"
Walke,
John"
<
jwalke@
nrdc.
org>
09/
28/
2004
05:
13
PM
To
Group
A­
AND­
R­
DOCKET@
EPA
Subject
Attn
Docket
numbers
OAR­
2003­
0048
&
A­
98­
44
>
­­­­­
Original
Message­­­­­
>
From:
Devine,
Jon
>
Sent:
Tuesday,
September
28,
2004
5:
03
PM
>
To:
'
leavitt.
michael@
epa.
gov';
'
holmstead.
jeff@
epa.
gov';
'
wehrum.
bill@
epa.
gov';
'
kissell.
mary@
epa.
gov';
'
embrey.
patricia@
epa.
gov'
>
Subject:
Petition
for
Reconsideration
­­
Plywood
and
Composite
Wood
Products
NESHAP
­­
Docket
#
OAR­
2003­
0048
>
>
>
Dear
Administrator
Leavitt
et.
al:
>
>
Please
find
attached
a
petition
for
reconsideration
(
and
accompanying
attachments)
for
the
final
rulemaking
titled,
"
National
Emission
Standards
for
Hazardous
Air
Pollutants:
Plywood
and
Composite
Wood
Products;
Effluent
Limitations
Guidelines
and
Standards
for
the
Timber
Products
Point
Source
Category;
List
of
Hazardous
Air
Pollutants,
Lesser
Quantity
Designations,
Source
Category
List,"
and
published
at
69
Fed.
Reg.
45,943
(
July
30,
2004).
>
>
Please
feel
free
to
contact
any
of
us
at
the
phone
number
and
address
below
with
any
questions
concerning
this
matter
or
if
there
are
any
problems
with
this
transmission.
>
>
<<
Petition
for
Reconsideration
­­
FINAL.
doc>>
>
>
<<
Risk
in
MACT
Briefing
for
Actng
Admin
Horinko
10­
6­
03.
pdf>>
>
>
<<
D
Guinnup
Emails
11­
17­
03
et
al.
pdf>>
>
>
<<
Residual
Risk
Program
Selection
of
Haz
Index
Limits
10­
4­
02.
pdf>>
>
>
<<
Background
Noncancer
Health
Benchmarks
and
the
Hazard
Index
10­
4­
02.
pdf>>
>
>
<<
D
Guinnup
emails
10­
16­
02
et
al.
pdf>>
>
>
<<
Addressing
Noncancer
Impacts
in
the
Residual
Risk
Program
D
Guinnup
brief
7­
03.
pdf>>
>
>
<<
Plywood
and
Composite
Wood
Products
MACT
Briefing
for
Admin
Leavitt
1­
5­
04.
pdf>>
>
>
<<
Setting
Hazard
Index
Limits
Dpty
Admin
Johnson
1­
04.
pdf>>
>
>
<<
Ottawa
formaldehyde
peer
review
final
report.
pdf>>
>
>
<<
EJ
comments
on
GP
revisions.
doc>>
>
>
<<
EJ
GP
nonbinding
statement
of
issues.
pdf>>
>
>
<<
Petition
for
Recon.
SSM
7_
29_
03
JEJ.
pdf>>
>
>
<<
Elevation
Levels.
xls>>
>
>
<<
OGC
memo
on
risk
exemptions.
pdf>>
>
>
Sincerely,
>
>
Jon
Devine
>
John
Walke
>
David
McIntosh
>
Natural
Resources
Defense
Council
>
1200
New
York
Avenue,
NW
>
Suite
400
>
Washington,
DC
20005
>
(
202)
289­
6868
(
phone)
>
(
202)
289­
1060
(
fax)
>
BEFORE
THE
ADMINISTRATOR
UNITED
STATES
ENVIRONMENTAL
PROTECTION
AGENCY
__________________________________________
)
In
the
Matter
of
the
Final
Rule:
)
)
OAR­
2003­
0048
National
Emission
Standards
for
Hazardous
Air
)
A­
98­
44
Pollutants:
Plywood
and
Composite
Wood
)
Products;
Effluent
Limitations
Guidelines
and
)
Standards
for
the
Timber
Products
Point
Source
)
Category;
List
of
Hazardous
Air
Pollutants,
Lesser
)
Quantity
Designations,
Source
Category
List
)
__________________________________________)

PETITION
FOR
RECONSIDERATION
Pursuant
to
Section
307(
d)(
7)(
B)
of
the
Clean
Air
Act,
1
the
Natural
Resources
Defense
Council
and
the
Environmental
Integrity
Project
hereby
petition
the
Administrator
of
the
Environmental
Protection
Agency
("
the
Administrator"
or
"
EPA")

to
reconsider
the
National
Emission
Standard
for
Hazardous
Air
Pollutants
(
NESHAP)

captioned
above
and
published
at
69
Fed.
Reg.
45,944
(
July
30,
2004).

