. A best estimate of 40 percent
capture was used for moderately green pushes.
The benzene emission factor used for pushing is 2.4 x
10-\4\ lb/ton of coke based on three runs at one plant
producing blast furnace coke. The commenter submitted data from a plant
producing foundry coke that showed benzene emissions were less than 9 x
10-\5\ lb/ton, a factor of about two lower. The amount of
benzene emitted from pushing will depend on how green the coke is, and
a push that is fully coked would have very little benzene. It is
difficult to determine which test is most representative, and the
benzene emissions can be expected to be quite variable from push to
push. However, even with the higher emission factor, benzene emissions
from pushing were not significant in the risk analysis (e.g., less than
100 lb/yr).
The commenter stated that the extrapolation of test results for
battery stacks based on opacity is unsupportable because there is no
established relationship between opacity and HAP. As explained in the
background document, the battery stack that was tested had a very low
opacity (1.7 percent), but the 2003 NESHAP are expected to achieve an
average opacity of 5 percent for battery stacks. Consequently, applying
the test results for this one battery to all other batteries to
estimate the emissions once the 2003 NESHAP become effective could
underestimate emissions. Although no correlation has been firmly
established between opacity and HAP, there is an established
relationship between opacity and mass concentration of particles. In
addition, sampling and analysis has shown that the PM in battery stack
emissions contains HAP, including organic PM and PAH. (These PAH are a
primary constituent of coke oven emissions, the primary HAP evaluated
in the risk assessment.) Consequently, battery stack emissions were
scaled from 1.7 to 5 percent opacity to avoid underestimating emissions
from other batteries once the standard is implemented.
The commenter stated that EPA used the results from the two highest
of four tests to estimate benzene emissions from battery stacks and
that using the average of all four tests would have resulted in
emissions that were 40 percent lower. The results for benzene in parts
per million (ppm) for the four tests were 0.1 to 0.2, 0.6 to 1.6, 1.8
to 4.1, and 2.6 to 3.2. One of the four tests is an order of magnitude
less than the others and appears to be an outlier. The average values
of the other three tests are 1, 3, and 3 ppm. We used a value of 3 ppm
because it is the statistical mode (most frequently occurring test
average), it is representative of two of the four tests, and this value
would not tend to underestimate emissions. Using the average value for
all four tests would have resulted in an emissions estimate 40 percent
lower than our original estimate. However, even if our original
estimate overestimates emissions, there were no significant adverse
health effects estimated for this source for benzene. In addition, EPA
will re-evaluate the emissions and risks from battery stacks within 8
years after the promulgation date of the MACT standard for pushing,
quenching, and battery stacks. At that time, the emission estimate will
be revised based on additional test data that become available.
Benzene emissions from process equipment in the by-product recovery
plant were estimated from AP-42 emission factors, site-specific
information on the processes, and their capacities. The commenter
recommended using EPA's TANKS model with detailed site-specific
information to estimate emissions because it would be more accurate and
emissions would be lower. However, the AP-42 emission factors that we
used have been widely accepted and used in other contexts, and they
account for sources that have controls in place. We did not have
detailed and verifiable information for the numerous site-specific
factors that would be needed to use the TANKS model. We agree with the
commenter that the use of TANKS is an acceptable alternative when such
details are available and the model is applicable to the emission point
of interest. However, there are some process vessels in the by-product
plant where the model is not applicable because it does not fully
account for the emission mechanism, such as tanks that are heated or
purged and have a vapor flow other than from working and breathing
losses, uncovered tanks, those for which there is no good estimate of
the vapor phase concentration, and condensers.
The commenter pointed out that we used site-specific monitoring
data to estimate benzene emissions from equipment leaks for all plants
except one (Tonawanda Coke) and that the emission factors applied to
this plant overestimated emissions. We requested
[[Page 20008]]
site-specific monitoring data from all plants to estimate emissions,
but we did not receive such information from Tonawanda Coke. We agree
that generally the site-specific approach provides emission estimates
lower than those from the default emission factors. Our emission
estimates were health protective, and even with a tendency to
overestimate benzene emissions from Tonawanda Coke, the estimated risk
from these benzene emissions is low.
C. Comments on Section 112(d)(6) Review Policy
1. Approach for Existing Sources
Comment: Eight commenters agreed that a new analysis of MACT floors
for existing sources is not part of the 8-year review requirement. As
EPA concluded, such periodic re-determination of the MACT floor would
effectively convert existing source requirements into new source
requirements. In support, one commenter pointed to the plain language
of CAA section 112(d)(6), the legislative history, similar review
requirements under sections 109 and 111, and the absence of
Congressional intent for new floor analyses.
Two commenters disagreed with EPA's conclusions. One commenter
explained that the MACT floor provisions in section 112(d)(3) give
meaning to the phrase ``emission standards promulgated under this
section'' in section 112(d)(6) so that EPA is obligated to do a new
floor analysis when revising the standards for existing sources. In
addition, EPA's argument (that omission of the term ``emission
limitation achieved'' suggests that no additional floor determination
is required) ignores the statutory text. There is no need to include
the floor language in section 112(d)(6) since section 112(d)(3) already
ensured that any existing source standard would meet the floor
requirements. The EPA's other argument (that additional floor analyses
would effectively convert existing source standards into new source
standards) is unreasonable and not necessarily true because EPA could
find that sources do not perform better than the floor level of
control. If facilities developed methods to reduce HAP emissions in the
previous 8 years, requiring all sources in the category to achieve
similar control would be consistent with Congressional intent under
section 112 and the specific direction given in section 112(d)(6).
Response: Section 112(d)(6) requires us to ``* * * review, and
revise as necessary (taking into account developments in practices,
processes, and control technologies), emission standards promulgated
under this section.'' The provision does not mandate that this review
be conducted in a single, unvarying manner, other than having to take
into account ``developments in practices, processes, and control
technologies.''
