Memorandum

Subject:	EPA Response to AF&PA Paper Entitled “MACT Hammer ICR and 		
Importance of 	Court Vacatur of Boiler MACT” 

To:		Docket EPA-HQ-OAR-2002-0038

Date:		June 3, 2008	

	On March 12, 2008, AF&PA sent by e-mail to Peter Tsirigotis, Director
of the Sector Policy and Programs Division,  a paper entitled “MACT
Hammer ICR and Importance of Court Vacatur of Boiler MACT”
(Category-Vacatur Paper).  The Category-Vacatur Paper was not submitted
to the docket at that time and was sent to EPA after the January 2, 2008
close of the first comment period on EPA’s ICR package.  AF&PA
submitted the Category-Vacatur Paper during the second comment period as
an attachment to its May 18, 2008 comments on EPA’s final ICR package
(EPA-HQ-OAR-2002-0038 – 0096.1, Attachment B).  

	In the Category-Vacatur Paper, AF&PA notes that the obligation under
section 112(j) to apply for a source-specific MACT determination
attaches only to an owner or operator of equipment that belongs to a
source category established by EPA under section 112(c).  AF&PA goes on
the argue that at present, no such source category exists for ICI
boilers and process heaters (“ICI boilers/heaters”) because,
according to AF&PA, when the D.C. Circuit vacated the MACT Rule for this
source category in NRDC v. EPA, 489 F.3d 1250 (2007), it also vacated
the category listing because the category listing was an integral
component of the nullified 2004 Rule.  AF&PA concludes that Section
112(j) does not apply to ICI boiler/heaters of any sort.

	AF&PA’s position is without merit.  Though AF&PA is correct that
judicial review of a source category listing under section 112(c)(1)
(“listing decision”) is available when EPA issues emission standards
under section 112(d) for such category, the validity of the ICI
boiler/process heater listing was not challenged by any party in NRDC v.
EPA and the Court’s decision does not address the validity of the
listing decision.  Section 112(c)(1) requires, in relevant part, that
EPA establish a list of all major sources of hazardous air pollutants. 
Section 112(c)(2) requires that EPA establish emission standards under
section 112(d) for each source category listed pursuant to (c)(1).  In
NRDC v. EPA, no party argued that the listing of ICI boilers/process
heaters pursuant to section 112(c)(1) was inappropriate.  Even now,
AF&PA does not offer any basis for such an argument except for its
conclusory claim that vacatur of a 112(d) NESHAP necessarily vacates a
112(c)(1) listing. 

	The basis for a listing of a major source category under 112(c) is a
finding that there are major sources of HAP within the category.  The
decision in NRDC v. EPA does not undermine the basis for the listing and
it is hard to imagine that a vacatur of any NESHAP standard would ever
do so unless the basis for the vacatur was that there were no major
sources in the category to which the NESHAP standard applied – a very
unlikely scenario that is clearly not present here.          

	AF&PA makes much of EPA statements explaining that the description of
source categories may be revised and that ultimately a definition of a
category will be incorporated in each rule establishing a NESHAP for
that category.  However, it does not follow, as AF&PA suggests, that the
112(c) listing merges with and is inseparable from a NESHAP promulgated
pursuant to section 112(d).  EPA recognizes that the vacatur in NRDC v.
EPA turned on definitional issues.  However, the definitional issues
identified by the court do not call into question the basis for section
112(c) listing – that there are ICI boilers and process heaters that
are major sources of HAP.

	Most importantly, as noted above, no party argued that the listing of
ICI boilers/process heaters pursuant to section 112(c)(1) was
inappropriate and the Court’s decision does not address the validity
of the listing decision.  Therefore, AF&PA’s position that the listing
decision has been vacated lacks merit.       