The
Clean
Air
Act
(
CAA)
requires
that
EPA
establish,
for
each
category
of
major
sources
of
hazardous
air
pollutants
(
HAPs),
emission
standards
reflecting
the
maximum
achievable
control
technology
(
MACT),
which
essentially
require
that
each
source
in
the
category
limit
its
emissions
to
a
level
commensurate
with
the
best
performers
in
the
industry.
In
this
rule,
however,
EPA
has
decided
to
allow
numerous
sources
 
over
half
of
the
industry
 
to
avoid
controls
if
they
demonstrate
to
the
agency's
satisfaction
that
they
are
"
low
risk."
Specifically,
the
agency
has
attempted
to
evade
MACT
by
creating
a
subcategory
of
plywood
and
composite
wood
products
(
PCWP)
facilities
that
pose
a
"
low"
risk
to
nearby
populations,
and
then
removing
that
newly­
created
subcategory
from
1
42
U.
S.
C.
§
7607(
d)(
7)(
B)
3
the
list
of
industries
for
which
EPA
must
issue
MACT
standards,
attempting
to
rely
on
separate
authority
in
the
Act
to
"
de­
list"
categories
of
sources
that
pose
minimal
risk
to
public
health
and
the
environment.
By
creating
risk­
based
exemptions
from
MACT,
this
approach
fundamentally
subverts
the
Act's
basic
structure,
which
demands
that
EPA
regulate
HAP
sources
in
two
phases:
first,
the
agency
is
to
establish
technology­
based
MACT
standards;
second,
EPA
must
establish
emission
standards
to
address
any
residual
risk
remaining
after
the
application
of
MACT.

We
seek
reconsideration
of
nine
principal
elements
of
these
new
exemptions
from
the
final
rule:
(
1)
the
risk
assessment
methodology
that
sources
can
use
to
become
exempt
from
controls;
(
2)
EPA's
decision
to
ignore
several
sources
of
risk
in
its
exemption
criteria
(
specifically,
the
risks
from
background
pollution
and
co­
located
emission
sources);
(
3)
the
agency's
reliance
on
an
industry
evaluation
of
the
risks
of
formaldehyde
and
its
decision
to
ignore
recent
government
studies
linking
the
chemical
to
leukemia;
(
4)
EPA's
conclusion
that
the
exemptions
should
proceed
despite
its
own
data
indicating
that
an
exemption­
free
rule
would
result
in
greater
health
benefits
than
compliance
costs;
(
5)
the
agency's
virtually
unsupported
conclusion
that
PCWP
facilities
do
not
pose
a
risk
of
ecological
harm;
(
6)
the
lack
of
a
legal
basis
for
the
risk­
based
exemptions;
(
7)
the
rule's
grant
of
an
unlawful
three­
year
compliance
extension
for
sources
previously
qualifying
for
the
low­
risk
exemption;
(
8)
the
rule's
startup,
shutdown
and
malfunction
provisions;
and
(
9)
the
Title
V
implementation
approach
for
the
risbased
exemptions.
4
Today,
we
also
have
filed
a
petition
for
review
of
this
rule
in
the
U.
S.
Court
of
Appeals
for
the
D.
C.
Circuit
and,
among
other
things,
we
will
ask
that
court
to
invalidate
these
risk­
based
exemptions
altogether.

Reconsideration
of
the
issues
listed
above
is
appropriate
because
the
objections
raised
in
this
petition
could
not
have
been
practicably
raised
during
the
public
comment
period
and
are
of
central
relevance
to
the
outcome
of
the
rule.
The
Administrator
must
therefore
"
convene
a
proceeding
for
reconsideration
of
the
rule
and
provide
the
same
procedural
rights
as
would
have
been
afforded
had
the
information
been
available
at
the
time
the
rule
was
proposed."
2
We
expect
that
EPA
will
neither
be
surprised
by,
nor
legitimately
be
able
to
deny,
this
petition,
as
an
internal
EPA
briefing
for
Administrator
Leavitt
frankly
acknowledges
that
the
agency
may
have
"[
p]
ossible
`
logical
outgrowth'

problems
regarding
criteria
details"
concerning
the
risk­
based
approach.
3
Similarly,

Assistant
Administrator
Holmstead
stated:

there
is
a
legal
concern
regarding
notice
and
comment
procedures
and
whether
including
risk­
based
approaches
in
final
rule
could
be
considered
a
logical
outgrowth
from
the
proposal.
*
*
*
Mr.
Holmstead
noted
that
the
CAA
section
307(
d)
petition
for
reconsideration
process
could
be
used
to
resolve
any
logical
outgrowth
problems.
4
Accordingly,
EPA
must
 
as
Mr.
Holmstead
predicted
it
might
need
to
 
immediately
grant
our
reconsideration
request
and
provide
the
public
with
the
opportunity
to
comment
upon
these
issues.

2
42
U.
S.
C.
§
7607(
d)(
7)(
B).
3
U.
S.
EPA,
Plywood
and
Composite
Wood
Products
MACT
and
Turbines
MACT:
Using
Risk
to
Delist
Certain
Subcategories,
Briefing
for
Administrator
Leavitt,
at
11
(
Jan.
5,
2004)
(
attached).
4
U.
S.
EPA,
Meeting
Minutes
for
the
December
12,
2003
Meeting
Between
the
U.
S.
Environmental
Protection
Agency
and
the
American
Forest
&
Paper
Association,
Memorandum
to
Docket
OAR­
2003­
0048
("
Dec.
12,
2003
AFPA­
EPA
Meeting
Minutes").
5
We
also
request
that
EPA
stay
the
effectiveness
of
the
rule's
exemptions.
It
is
important
that
the
agency
do
so,
because
the
final
rule
calls
for
sources
to
begin
to
take
action
to
opt
out
of
the
new
requirements
immediately.
EPA's
rule
commits
the
agency
to
individually
review
and
approve
each
facility's
exemption
request,
and
states,
"[
t]
o
facilitate
the
review
and
approval
process,
EPA
encourages
facilities
to
submit
their
assessments
as
soon
as
possible."
5
Sources
should
not
invest
time
and
resources
in
demonstrating
that
they
are
"
low
risk"
under
EPA's
criteria,
when
those
criteria
will
need
to
be
re­
evaluated
because
of
this
petition.
Thus,
EPA
should
grant
a
stay
of
the
exemption
provisions
at
least
consistent
with
its
authority
in
section
307(
d)(
7)(
B)
of
the
CAA.