The commenter maintained that because of the reference to
``emission standards promulgated under this section,'' we are
necessarily required to repeat the section 112(d) standard development
process which includes re-determining MACT floors. A more natural
reading of the provision is that we are to review the section 112(d)
standards considering developments in practices, processes, and control
technologies. EPA may then, in its discretion, amend the standards if
the agency concludes such action is necessary. Indeed, we believe that
this is the meaning Congress intended, since section 112(d)(6)
originated in House and Senate Committee provisions that predated
introduction of the MACT floor language, and mirrors routine periodic
reevaluation requirements found in other statutory provisions requiring
technology-based standards. Moreover, we reiterate that there is no
indication that Congress intended for section 112(d)(6) to inexorably
force existing source standards progressively lower and lower in each
successive review cycle, the likely result of requiring successive
floor determinations (69 FR 48351).
We note that with respect to revision of standards for new sources,
the section 112(d)(6) analysis of practices, processes, and control
technologies, and costs and emission reductions associated with those
technologies (conducted as part of the determination of whether
different standards are necessary), may indicate that revised standards
for new sources are warranted. The final rule amendments do not adopt
different standards for new by-product batteries. New by-product
batteries would be required to meet zero leak standards for doors, lid,
and offtakes unless a new by-product technology (such as operation of
the ovens under negative pressure) is developed. The by-product battery
technology currently in use cannot achieve zero leaks; consequently,
new coke batteries would likely be nonrecovery batteries, which have
been the only type of new battery constructed in the past 20 years. We
are amending the charging limit for new nonrecovery batteries to
reflect new technical developments (69 FR 48351). These changes can be
readily incorporated at new sources with minimal cost.
2. Relationship Between Residual Risk Standards and Review Requirements
Comment: Six commenters stated that once EPA promulgates a standard
that provides an ample margin of safety, the review requirement under
section 112(d)(6) is satisfied. One commenter stated that Congress
intended the section 112(d)(6) review to update the underlying
technology-based standards irrespective of residual risk.
Response: We begin by noting ambiguity in the text and placement of
section 112(d)(6). The obligation to periodically review (and possibly
update) emissions standards applies to standards promulgated under
``this section.'' A possible reading of the word ``section'' is that
the periodic review obligation applies not only to emissions standards
adopted under section 112(d), but also to emissions standards adopted
under any other provision of section 112, including section 112(f)
(note that section 112(f)(2) is entitled ``emissions standards''). On
the other hand, section 112(d)(6) is placed in the context of section
112(d) generally, which deals only with technology based ``MACT''
standards. This placement could be construed as requiring the periodic
review obligation to only apply to emissions standards adopted under
section 112(d).
We resolve this ambiguity by concluding that section 112(d)(6)
should be interpreted as applying only to standards adopted under
section 112(d). This conclusion is based on several factors. First, all
of the other provisions of section 112(d) are specific to the
obligation to adopt technology standards. It would be inconsistent with
the structure of section 112(d) as a whole to conclude that section
112(d)(6) should be construed to apply more broadly than all of the
other companion provisions in section 112(d).
Second, it is natural to assume that the technology on which a
particular section 112(d) standard is based could evolve over time and
allow EPA, as appropriate, to update the standard to reflect the
evolving technology. Other text in section 112(d)(6) is clearly focused
on this possibility of technological innovation (``* * * taking into
account developments in practices, processes, and control technologies
* * *''). In contrast, the basic obligation under section 112(f) is to
make sure that public health risks due to emissions from a category or
subcategory provide an ample margin of safety. Technology (and the
possibility that technology will improve over time) remains relevant
under section 112(f), but only for the purpose of determining an
appropriate
[[Page 20009]]
ample margin of safety. Notably, technology is only one of many factors
that may be relevant in determining the ample margin of safety. Thus,
evolving technology--which is the clear focus of section 112(d)(6)--is
central to the purposes of section 112(d), while it is only one
consideration among many that may be relevant under section 112(f). If
Congress had intended section 112(d)(6) to encompass section 112(f), a
broader range of considerations would logically have been mandated for
the periodic review.
Finally, we believe our interpretation is supported by legislative
history. The genesis of section 112(d)(6) can be traced to earlier
bills passed by the Senate and the House, all of which made it clear
that the periodic review applied to section 112(d) MACT standards.\24\
Of particular weight is the Report of the Senate Committee on
Environment and Public Works on the Clean Air Act Amendments of 1989
that clarifies that the section 112(d)(6) review provisions were
intended to apply to MACT standards: ``The Administrator is to review
and revise emission standards promulgated under section 112(d) no less
than every seven years.''
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\24\ See S. 1894, Clean Air Standards Attainment Act of 1987; S.
1630, Clean Air Act Amendments of 1989; and H.R. 3030, Clean Air Act
Amendments of 1990.
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Having said that, we believe that the findings that underlie a
section 112(f) determination should be key factors in making any
subsequent section 112(d)(6) determinations for the related section
112(d) standard. For example, if the ample margin of safety analysis
for the section 112(f) standard was not based at all on the
availability or cost of particular control technologies, then advances
in air pollution control technology should not justify revising the
MACT standard pursuant to section 112(d)(6) because the section 112(f)
standard would continue to assure an adequate level of safety.
Similarly, if the ample margin of safety analysis for a section 112(f)
standard shows that remaining risk for non-threshold pollutants falls
below 1 in a million and for threshold pollutants falls below a similar
threshold of safety, then no further revision would be needed because
an ample margin of safety has already been assured.
D. Specific Comments on Section 112(d)(6) Review of Coke Ovens
1. Nonrecovery Technology
Comment: One commenter stated that EPA admitted that risk levels
could be reduced substantially with nonrecovery technology. However,
EPA decided not to require this technology because the costs of
replacing existing batteries with nonrecovery batteries would be
financially crippling to the industry. Although EPA provided some cost
estimates, the Agency did not say why that cost would be crippling to
the industry or even to the individual companies involved. Rather, EPA
explained that the industry is currently depressed and plants might
choose to shut down. The EPA must substantiate its claims.