Indeed,
EPA
should
not
only
grant
a
limited
stay,
but
should
undertake
rulemaking
action
to
indefinitely
stay
the
exemptions
in
light
of
the
likely
success
of
our
petition
for
review;
the
risk­
based
approach
to
MACT
is
simply
unlawful,
and
is
completely
at
odds
with
the
D.
C.
Circuit's
recent
explanation
of
the
basic
purpose
and
structure
of
the
MACT
requirements:

[
T]
he
1990
Amendments
established
a
two­
phase
approach
to
promulgating
emission
standards.
The
first
phase
 
at
issue
in
this
case
 
requires
a
technology­
based
approach.
See
42
U.
S.
C.
§
7412(
d).
The
second
phase
occurs
eight
years
later
and
involves
a
risk­
based
approach.
See
id.
§
7412(
f)(
2)(
A)
("
Emissions
standards
promulgated
under
this
subsection
shall
provide
an
ample
margin
of
safety
to
protect
public
health.
.
.
.").
That
risk­
based
analysis
requires
EPA
to
consider,
inter
alia,
public
health
and
adverse
environmental
effects,
id.
 
precisely
what
Sierra
Club
contends
EPA
must
consider
now
with
respect
to
non­
air
quality
impacts.
Sierra
Club's
interpretation
would
collapse
the
technology­
based/
risk­
based
distinction
at
the
heart
of
the
Act,
undermining
the
central
purpose
of
the
1990
Amendments
 
to
facilitate
the
near­
term
implementation
of
emission
standards
through
technology­
based
solutions.
In
doing
so,
that
interpretation
would
reintroduce
the
very
problem
Congress
sought
5
69
Fed.
Reg.
at
45,955
6
to
exorcize
 
that
the
pursuit
of
the
perfect
(
risk­
based
standards)
had
defeated
timely
achievement
of
the
good
(
technology­
based
standards).
6
EPA
should
not,
therefore,
ask
sources
to
embark
on
a
fool's
errand
of
making
their
"
low
risk"
demonstrations
in
the
hopes
that
these
illegal
exemptions
will
survive
judicial
review,
nor
should
the
agency
waste
limited
federal
resources
reviewing
and
approving
these
demonstrations.

1.
EPA
Must
Reconsider
Its
Methodology
For
Classifying
Sources
As
"
Low
Risk."

EPA's
description
of
the
low­
risk
assessment
methods
in
the
proposal
was
vague
and
generic.
As
a
result,
it
was
not
possible
to
provide
meaningful
comments
on
any
aspect
of
the
risk
assessment.
This
low
risk
idea
is
a
new
concept,
and
therefore
a
credible
explanation
of
the
methodology
would
require
a
comprehensive
analysis
of
the:

(
1)
hazard
identification,
exposure
and
dose­
response
methodologies,
(
2)
input
data
to
the
air
dispersion
models,
(
3)
output
data
from
the
models7,
(
4)
appropriateness
of
risk
management
criteria,
(
5)
risk
characterization,
and
(
6)
associated
sensitivity
and
uncertainty
analyses
of
dispersion
modeling,
human
exposure
modeling,
and
quantitative
risk
estimates.

Unfortunately,
EPA's
proposal
did
not
provide
the
key
details
that
would
allow
the
public
to
adequately
comment
upon
what
the
agency
intended
to
do.
This
fundamental
defect
is
evident
when
one
examines
some
of
the
elements
of
the
final
rule's
risk
methodology
 
contained
in
a
brand­
new
appendix
occupying
most
of
six
Federal
Register
pages
 
that
the
proposal
did
not
mention.
To
take
a
few
obvious
examples:

6
Sierra
Club
v.
EPA,
353
F.
3d
976,
990
(
D.
C.
Cir.
2004).
7
EPA
provided
raw
output
data
from
the
models
but
these
are
essentially
meaningless
if
the
methods
and
assumptions
used
to
derive
these
values
are
not
provided.
7
 
EPA's
rule
references
a
website
 
apparently
changeable
at
the
agency's
whim
 
listing
the
relevant
carcinogenic
and
non­
carcinogenic
chronic
risk
factors
for
PCWP
pollutants,
as
well
as
acute
risk
values
for
acrolein
and
formaldehyde.
8
 
The
appendix
contains
detailed
instructions
on
how
monitoring
data
that
do
not
detect
PCWP
pollutants
(
so­
called
"
nondetect
data")
should
be
handled
in
calculations
aimed
at
estimating
the
risks
from
individual
plants.
9
 
The
agency
requires
low
risk
applicants
to
make
highly
specific
assumptions
about
the
species
of
HAPs
they
emit;
in
particular,
they
"
must
assume
that
17
percent
of
.
.
.
total
chromium
.
.
is
chromium
VI
.
.
.[
and]
65
percent
of
.
.
.
total
nickel
.
.
.
is
nickel
subsulfide."
10
This
list
is
a
clear
indication
that
it
was
impracticable
to
raise
substantive
comments
on
the
agency's
risk
assessment
methodology
during
the
period
for
public
comment.
But
this
methodology
is
obviously
centrally
relevant
to
the
final
rule,
as
EPA
expects
nearly
150
sources
to
be
able
to
use
the
process
to
escape
CAA­
mandated
pollution
controls.

EPA's
proposal
itself
characterized
its
original
risk
assessment
repeatedly
as
"
rough."
See,
e.
g.,
68
Fed.
Reg.
at
1297/
3,
1300/
3,
1301/
1.
In
a
September
26,
2003
internal
EPA
briefing
for
Assistant
Administrator
for
Air
&
Radiation,
Jeff
Holmstead,

EPA
staff
bluntly
acknowledged
the
"
legal
issues"
associated
with
the
inadequacy
of
the
proposal's
risk
assessment
in
providing
fair
notice
for
public
comment
purposes:

Opportunity
for
public
comment
NPRM
left
technical
gaps,
including
low­
risk
emission
levels
"
Rough
assessment"
in
NPRM
did
not
provide
findings
under
112(
c)(
9)
Formaldehyde
reassessment
ongoing,
new
info
suggests
higher
risks
September
26,
2003
"
PCWP
 
Risk
in
MACT"
briefing
to
Jeff
Holmstead,
presented
by
Mary
Tom
Kissell,
Dave
Guinnup
&
Mike
Thrift
("
September
26,
2003
PCWP
 
Risk
in
MACT
briefing")
(
attached);
see
also
Dec.
12,
2003
AFPA­
EPA
Meeting
Minutes
(
Assistant
Administrator
Holmstead
acknowledging
legal
concerns
regarding
notice
and
8
40
C.
F.
R.
part
63,
subpart
DDDD,
app.
B,
§
§
4(
b)(
1)
&
(
2).
9
Id.
§
5(
f).
10
Id.
§
5(
g)
8
comment
opportunity
for
risk­
based
approaches,
and
noting
availability
of
petition
for
reconsideration
process
to
address
those
concerns).

Accordingly,
EPA
must
reconsider
its
risk
assessment
methodology,
especially
because,
as
discussed
below,
there
are
a
number
of
particular
elements
of
the
rule
that
are
significantly
flawed
and
must
be
changed
on
reconsideration.

First,
EPA
bases
its
calculations
on
the
average
stack
height
of
sources'
multiple
emission
points.
11
However,
this
approach
may
significantly
understate
the
risks
from
any
given
source.
For
instance,
if
a
source
is
configured
such
that
its
lowest,
but
most
highly­
polluting,
stack
is
located
closest
to
the
facility's
neighbors,
the
risk
to
those
people
may
not
be
reflected
in
a
calculation
that
estimates
risk
by
averaging
with
another
emission
point
that
is
much
taller,
lower­
polluting,
and
farther
away
from
the
population.

Similarly,
EPA
concedes
that
"[
i]
nvariant
facility
parameters
built
into
the
look­
up
tables
are
either
average
values
or
biased
toward
health­
protective
values,
based
on
available
data."
12
Allowing
a
source
to
use
average
values
in
assessing
its
risk
does
not
present
an
accurate
picture
of
the
facility's
danger
and,
more
importantly,
undermines
the
direction
in
section
112'
s
delisting
provision
that
EPA
is
supposed
to
ensure,
for
categories
of
carcinogens,
that
the
"
individual
in
the
population
who
is
most
exposed"
is
protected.

CAA
§
112(
9)(
B)(
i)
(
emphasis
added).

Second,
EPA
concedes
that
its
risk
assessment
methodology
does
not
account
for
the
dangers
posed
by
several
chemicals.
For
example,
EPA
admits
that
its
calculations
will
not
account
for
emissions
of
propionaldehyde,
one
of
the
"
predominant"
HAPs
11
Id.
§
§
6(
b)
&
(
c).
12
69
Fed.
Reg.
at
46,001.
9
emitted
by
PCWP
sources.
13
The
agency's
explanation?
It
lacks
any
current
risk
values
for
the
chemical.
14
EPA's
exemption
methodology
likewise
fails
to
include
propionaldehyde
emissions.
15
Similarly,
EPA's
methodology
would
assign
a
zero
cancer
risk
to
any
HAP
for
which
EPA
has
yet
to
estimate
such
a
value,
even
if
such
HAP
may
well
be
carcinogenic.
16
This
is
a
simply
arbitrary
and
capricious
 
EPA
is
going
to
allow
sources
to
be
called
low
risk
without
having
any
estimate,
much
less
a
full
and
adequate
estimate,
of
their
risks.

Third,
EPA's
methodology
fails
to
account
for
known
and
relevant
differences
between
sources.
"
For
example,
topography
and
weather
patterns
can
trap
pollution
and
prolong
exposure
to
its
deadly
effects.
But
these
and
other
factors
are
not
reflected
in
the
mechanical
process
establish[
ed]
to
exempt
plants
from
emission
controls."
17
Nevertheless,
EPA's
methodology
treats
all
PCWP
plants
as
though
their
local
topography
and
climate
are
identical,
such
that
obvious
and
simple
factors
like
prevailing
winds
are
ignored.
Similarly,
although
different
topographical
features
may
exacerbate
13
Id.
at
45,946.
14
Id.
at
45,995
("
Development
of
an
IRIS
assessment
for
propionaldehyde
is
currently
underway.
Once
available,
it
will
be
used
in
future
risk
analyses.
In
the
meantime,
this
HAP
was
not
included
in
the
assessment
conducted
for
PCWP
affected
sources.").
15
See
40
C.
F.
R.
part
63,
subpart
DDDD,
app.
B,
§
§
4(
b)(
1)
&
(
directing
that
EPA­
listed
values
be
used
for
the
risk
assessment);
U.
S.
EPA,
Table
1,
Prioritized
Dose­
Response
Values,
available
online
at
http://
www.
epa.
gov/
ttn/
atw/
toxsource/
table1.
pdf
(
visited
Sept.
26,
2004)
(
list
of
values
does
not
include
one
for
propionaldehyde).
16
See
Memorandum
from
Scott
Jenkins,
U.
S.
EPA,
to
Dave
Guinnup,
U.
S.
EPA,
"
Risk
Assessment
for
the
Final
Maximum
Achievable
Control
Technology
(
MACT)
Rule
for
the
Plywood
and
Composite
Wood
Products
(
PCWP)
Source
Category,"
at
3
(
Feb.
18,
2004)
("
HAP
were
not
considered
in
the
cancer
risk
analysis
if
there
was
either
no
available
weight
of
evidence
on
potential
human
carcinogenicity
or
there
was
no
adequate
quantitative
potency
estimate.");
id.
at
4­
5,
table
1
(
listing
17
HAPs
for
which
cancer
value
was
not
included);
U.
S.
EPA,
Table
1,
Prioritized
Dose­
Response
Values,
available
online
at
http://
www.
epa.
gov/
ttn/
atw/
toxsource/
table1.
pdf
(
visited
Sept.
26,
2004)
(
listing
several
PCWP
HAPs
without
cancer
risk
value).
17
Environmental
Integrity
Project,
Stacking
the
Deck:
How
EPA's
New
Air
Toxics
Rules
Gamble
with
the
Public's
Health
to
Benefit
Industry
(
May
2004).
10
HAP
exposures,
and
although
PCWP
plants
are
located
at
widely
varying
altitudes
(
see
the
attached
chart),
EPA's
methodology
does
not
take
such
factors
into
account.