Response: We explained at proposal that replacing existing
batteries with nonrecovery batteries would be financially crippling
because the construction of a nonrecovery battery requires a capital
investment on the order of hundreds of millions of dollars (about $300
per ton of coke capacity). For example, the estimated capital cost to
replace batteries on the MACT track ranges from $50 to $290 million per
plant based on the existing coke capacity at these plants. Based on
recent trends that show a continuing decline in domestic coke capacity
due to shutdowns, these coke facilities would be more likely to
permanently close rather than construct new nonrecovery batteries. For
example, 12 of the 30 coke plants operating in 1993 have permanently
shut down, and five of these plants were on the MACT track.
Consequently, we determined that requiring the replacement of existing
batteries with nonrecovery batteries was not a reasonable or
economically feasible option.
We also examined the ability of the companies involved to recoup
their investment if they were to replace existing batteries with
nonrecovery batteries. The four existing by-product coke plants on the
MACT track are owned by two companies: AK Steel, which produces furnace
coke for internal consumption, and Tonawanda Coke Corporation, which
produces 15 to 20 percent of the foundry coke sold in the U.S. Based on
the Quarterly Financial Report from the U.S. Bureau of the Census,\25\
the average return on sales for all reporting companies within the iron
and steel industries from 2nd Quarter 2003 to 2nd Quarter 2004 ranged
from negative 5.9 percent to 9.8 percent. The weighted average price of
coke is approximately $120 per short ton. Using the highest profit rate
in 2004 (which is optimistic), the implied profit per short ton is
approximately $12 per short ton. Our conclusion is that with a 7
percent discount rate, companies would not able to recoup investment
for a nonrecovery battery (approximately $300 per ton). Even a 50-year
time profile at this profit level would not be sufficient to offset the
investment. Therefore these coke facilities would be more likely to
permanently close rather than construct new nonrecovery batteries.
These closures could have industry wide implications, particularly for
the foundry coke market, since Tonawanda accounts for a significant
share of foundry coke production in the U.S.
---------------------------------------------------------------------------
\25\ Table 4, Quarterly Financial Report for Manufacturing,
Mining, and Trade Corporations. U.S. Bureau of the Census, Second
Quarter, Series QFR 04-2Q. 2004.
---------------------------------------------------------------------------
2. Lack of New Requirements
Comment: One commenter believed that the proposed amendments were
deficient because they contained no new requirements despite the
remaining risk from facilities.
Response: The commenter is incorrect--the final rule amendments are
new and provide more stringent requirements for the MACT track
batteries. The limit for leaking doors decreases from 5 percent to 4
percent for foundry coke batteries and to 3.3 percent for other
batteries, the limit for lid leaks decreases from 0.6 percent to 0.4
percent, and the limit for offtake leaks decreases from 3 percent to
2.5 percent. The standard for new batteries and for reconstructed
batteries if there is an increase in capacity is already quite
stringent. Except for batteries utilizing a new by-product recovery
technology (such as by-product ovens operated under negative pressure),
the standard is 0 percent leaking doors, lids, and offtakes. The
current by-product battery technology cannot achieve this level of
control; consequently, new batteries are likely to use the nonrecovery
technology. In fact, the only new batteries constructed over the past
20 years have been nonrecovery batteries.
3. Charging Limit for Nonrecovery Batteries
Comment: One commenter requested that the proposed limit for
charging (20 percent opacity for five consecutive charges) in 40 CFR
63.303(d) also apply to existing nonrecovery batteries, not just new
batteries as proposed. As proposed, the charging limit would not apply
to nonrecovery batteries in the commenter's state (including one
existing plant and a new plant for which construction began before the
date of proposal).
Response: We based our proposal for more stringent standards for
new sources on the performance of the best-controlled source, and this
plant was developing an improved capture system
[[Page 20010]]
for charging emissions. We concluded that it was not appropriate to
increase the stringency of the current NESHAP for already-operating
nonrecovery batteries. This limit is appropriate for new sources, which
are those constructed after the date of proposal of these final rule
amendments, because it allows the new requirements to be incorporated
into the considerations of design and operation of the new source.
Further, we believe that the quantified limits on PM which two of the
already-operating nonrecovery batteries are achieving (69 FR 48351-
48352) can be readily (and appropriately) incorporated in these
batteries' operating permits as part of the State implementation plan
process. The suggestion by the commenter that we use this rulemaking to
amend the standard for these batteries to lock in their level of
performance thus appears to be unnecessary.
4. Costs
Comment: Two commenters asked EPA to avoid characterizing the costs
of $4,500/yr as ``small,'' ``minimal'' and ``very little.'' The
additional reduction that would be achieved is the last increment in a
series of reductions made by a distressed industry. The commenters
stated that, in their opinion, the incremental cost effectiveness is
actually high ($45,000 per ton), and the costs should be presented in
this format. They stated that the EPA should also recognize the
industry's success and overall cost in reducing emissions to meet the
stringent level of control.
Response: The original 1993 national emission standards resulted in
oven repairs, increased maintenance, and better work practices that
have reduced emissions to allow batteries to meet a more stringent
level of control. All of these activities have resulted in increased
costs for the control of emissions, although the emission reduction
benefits are substantial. In addition, the 1993 national emission
standards require daily monitoring to identify leaks, and the data show
the industry's success in reducing emissions.
We believe the cost of complying is reasonable considering that an
estimated 200,000 fewer people will be exposed to risks greater than 1
in a million, and the annual cancer incidence would be reduced by 0.03.
We agree with the commenters that the estimate of $4,500/yr is the most
recent increment in a series of reductions, but remain steadfast in our
belief that this number is minimal.
IV. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
Under Executive Order 12866 (58 FR 51735, October 4, 1993), the EPA
must determine whether the regulatory action is ``significant'' and,
therefore, subject to review by the Office of Management and Budget
(OMB) and the requirements of the Executive Order. The Executive Order
defines a ``significant regulatory action'' as one that is likely to
result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlement, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
Under the terms of Executive Order 12866, it has been determined
that this regulatory action is a ``significant regulatory action''
because it raises novel legal or policy issues. As such, this action
was submitted to OMB for Executive Order 12866 review. Changes made in
response to OMB suggestions or recommendations will be documented in
the public record.