Fourth,
by
relying
on
pre­
existing
cancer
potency
estimates,
EPA's
methodology
did
not
adequately
account
for
the
sensitivities
of
children
to
environmental
stressors,

which
further
underestimates
the
cancer
risks
to
exposed
populations.
For
example,
Gary
Ginsberg
of
the
Connecticut
Department
of
Health
found
that
"[
f]
or
the
vast
majority
of
chemicals
that
have
cancer
potency
estimates.
.
.
,
the
underlying
database
is
deficient
with
respect
to
early­
life
exposures.
This
data
gap
has
prevented
derivation
of
cancer
potency
factors
that
are
relevant
to
this
time
period,
and
so
assessments
may
not
fully
address
children's
risks."
18
Dr
Ginsberg
further
found
that
"
short­
term
exposures
in
early
life
are
likely
to
yield
a
greater
tumor
response
than
short­
term
exposures
in
adults,
but
similar
tumor
response
when
compared
to
long­
term
exposures
in
adults.
This
evidence
is
brought
into
a
risk
assessment
context
by
.
.
.
an
approach
that:
(
1)
does
not
prorate
children's
exposures
over
the
entire
life
span
or
mix
them
with
exposures
that
occur
at
other
ages;
(
2)
applies
the
cancer
slope
factor
from
adult
animal
or
human
epidemiology
studies
to
the
children's
exposure
dose
to
calculate
the
cancer
risk
associated
with
the
early­
life
period;
and
(
3)
adds
the
cancer
risk
for
young
children
to
that
for
older
children/
adults
to
yield
a
total
lifetime
cancer
risk."
19
Dr.
Ginsberg's
approach
should
be
included
in
EPA's
analyses,
especially
for
such
ubiquitous
pollutants
as
formaldehyde.

Fifth,
EPA
fails
to
ensure
 
as
the
CAA
requires
 
that
the
"
individual
in
the
population
who
is
most
exposed"
20
to
HAPs
from
PCWP
sources
is
protected
by
its
18
G.
L.
Ginsberg,
"
Assessing
Cancer
Risks
for
Short­
Term
Exposures
in
Children,"
23
Risk
Analysis
19
(
Feb.
2003).
19
Id.
20
42
U.
S.
C.
§
7412(
c)(
9)(
B)(
i).
11
delisting
mechanism.
The
agency's
risk
calculation
depends
upon
the
distance
any
given
source
is
to
the
nearest
residence.
21
That
approach
ignores
the
possibility
that
there
may
be
exposed
people
far
closer
to
the
facility;
to
take
a
simple
example,
if
the
nearest
residence
is
two
miles
away,
but
a
school
abuts
a
PCWP
property
line,
EPA
allows
the
source
to
base
its
risk
estimates
on
the
distance
to
the
residence
rather
than
the
school.

Similarly,
EPA
does
not
explain
why
a
person
beyond
the
facility
fenceline
should
be
the
focus
of
a
risk
inquiry,
when
it
is
perfectly
reasonable
to
believe
that
the
most
exposed
individual
is
a
person
who
actually
works
at
the
PCWP
plant.

Finally,
EPA
gives
sources
the
ability
to
make
source­
specific
demonstrations
with
a
number
of
open­
ended
criteria
giving
sources
tremendous
freedom
to
decide
exactly
how
to
characterize
the
risks
from
their
plants.
For
instance,
the
agency's
risk
assessment
appendix
says
that
a
source
"
may
use
any
scientifically
accepted
peerreviewed
assessment
methodology
for
[
its]
site­
specific
risk
assessment."
22
Likewise,

sources
are
instructed
to
"[
u]
se
health­
protective
default
assumptions
wherever
sitespecific
data
are
not
available."
23
Thus,
the
owner
of
the
source
seeking
the
exemption
has
extreme
control
over
how
to
assess
its
risks,
and
the
agency
provides
few
bounds
on
its
discretion
to
approve
such
assessments
as
sufficiently
"
scientifically
accepted"
or
"
health
protective,"
yielding
an
arbitrary
and
capricious
rule.