B. Paperwork Reduction Act
The information collection requirements in the final rule
amendments have been submitted for approval to OMB under the Paperwork
Reduction Act, 44 U.S.C. 3501 et seq. The information collection
request (ICR) prepared by EPA has been assigned EPA ICR No. 1362.07.
The information collection requirements are not enforceable until OMB
approves them.
The information requirements are based on notification,
recordkeeping, and reporting requirements in the NESHAP General
Provisions (40 CFR part 63, subpart A), which are mandatory for all
operators subject to national emission standards. These recordkeeping
and reporting requirements are specifically authorized by section 114
of the CAA (42 U.S.C. 7414). All information submitted to EPA pursuant
to the recordkeeping and reporting requirements for which a claim of
confidentiality is made is safeguarded according to Agency policies set
forth in 40 CFR part 2, subpart B.
The final rule amendments establish work practice requirements
designed to improve control of door leaks applicable to all nonrecovery
coke oven batteries. The owner or operator also is required to add
certain information on malfunctions associated with door leaks to the
startup, shutdown, and malfunction plan. New nonrecovery batteries also
are required to implement the same work practice standards that already
apply to existing nonrecovery batteries. Plant owners or operators are
required to submit an initial notification of compliance status and
semiannual compliance reports. Records are required to demonstrate
compliance with applicable emission limitations and work practice
requirements. Additional requirements apply to a new nonrecovery coke
oven battery, but none are expected during the 3-year period of this
ICR. This action does not impose any new or revised information
collection burden on by-product coke oven batteries subject to the
final rule amendments. These batteries are currently meeting the
monitoring, recordkeeping, and reporting requirements in the 1993
national emission standards.
The increased annual average monitoring, reporting, and
recordkeeping burden for this collection (averaged over the first 3
years of the ICR) is estimated to total 448 labor hours per year at a
cost of $28,338. This includes an increase of three responses per year
from one respondent for an average of about 148 hours per response. No
capital/startup costs or operation and maintenance costs are associated
with the monitoring requirements.
Burden means the total time, effort, or financial resources
expended by persons to generate, maintain, retain, or disclose or
provide information to or for a Federal agency. This includes the time
needed to review instructions; develop, acquire, install, and utilize
technology and systems for the purposes of collecting, validating, and
verifying information, processing and maintaining information, and
disclosing and providing information; adjust the existing ways to
comply with any previously applicable instructions and requirements;
train personnel to be able to respond to a collection of information;
search data sources; complete and review the collection of information;
and transmit or otherwise disclose the information.
An agency may not conduct or sponsor, and a person is not required
to
[[Page 20011]]
respond to, a collection of information unless it displays a currently
valid OMB control number. The OMB control numbers for EPA's regulations
in 40 CFR part 63 are listed in 40 CFR part 9.
C. Regulatory Flexibility Act
The EPA has determined that it is not necessary to prepare a
regulatory flexibility analysis in connection with the final rule
amendments. For the purposes of assessing the impacts of today's final
rule amendments on small entities, small entity is defined as: (1) A
small business as defined by the Small Business Administrations'
regulations at 13 CFR 121.201; (2) a small governmental jurisdiction
that is a government of a city, county, town, school district or
special district with a population of less than 50,000; and (3) a small
organization that is any not-for-profit enterprise which is
independently owned and operated and that is not dominant in its field.
After considering the economic impacts of today's final rule
amendments on small entities, EPA has concluded that this action will
not have a significant economic impact on a substantial number of small
entities. We have determined that of the five companies subject to the
requirements of the final rule amendments, one company (operating a
total of three batteries) is considered a small entity but it will
experience no significant additional regulatory costs because it is
already meeting the stricter emissions limitations for by-product coke
oven batteries included in the final rule amendments, as well as the
monitoring, recordkeeping, and reporting requirements.
Although the final rule amendments will not have a significant
economic impact on a substantial number of small entities, we
nonetheless tried to reduce the impact of the final rule amendments on
small entities. Prior to proposal, we held meetings with industry trade
associations and company representatives to discuss the amendments and
have included provisions that address their concerns.
D. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under section 202 of the UMRA, the
EPA generally must prepare a written statement, including a cost-
benefit analysis, for proposed and final rules with ``Federal
mandates'' that may result in expenditures by State, local, and tribal
governments, in the aggregate, or by the private sector, of $100
million or more in any 1 year. Before promulgating an EPA rule for
which a written statement is needed, section 205 of the UMRA generally
requires the EPA to identify and consider a reasonable number of
regulatory alternatives and adopt the least costly, most cost-
effective, or least-burdensome alternative that achieves the objectives
of the rule. The provisions of section 205 do not apply when they are
inconsistent with applicable law. Moreover, section 205 allows the EPA
to adopt an alternative other than the least-costly, most cost-
effective, or least-burdensome alternative if the Administrator
publishes with the final rule an explanation why that alternative was
not adopted. Before the EPA establishes any regulatory requirements
that may significantly or uniquely affect small governments, including
tribal governments, it must have developed under section 203 of the
UMRA a small government agency plan. The plan must provide for
notifying potentially affected small governments, enabling officials of
affected small governments to have meaningful and timely input in the
development of EPA regulatory proposals with significant Federal
intergovernmental mandates, and informing, educating, and advising
small governments on compliance with the regulatory requirements.
EPA has determined that the final rule amendments do not contain a
Federal mandate that may result in expenditures of $100 million or more
for State, local, and tribal governments, in the aggregate, or to the
private sector in any 1 year. No significant costs are attributable to
the final rule amendments. Thus, the final rule amendments are not
subject to the requirements of sections 202 and 205 of the UMRA. In
addition, the final rule amendments do not significantly or uniquely
affect small governments because they contain no requirements that
apply to such governments or impose obligations upon them. Therefore,
the final rule amendments are not subject to section 203 of the UMRA.
E. Executive Order 13132: Federalism
Executive Order 13132 (64 FR 43255, August 10, 1999) requires EPA
to develop an accountable process to ensure ``meaningful and timely
input by State and local officials in the development of regulatory
policies that have federalism implications.'' ``Policies that have
federalism implications'' is defined in the Executive Order to include
regulations that 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.''