2.
EPA
Must
Reconsider
Its
Failure
To
Require
Sources
to
Account
for
Background
Pollution
and
Co­
Located
Sources.

21
40
C.
F.
R.
part
63,
subpart
DDDD,
app.
B,
tables
3
&
4.
22
40
C.
F.
R.,
part
63,
subpart
DDDD,
app.
B,
§
7(
a).
23
Id.
at
§
7(
b)(
6).
12
EPA's
final
rule
allows
sources
to
demonstrate
that
they
are
supposedly
"
low
risk"
by
examining
the
risks
caused
by
emissions
from
the
PCWP
facilities
themselves,

but
ignoring
risks
from
other
HAP
sources
located
at
the
same
plant
site
(
so
called
"

colocated
sources),
as
well
as
those
from
background
ambient
HAP
concentrations.
24
As
a
consequence,
a
facility
with
both
PCWP
manufacturing
equipment
and
other
HAPemitting
units,
located
in
an
area
with
high
background
concentrations
of
HAPs,
could
pose
a
significant
risk
to
its
neighbors,
yet
still
be
exempted
from
MACT
as
"
low
risk."

This
decision
is
centrally
relevant
to
how
the
rule's
exemptions
will
work
and,
as
discussed
below,
is
both
unlawful
and
unreasonable.

EPA
made
clear
in
the
proposal
that
such
risks
from
background
pollution
and
colocated
sources
must
be
included
in
a
credible
assessment
of
whether
PCWP
facilities
pose
an
unacceptable
risk
to
the
public.
First,
EPA
explained
that
it
would
use
the
concept
of
a
hazard
index
(
HI)
to
quantify
the
risk
from
a
plant
 
an
HI
is
the
sum
of
several
individual
hazard
quotients
(
HQs),
and
a
hazard
quotient
for
any
given
HAP
is
"
the
estimated
concentration
[
of
a
HAP]
in
air
at
a
location
where
people
could
be
exposed
.
.
.
[
divided]
by
the
pollutant's
inhalation
Reference
Concentration
(
RfC)."
25
Second,
EPA
sought
comment
on
a
range
of
HI
values
that,
if
exceeded
at
any
particular
plant,
would
indicate
an
unacceptable
risk
posed
by
one
or
more
HAP
emissions
affecting
a
given
health
endpoint.
According
to
the
agency,
HI
"
values
below
one
would
generally
be
considered
to
be
without
appreciable
risk
of
adverse
health
effects,
and
values
above
24
Id.
§
3
("
You
are
not
required
to
include
process
units
outside
of
the
affected
source
in
the
low­
risk
demonstration.");
69
Fed.
Reg.
at
45,998
("
For
the
purposes
of
this
rulemaking,
we
are
not
considering
background
HAP
emissions
as
part
of
the
CAA
section
112(
c)(
9)
delisting
of
the
low­
risk
PCWP
subcategory.").
25
68
Fed.
Reg.
at
1,298.
13
one
would
generally
be
cause
for
concern."
26
Third,
EPA
recognized
that
simply
ensuring
that
the
risks
caused
by
PCWP
sources
themselves
were
below
an
HI
of
one
 
without
accounting
for
other
sources
of
exposure
 
would
be
underprotective.
The
agency
stated:

One
option
is
to
allow
the
hazard
index
posed
by
all
threshold
HAP
emitted
from
PCWP
sources
at
the
facility
to
be
no
greater
than
one.
This
approach
is
protective
if
no
additional
threshold
HAP
exposures
would
be
anticipated
from
other
sources
in
the
vicinity
of
the
facility
or
through
other
routes
of
exposure
(
e.
g.,
through
ingestion).
27
Thus,
EPA
believed
that
an
HI
limit
of
one
could
only
defensibly
"
protect
public
health
with
an
ample
margin
of
safety,"
as
EPA
is
required
to
do
before
de­
listing
a
source
category,
28
if
there
are
no
other
sources
of
risk.
However,
in
the
final
rule,
EPA
decided
to
use
an
HI
limit
of
one,
but
did
not
require
sources
to
account
for
background
pollution
or
emissions
from
co­
located
source,
thus
failing
to
ensure
 
on
the
agency's
own
terms
 
that
sources
are
truly
low
risk.
By
doing
so,
the
agency
adopted
an
arbitrary
and
capricious
procedure.

The
lungs
do
not
distinguish
formaldehyde
pollution
from
PCWP
facilities
from
that
caused
by
other
plants
or
mobile
sources.
If
the
existing
ambient
concentration
of
a
particular
pollutant
is
at
or
near
the
safe
level,
additional
sources
of
the
pollutant
can
push
the
exposure
over
the
threshold.
Thus,
because
many
of
the
HAPs
emitted
from
PCWP
facilities
are
found
ubiquitously
in
the
ambient
air
in
the
U.
S.,
EPA
must
take
background
concentrations
into
account
when
evaluating
the
risks
associated
with
a
facility
that
emits
HAPs.
The
two
maps
below,
which
reflect
modeling
performed
for
EPA's
National
Air
Toxics
Assessment,
illustrate
this
point.
For
formaldehyde,
for
26
Id.
27
Id.
at
1,299.
28
See
42
U.
S.
C.
§
7412(
c)(
9)(
B).
14
example,
outdoor
concentration
estimates
were
greater
than
the
cancer
benchmark
concentrations
in
over
90
percent
of
the
census
tracts.
Approximately
200
census
tracts
had
modeled
air
pollution
levels
over
100
times
the
benchmark.
15
In
addition
to
being
unreasonable,
EPA's
proposal
violates
the
Clean
Air
Act.