The final rule amendments do not have federalism implications. They
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, as specified in Executive Order 13132. None of the affected
plants are owned or operated by State governments. Thus, Executive
Order 13132 does not apply to the final rule amendments.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
Executive Order 13175 (65 FR 67249, November 6, 2000) requires EPA
to develop an accountable process to ensure ``meaningful and timely
input by tribal officials in the development of regulatory policies
that have tribal implications.'' ``Policies that have tribal
implications'' is defined in the Executive Order to include regulations
that have ``substantial direct effects on one or more Indian tribes, on
the relationship between the Federal government and Indian tribes.''
The final rule amendments do not have tribal implications, as
specified in Executive Order 13175. They will not have substantial
direct effects on tribal governments, on the relationship between the
Federal government and Indian tribes, or on the distribution of power
and responsibilities between the Federal government and Indian tribes.
No tribal governments own plants subject to the MACT standards for coke
oven batteries. Thus, Executive Order 13175 does not apply to the final
rule amendments.
G. Executive Order 13045: Protection of Children From Environmental
Health & Safety Risks
Executive Order 13045 (62 FR 19885, April 23, 1997) applies to any
rule that: (1) Is determined to be ``economically significant,'' as
defined under Executive Order 12866, and (2) concerns an environmental
health or safety risk that EPA has reason to believe may have a
disproportionate effect on children. If the regulatory action meets
both criteria, the EPA must evaluate the environmental health or safety
effects of the planned rule on children and explain why the planned
regulation is preferable to other potentially effective and reasonably
feasible alternatives considered by the Agency.
[[Page 20012]]
While these final rule amendments are not subject to the Executive
Order because they are not economically significant as defined in
Executive Order 12866, this rule is relevant under Executive Order
13045 because it represents the first application of the Agency's
``Supplemental Guidance for Assessing Susceptibility from Early-Life
Exposure to Carcinogens.'' In particular, the Supplemental Guidance
addresses the potential of an increased susceptibility to developing
cancers that may occur later in life associated with exposure to
compounds with a mutagenic mode of action in the early-life years.
Following the Agency's Supplemental Guidance for compounds that act
through a mutagenic mode of action, we have applied a default
adjustment factor in developing estimates of lifetime cancer risks in
this rulemaking to account for any potential susceptibility that may be
due to early-life or childhood exposure. The results of this assessment
are contained in section I of this preamble.
H. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use
The final rule amendments are not a ``significant energy action''
as defined in Executive Order 13211 (66 FR 28355, May 22, 2001) because
they are not likely to have a significant adverse effect on the supply,
distribution, or use of energy. Further, we have concluded that the
final rule amendments are not likely to have any adverse energy
impacts.
I. National Technology Transfer Advancement Act
Section 112(d) of the National Technology Transfer and Advancement
Act (NTTAA) of 1995 (Pub. L. No. 104-113; 15 U.S.C. 272 note) directs
the EPA to use voluntary consensus standards (VCS) in their regulatory
and procurement activities unless to do so would be inconsistent with
applicable law or otherwise impracticable. VCS are technical standards
(e.g., material specifications, test methods, sampling procedures,
business practices) developed or adopted by one or more voluntary
consensus bodies. The NTTAA requires EPA to provide Congress, through
the OMB, explanations when the Agency decides not to use available and
applicable VCS.
The final rule amendments involve technical standards. The final
rule amendments use EPA Methods 1, 2, 2F, 2G, 3, 3A, 3B, 4, 5, 5D (PM)
and 9 (opacity) of 40 CFR part 60, appendix A.
Consistent with the NTTAA, we conducted searches to identify VCS in
addition to these EPA methods. No applicable VCS were identified for
EPA Methods 2F, 2G, 5D, and 9. One VCS was identified as an acceptable
alternative to EPA test methods for the purposes of the final rule
amendments. The ASME PTC 19-10-1981--Part 10, ``Flue and Exhaust Gas
Analyses,'' (incorporated by reference) is cited in the final rule
amendments for its manual method for measuring the oxygen, carbon
dioxide, and carbon monoxide content of exhaust gas. This part of ASME
PTC 19-10-1981--Part 10 is an acceptable alternative to Method 3B.
Our search for emissions monitoring procedures identified fourteen
VCS applicable to the final rule amendments. The EPA determined that
twelve of the VCS identified for measuring PM were impractical
alternatives to EPA test methods due to lack of equivalency, detail,
specific equipment requirements, or quality assurance/quality control
requirements. The two remaining VCS identified in the search were not
available at the time the review was conducted because they are under
development by a voluntary consensus body: ASME/BSR MFC 13M, ``Flow
Measurement by Velocity Traverse,'' for EPA Method 2 (and possibly
Method 1) and ASME/BSR MFC 12M, ``Flow in Closed Conduits Using
Multiport Averaging Pitot Primary Flowmeters,'' for EPA Method 2.
Therefore, EPA did not adopt those VCS for this purpose. Detailed
information on the EPA's search and review results is included in the
docket.
Sections 63.309(j) through (l) of the final rule amendments list
the EPA test methods that are required. Under 40 CFR 63.7(f) and 40 CFR
63.8(f), a source may apply to EPA for permission to use alternative
test methods or monitoring requirements in place of any of the EPA test
methods, performance specifications, or procedures.
J. Congressional Review Act
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Act of 1996, generally provides
that before a rule may take effect, the agency promulgating the rule
must submit a rule report, which includes a copy of the rule, to each
House of the Congress and to the Comptroller General of the United
States. The EPA will submit a report containing the final rule
amendments and other required information to the U.S. Senate, the U.S.
House of Representatives, and the Comptroller General of the United
States prior to publication of the final rule amendments in the Federal
Register. A major rule cannot take effect until 60 days after it is
published in the Federal Register. This action is not a ``major rule''
as defined by 5 U.S.C. 804(2). The final rule amendments will be
effective on April 15, 2005.
List of Subjects in 40 CFR Part 63
Environmental protection, Air pollution control, Hazardous
substances, Incorporation by reference, Reporting and recordkeeping
requirements.
Dated: March 31, 2005.
Stephen L. Johnson,
Acting Administrator.
0
For the reasons stated in the preamble, title 40, chapter I, part 63 of
the Code of Federal Regulations is amended as follows:
PART 63--[AMENDED]
0
1. The authority citation for part 63 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart A--[Amended]
0
2. Section 63.14 is amended by revising paragraph (i)(3) to read as
follows:
Sec. 63.14 Incorporations by reference.
* * * * *
(i) * * *
(3) ANSI/ASME PTC 19.10-1981, ``Flue and Exhaust Gas Analyses [Part
10, Instruments and Apparatus],'' IBR approved for Sec. Sec.
63.309(k)(1)(iii), 63.865(b), 63.3166(a)(3), 63.3360(e)(1)(iii),
63.3545(a)(3), 63.3555(a)(3), 63.4166(a)(3), 63.4362(a)(3),
63.4766(a)(3), 63.4965(a)(3), 63.5160(d)(1)(iii), 63.9307(c)(2), and
63.9323(a)(3) and Table 5 to Subpart DDDDD of this part.
* * * * *
Subpart L--[Amended]
0
3. Section 63.300 is amended as follows:
0
a. Redesignating existing paragraphs (a)(3) through (a)(5) as (a)(5)
through (a)(7); and
0
b. Adding new paragraphs (a)(3), and (a)(4).
Sec. 63.300 Applicability.
(a) * * *
(3) July 14, 2005, for existing by-product coke oven batteries
subject to emission limitations in Sec. 63.302(a)(3) and for
nonrecovery coke oven batteries subject to the emission limitations and
requirements in Sec. 63.303(b)(3) or (c);
(4) Upon startup for a new nonrecovery coke oven battery subject to
the emission limitations and
[[Page 20013]]
requirements in Sec. 63.303(b), (c), and (d). A new nonrecovery coke
oven battery subject to the requirements in Sec. 63.303(d) is one for
which construction or reconstruction commenced on or after August 9,
2004;
* * * * *
0
4. Section 63.302 is amended by adding new paragraph (a)(3) to read as
follows:
Sec. 63.302 Standards for by-product coke oven batteries.
(a) * * *
(3) On and after July 14, 2005;
(i) 4.0 percent leaking coke oven doors for each tall by-product
coke oven battery and for each by-product coke oven battery owned or
operated by a foundry coke producer, as determined by the procedures in
Sec. 63.309(d)(1);
(ii) 3.3 percent leaking coke oven doors for each by-product coke
oven battery not subject to the emission limitation in paragraph
(a)(3)(i) of this section, as determined by the procedures in Sec.
63.309(d)(1);
(iii) 0.4 percent leaking topside port lids, as determined by the
procedures in Sec. 63.309(d)(1);
(iv) 2.5 percent leaking offtake system(s), as determined by the
procedures in Sec. 63.309(d)(1); and
(v) 12 seconds of visible emissions per charge, as determined by
the procedures in Sec. 63.309(d)(2).
* * * * *
0
5. Section 63.303 is amended as follows:
0
a. Redesignating paragraphs (b)(3) and (b)(4) as (b)(4) and (b)(5);
0
b. Adding new paragraph (b)(3); and
0
c. Adding new paragraphs (c) and (d).
Sec. 63.303 Standards for nonrecovery coke oven batteries.
* * * * *
(b) * * *
(3) For charging operations, the owner or operator shall implement,
for each day of operation, the work practices specified in Sec.
63.306(b)(6) and record the performance of the work practices as
required in Sec. 63.306(b)(7).
* * * * *
(c) Except as provided in Sec. 63.304, the owner or operator of
any nonrecovery coke oven battery shall meet the work practice
standards in paragraphs (c)(1) and (2) of this section.
(1) The owner or operator shall observe each coke oven door after
charging and record the oven number of any door from which visible
emissions occur. Emissions from coal spilled during charging or from
material trapped within the seal area of the door are not considered to
be a door leak if the owner or operator demonstrates that the oven is
under negative pressure, and that no emissions are visible from the top
of the door or from dampers on the door.
(2) Except as provided in paragraphs (c)(2)(i) and (ii) of this
section, if a coke oven door leak is observed at any time during the
coking cycle, the owner or operator shall take corrective action and
stop the leak within 15 minutes from the time the leak is first
observed. No additional leaks are allowed from doors on that oven for
the remainder of that oven's coking cycle.
(i) Except as provided in paragraph (c)(2)(ii) of this section, the
owner or operator may take corrective action and stop the leak within
45 minutes (instead of 15 minutes) from the time the leak is first
observed for a maximum of two times per battery in any semiannual
reporting period.
(ii) If a worker must enter a cokeside shed to stop a leaking door
under the cokeside shed, the owner or operator shall take corrective
action and stop the door leak within 45 minutes (instead of 15 minutes)
from the time the leak is first observed. The evacuation system and
control device for the cokeside shed must be operated at all times
there is a leaking door under the cokeside shed.
(d) The owner or operator of a new nonrecovery coke oven battery
shall meet the emission limitations and work practice standards in
paragraphs (d)(1) through (4) of this section.
(1) The owner or operator shall not discharge or cause to be
discharged to the atmosphere from charging operations any fugitive
emissions that exhibit an opacity greater than 20 percent, as
determined by the procedures in Sec. 63.309(j).
(2) The owner or operator shall not discharge or cause to be
discharged to the atmosphere any emissions of particulate matter (PM)
from a charging emissions control device that exceed 0.0081 pounds per
ton (lbs/ton) of dry coal charged, as determined by the procedures in
Sec. 63.309(k).