The
authors
of
the
MACT
and
delisting
provisions
at
issue
in
this
rule
made
clear
that
they
intended
all
co­
located
sources
of
HAPs
to
be
included
when
the
agency
made
riskbased
decisions.
The
legislative
history
of
the
1990
Clean
Air
Act
amendments
explains
Congressional
intent
in
crafting
the
HAP
provisions,
and
Senator
Durenberger
addressed
this
issue
directly,
saying,
"[
o]
ur
intent
is
that
the
public
will
be
protected
with
`
an
ample
margin
of
safety'
from
the
combined
health
risks
of
all
the
pollutants
emitted
by
an
entire
major
source."
29
He
explained
why
this
principle
is
important,
in
the
context
of
29
Senate
Debate
on
Conference
Report
(
October
27,
1990),
reprinted
in
``
A
Legislative
History
of
the
Clean
Air
Act
Amendments
of
1990,''
Comm.
Print
S.
Prt.
103
 
38
(
1993)
at
868.
16
discussing
residual
risk
standards
under
section
112(
f)
of
the
Act,
which
 
like
section
112(
c)(
9)
 
uses
the
"
ample
margin
of
safety"
standard:

People
are
not
exposed
in
isolation
to
pollution
from
parts
of
a
major
source;
they
are
exposed
to
all
the
pollution
from
the
entire
major
source.
It
is
the
managers'
intent
that
residual
risk
standards
shall
be
sufficient
to
protect
the
most
exposed
person
with
an
ample
margin
of
safety
from
the
combined
hazardous
emissions
of
an
entire
major
source.
*
*
*
This
means
that
the
residual
risk
standards
for
each
source
category
must
be
set
at
a
level
sufficient
to
assure
that
the
risks
from
the
emissions
of
sources
in
that
category,
combined
with
the
risks
from
the
emissions
of
other
sources
that
are
located
together
within
a
major
source,
are
below
the
"
ample
margin
of
safety"
level.
30
Moreover,
the
Senator
made
clear
that
the
same
principle
should
apply
to
delisting
decisions
under
section
112(
c)(
9),
saying
that
"
the
[
bill]
managers
intend
EPA
to
use
the
same
entire
site
approach
when
reviewing
petitions
to
remove
a
source
category
from
the
list
of
source
categories
under
subsection
(
c).
.
.
."
31
3.
EPA
Must
Reconsider
Its
Assessment
of
the
Carcinogenicity
of
Formaldehyde.

In
proposing
the
risk­
based
exemption
idea,
EPA
indicated
that
it
would
use
risk
estimates
from
the
agency's
toxicological
database
 
the
Integrated
Risk
Information
System
(
IRIS)
 
to
calculate
whether
a
given
source
is
"
low­
risk"
or
not.
32
In
so
doing,

EPA
noted
that
the
unit
risk
estimate
(
which
the
agency
explains
is
"
defined
as
the
upperbound
excess
lifetime
cancer
risk
estimated
to
result
from
continuous
exposure
to
an
agent
at
a
concentration
of
1
µ
g/
m3
in
air")
in
IRIS
for
formaldehyde
is
1.3
x
10­
5.

Indeed,
the
value
in
IRIS
today
is
the
same.
33
In
the
final
rule,
however,
EPA
relied
on
a
30
Id.
31
Id.
at
869.
32
See
68
Fed.
Reg.
at
1,298­
1,300.
33
See
id.
at
1,298
&
Table
2
(
discussing
EPA's
plan
to
use
IRIS
values
and
listing
IRIS
values
for
HAPs
emitted
by
PCWP
facilities);
U.
S.
EPA,
Integrated
Risk
Information
System,
Formaldehyde
(
CASRN
50­
00­
0),
available
online
at
http://
www.
epa.
gov/
iris/
subst/
0419.
htm#
carc
(
visited
Sept.
20,
2004)
(
providing
unit
risk
estimate
for
formaldehyde).
17
value
of
5.5
x
10­
9,
which
was
derived
by
the
CIIT
Centers
for
Health
Research
(
previously
the
Chemical
Industry
Institute
of
Toxicology)
34
using
a
model
that
estimated
the
carcinogenic
effects
of
formaldehyde
on
the
respiratory
system,
and
the
basis
for
which
does
not
appear
to
be
available
in
the
docket
of
this
rulemaking
during
the
period
for
public
comment.
35
In
short,
between
the
proposed
and
final
rules,
EPA
decided
that
formaldehyde
was
99.96
percent
less
potent
than
it
previously
believed,
and
based
its
judgment
on
information
that
the
public
did
not
have
an
adequate
opportunity
to
evaluate.

The
agency's
decision
 
which
obviously
is
centrally
relevant
to
this
rulemaking
 
is
irrational
and
must
be
reconsidered,
both
because
recent
studies
link
formaldehyde
to
cancers
other
than
those
evaluated
by
CIIT,
and
because
the
CIIT
evaluation
is
limited
in
a
number
of
important
ways.

First,
although
the
CIIT
model
is
limited
to
considerations
of
cancers
of
the
nasal
cavity
of
adults,
and
cannot
model
cancers
of
blood
or
bone,
recent
epidemiology
studies
by
the
National
Cancer
Institute
(
NCI)
and
the
National
Institute
of
Occupational
Safety
and
Health
(
NIOSH)
report
on
a
dose­
and
duration­
dependent
excess
of
myeloid
leukemia
among
workers
exposed
to
formaldehyde.
Both
the
NCI
and
NIOSH
studies
applied
rigorous
scientific
methods,
and
were
published
in
respected
scientific
journals.