(3) The owner or operator shall observe the exhaust stack of each
charging emissions control device at least once each day of operation
during charging to determine if visible emissions are present and shall
record the results of each daily observation or the reason why
conditions did not permit a daily observation. If any visible emissions
are observed, the owner or operator must:
(i) Take corrective action to eliminate the presence of visible
emissions;
(ii) Record the cause of the problem creating the visible emissions
and the corrective action taken;
(iii) Conduct visible emission observations according to the
procedures in Sec. 63.309(m) within 24 hours after detecting the
visible emissions; and
(iv) Report any 6-minute average, as determined according to the
procedures in Sec. 63.309(m), that exceeds 10 percent opacity as a
deviation in the semiannual compliance report required by Sec.
63.311(d).
(4) The owner or operator shall develop and implement written
procedures for adjusting the oven uptake damper to maximize oven draft
during charging and for monitoring the oven damper setting during each
charge to ensure that the damper is fully open.
0
6. Section 63.309 is amended by adding new paragraphs (j) through (m)
to read as follows:
Sec. 63.309 Performance tests and procedures.
* * * * *
(j) The owner or operator of a new nonrecovery coke oven battery
shall conduct a performance test once each week to demonstrate
compliance with the opacity limit in Sec. 63.303(d)(1). The owner or
operator shall conduct each performance test according to the
procedures and requirements in paragraphs (j)(1) through (3) of this
section.
(1) Using a certified observer, determine the average opacity of
five consecutive charges per week for each charging emissions capture
system if charges can be observed according to the requirements of
Method 9 (40 CFR part 60, appendix A), except as specified in
paragraphs (j)(1)(i) and (ii) of this section.
(i) Instead of the procedures in section 2.4 of Method 9 (40 CFR
part 60, appendix A), record observations to the nearest 5 percent at
15-second intervals for at least five consecutive charges.
(ii) Instead of the procedures in section 2.5 of Method 9 (40 CFR
part 60, appendix A), determine and record the highest 3-minute average
opacity for each charge from the consecutive observations recorded at
15-second intervals.
(2) Opacity observations are to start when the door is removed for
charging and end when the door is replaced.
(3) Using the observations recorded from each performance test, the
certified observer shall compute and record the average of the highest
3-minute averages for five consecutive charges.
(k) The owner or operator of a new nonrecovery coke oven battery
shall conduct a performance test to demonstrate initial compliance with
the emission limitations for a charging
[[Page 20014]]
emissions control device in Sec. 63.303(d)(2) within 180 days of the
compliance date that is specified for the affected source in Sec.
63.300(a)(4) and report the results in the notification of compliance
status. The owner or operator shall prepare a site-specific test plan
according to the requirements in Sec. 63.7(c) and shall conduct each
performance test according to the requirements in Sec. 63.7(e)(1) and
paragraphs (k)(1) through (4) of this section.
(1) Determine the concentration of PM according to the following
test methods in appendix A to 40 CFR part 60.
(i) Method 1 to select sampling port locations and the number of
traverse points. Sampling sites must be located at the outlet of the
control device and prior to any releases to the atmosphere.
(ii) Method 2, 2F, or 2G to determine the volumetric flow rate of
the stack gas.
(iii) Method 3, 3A, or 3B to determine the dry molecular weight of
the stack gas. You may also use as an alternative to Method 3B, the
manual method for measuring the oxygen, carbon dioxide, and carbon
monoxide content of exhaust gas, ANSI/ASME PTC 19.10-1981, ``Flue and
Exhaust Gas Analyses'' (incorporated by reference, see Sec. 63.14).
(iv) Method 4 to determine the moisture content of the stack gas.
(v) Method 5 or 5D, as applicable, to determine the concentration
of front half PM in the stack gas.
(2) During each PM test run, sample only during periods of actual
charging when the capture system fan and control device are engaged.
Collect a minimum sample volume of 30 dry standard cubic feet (dscf)
during each test run. Three valid test runs are needed to comprise a
performance test. Each run must start at the beginning of a charge and
finish at the end of a charge (i.e., sample for an integral number of
charges).
(3) Determine and record the total combined weight of tons of dry
coal charged during the duration of each test run.
(4) Compute the process-weighted mass emissions (Ep) for
each test run using Equation 1 of this section as follows:
[GRAPHIC] [TIFF OMITTED] TR15AP05.000
Where:
Ep = Process weighted mass emissions of PM, lb/ton;
C = Concentration of PM, grains per dry standard cubic foot (gr/dscf);
Q = Volumetric flow rate of stack gas, dscf/hr;
T = Total time during a run that a sample is withdrawn from the stack
during charging, hr;
P = Total amount of dry coal charged during the test run, tons; and
K = Conversion factor, 7,000 grains per pound (gr/lb).
(l) The owner or operator of a new nonrecovery coke oven battery
shall conduct subsequent performance tests for each charging emissions
control device subject to the PM emissions limit in Sec. 63.303(d)(2)
at least once during each term of their title V operating permit.
(m) Visible emission observations of a charging emissions control
device required by Sec. 63.303(d)(3)(iii) must be performed by a
certified observer according to Method 9 (40 CFR part 60, appendix A)
for one 6-minute period.
0
7. Section 63.310 is amended by adding new paragraph (j) to read as
follows:
Sec. 63.310 Requirements for startups, shutdowns, and malfunctions.
* * * * *
(j) The owner or operator of a nonrecovery coke oven battery
subject to the work practice standards for door leaks in Sec.
63.303(c) shall include the information specified in paragraphs (j)(1)
and (2) of this section in the startup, shutdown, and malfunction plan.
(1) Identification of potential malfunctions that will cause a door
to leak, preventative maintenance procedures to minimize their
occurrence, and corrective action procedures to stop the door leak.
(2) Identification of potential malfunctions that affect charging
emissions, preventative maintenance procedures to minimize their
occurrence, and corrective action procedures.
0
8. Section 63.311 is amended as follows:
0
a. Revising paragraph (b)(1) and adding new paragraphs (b)(3) through
(7);
0
b. Revising paragraph (c)(1) and adding new paragraph (c)(3);
0
c. Revising paragraphs (d)(1) through (3) and adding new paragraphs
(d)(4) through (9); and
0
d. Revising paragraphs (f)(1)(i) and (ii) and adding new paragraphs
(f)(1)(iv) through (ix).
Sec. 63.311 Reporting and recordkeeping requirements.
* * * * *
(b) * * *
(1) Statement signed by the owner or operator, certifying that a
bypass/bleeder stack flare system or an approved alternative control
device or system has been installed as required in Sec. 63.307.
(2) * * *
(3) Statement, signed by the owner or operator, certifying that all
work practice standards for charging operations have been met as
required in Sec. 63.303(b)(3).
(4) Statement, signed by the owner or operator, certifying that all
work practice standards for door leaks have been met as required in
Sec. 63.303(c).
(5) Statement, signed by the owner or operator, certifying that the
information on potential malfunctions has been added to the startup,
shutdown and malfunction plan as required in Sec. 63.310(j).
(6) Statement, signed by the owner or operator, that all applicable
emission limitations in Sec. 63.303(d)(1) and (2) for a new
nonrecovery coke oven battery have been met. The owner or operator
shall also include the results of the PM performance test required in
Sec. 63.309(k).
(7) Statement, signed by the owner or operator, certifying that all
work practice standards in Sec. 63.303(d)(3) and (4) for a new
nonrecovery coke oven battery have been met.
(c) * * *
(1) Intention to construct a new coke oven battery (including
reconstruction of an existing coke oven battery and construction of a
greenfield coke oven battery), a brownfield coke oven battery, or a
padup rebuild coke oven battery, including the anticipated date of
startup.
(2) * * *
(3) Intention to conduct a PM performance test for a new
nonrecovery coke oven battery subject to the requirements in Sec.
63.303(d)(2). The owner or operator shall provide written notification
according to the requirements in Sec. 63.7(b).
(d) * * *
(1) Certification, signed by the owner or operator, that no coke
oven gas was vented, except through the bypass/bleeder stack flare
system of a by-product coke oven battery during the reporting period or
that a venting report has been submitted according to the requirements
in paragraph (e) of this section.
(2) Certification, signed by the owner or operator, that a startup,
shutdown, or malfunction event did not occur for a coke oven battery
during the reporting period or that a startup, shutdown, and
malfunction event did occur and a report was submitted according to the
requirements in Sec. 63.310(e).
(3) Certification, signed by the owner or operator, that work
practices were implemented if applicable under Sec. 63.306.
[[Page 20015]]
(4) Certification, signed by the owner or operator, that all work
practices for nonrecovery coke oven batteries were implemented as
required in Sec. 63.303(b)(3).
(5) Certification, signed by the owner or operator, that all coke
oven door leaks on a nonrecovery battery were stopped according to the
requirements in Sec. 63.303(c)(2) and (3). If a coke oven door leak
was not stopped according to the requirements in Sec. 63.303(c)(2) and
(3), or if the door leak occurred again during the coking cycle, the
owner or operator must report the information in paragraphs (d)(5)(i)
through (iii) of this section.
(i) The oven number of each coke oven door for which a leak was not
stopped according to the requirements in Sec. 63.303(c)(2) and (3) or
for a door leak that occurred again during the coking cycle.
(ii) The total duration of the leak from the time the leak was
first observed.
(iii) The cause of the leak (including unknown cause, if
applicable) and the corrective action taken to stop the leak.
(6) Certification, signed by the owner or operator, that the
opacity of emissions from charging operations for a new nonrecovery
coke oven battery did not exceed 20 percent. If the opacity limit in
Sec. 63.303(d)(1) was exceeded, the owner or operator must report the
number, duration, and cause of the deviation (including unknown cause,
if applicable), and the corrective action taken.
(7) Results of any PM performance test for a charging emissions
control device for a new nonrecovery coke oven battery conducted during
the reporting period as required in Sec. 63.309(l).
(8) Certification, signed by the owner or operator, that all work
practices for a charging emissions control device for a new nonrecovery
coke oven battery were implemented as required in Sec. 63.303(d)(3).
If a Method 9 (40 CFR part 60, appendix A) visible emissions
observation exceeds 10 percent, the owner or operator must report the
duration and cause of the deviation (including unknown cause, if
applicable), and the corrective action taken.
(9) Certification, signed by the owner or operator, that all work
practices for oven dampers on a new nonrecovery coke oven battery were
implemented as required in Sec. 63.303(d)(4).
* * * * *
(f) * * *
(1) * * *
(i) Records of daily pressure monitoring, if applicable according
to Sec. 63.303(a)(1)(ii) or Sec. 63.303(b)(1)(ii).
(ii) Records demonstrating the performance of work practice
requirements according to Sec. 63.306(b)(7). This requirement applies
to nonrecovery coke oven batteries subject to the work practice
requirements in Sec. 63.303(a)(2) or Sec. 63.303(b)(3).
(iii) * * *
(iv) Records to demonstrate compliance with the work practice
requirement for door leaks in Sec. 63.303(c). These records must
include the oven number of each leaking door, total duration of the
leak from the time the leak was first observed, the cause of the leak
(including unknown cause, if applicable), the corrective action taken,
and the amount of time taken to stop the leak from the time the leak
was first observed.
(v) Records to demonstrate compliance with the work practice
requirements for oven uptake damper monitoring and adjustments in Sec.
63.303(c)(1)(iv).
(vi) Records of weekly performance tests to demonstrate compliance
with the opacity limit for charging operations in Sec. 63.303(d)(1).
These records must include calculations of the highest 3-minute
averages for each charge, the average opacity of five charges, and, if
applicable, records demonstrating why five consecutive charges were not
observed (e.g., the battery was charged only at night).
(vii) Records of all PM performance tests for a charging emissions
control device to demonstrate compliance with the limit in Sec.
63.303(d)(2).
(viii) Records of all daily visible emission observations for a
charging emission control device to demonstrate compliance with the
requirements limit in Sec. 63.303(d)(3).
(ix) Records to demonstrate compliance with the work practice
requirements for oven uptake damper monitoring and adjustments in Sec.
63.303(d)(4).
* * * * *
[FR Doc. 05-6942 Filed 4-14-05; 8:45 am]
BILLING CODE 6560-50-P