The
NCI
study
reported
on
a
follow­
up
of
a
cohort
of
industrial
workers
to
evaluate
the
34
CIIT's
founding
and
current
Board
of
Directors
includes
representatives
from:
Air
Products
and
Chemicals,
Inc.,
ExxonMobil
Chemical
Co.,
Dow
Chemical
Co.,
Eastman
Kodak
Co.,
and
DuPont.
(
http://
www.
ciit.
org/
about/
board_
directors.
asp).
CIIT's
core
research
program
is
sponsored
by
the
American
Chemistry
Council,
the
trade
association
for
chemical
manufacturers.
(
http://
www.
ciit.
org/
about/
leadership.
asp)
35
See
69
Fed.
Reg.
at
49,993­
94
(
discussing
EPA
choice
of
CIIT
value);
id.
at
46,040
(
Appendix
B,
EPA's
risk
assessment
methodology,
refers
to
EPA
website
for
unit
risk
estimates);
U.
S.
EPA,
Table
1,
Prioritized
Dose­
Response
Values,
available
online
at
http://
www.
epa.
gov/
ttn/
atw/
toxsource/
table1.
pdf
(
visited
Sept.
20,
2004)
(
providing
unit
risk
estimates
for
various
HAPs,
including
formaldehyde).
18
association
between
formaldehyde
and
lymphohematopoietic
cancers.
36
The
cohort
consisted
of
25,619
workers
employed
before
1966,
and
followed
through
1994.
They
analyzed
formaldehyde
exposure
(
peak
exposure,
average
exposure
intensity,
cumulative
exposure,
and
duration
of
exposure)
and
mortality
from
lymphohematopoietic
malignancies.
They
report
that
relative
risks
for
leukemia
(
69
deaths),
particularly
for
myeloid
leukemia
(
30
deaths),
increased
with
formaldehyde
exposure.
When
compared
to
workers
exposed
to
low
peak
levels
of
formaldehyde
(
0.1­
1.9
ppm),
exposure
to
peak
levels
of
2­
3.9
ppm
increased
the
risk
of
myeloid
leukemia
almost
2.5­
fold
(
RR=
2.43,

95%
CI
=
0.81
to
7.25),
and
exposure
to
peak
levels
above
4
ppm
increased
the
risk
3.5­

fold
(
RR
=
3.46,
95%
CI
=
1.27
to
9.43).
37
Similarly,
NIOSH
reported
on
the
updated
results
of
a
mortality
study
of
a
cohort
of
garment
workers
exposed
to
formaldehyde.
38
The
cohort
consisted
of
11,039
workers
exposed
to
formaldehyde
for
three
months
or
more,
from
three
separate
garment
plants.

Formaldehyde
was
first
introduced
into
the
manufacturing
process
in
the
mid­
to
late
1950'
s,
when
exposures
were
likely
to
be
highest.
The
mean
time­
weighted
average
(
TWA)
formaldehyde
exposure
in
the
1980'
s
was
0.15
ppm,
and
ranged
from
0.09­
0.20
ppm,
within
the
legal
allowable
levels
under
the
current
OSHA
standard
of
0.75
ppm
TWA
(
the
8­
hour
time­
weighted
average
is
not
to
exceed
0.75
ppm).
The
authors
report
an
almost
two­
fold
increase
in
multiple­
cause
mortality
(
this
includes
both
underlying
36
Hauptmann
M,
Lubin
JH,
Stewart
PA,
Hayes
RB,
Blair
A.
Mortality
from
lymphohematopoietic
malignancies
among
workers
in
formaldehyde
industries.
J
Natl
Cancer
Inst.
2003
Nov
5;
95(
21):
1615­
23.
37
Interestingly,
these
authors
report
that
risk
for
leukemia
was
associated
with
peak
exposures
to
formaldehyde,
and
weakly
with
duration,
but
not
with
cumulative
exposure.
The
authors
suggest
that
duration
as
a
measure
of
exposure
may
be
problematic
because
it
assumes
a
constant
exposure
rate
for
all
jobs
over
time,
which
was
not
the
case,
and
may
therefore
be
poorly
correlated
with
the
true
cumulative
dose.
38
Pinkerton
LE,
Hein
MJ,
Stayner
LT.
2004.
Mortality
among
a
cohort
of
garment
workers
exposed
to
formaldehyde:
an
update.
Occup
Environ
Med,
March
(
in
press).
19
and
contributory
causes
of
death)
from
myeloid
leukemia
among
workers
with
10
or
more
years
of
exposure
(
9
deaths,
SMR
=
2.12,
95%
CI
=
0.78
to
4.62),
and
among
workers
after
20
years
since
their
first
exposure
(
15
deaths,
SMR
=
2.02,
95%
CI
=
1.13
to
3.34).
The
greatest
risk
of
multiple
myeloma
was
observed
among
workers
who
were
employed
during
the
earliest
study
time
period
(
prior
to
1963),
when
they
likely
would
have
been
exposed
to
the
highest
levels
of
formaldehyde.
The
observation
that
leukemia
shows
both
a
dose­
response
and
a
temporal
trend
with
formaldehyde
exposure
supports
a
causal
relationship.
39
In
June
2004,
the
International
Agency
for
Research
on
Cancer
(
IARC),
part
of
the
World
Health
Organization,
convened
two
dozen
top
scientists
from
10
countries
to
evaluate
all
the
available
evidence
on
the
carcinogenicity
of
formaldehyde,
including
the
NIOSH
and
NCI
epidemiology
studies
and
the
CIIT
evaluations.
The
scientists
concluded
that
formaldehyde
is
carcinogenic
to
humans.
In
addition
to
evidence
of
nasopharyngeal
cancers,
the
working
group
also
found
"
strong
but
not
sufficient
evidence"
for
leukemia.
The
finding
for
leukemia
reflects
the
"
epidemiologists'
finding
of
strong
evidence
in
human
studies,"
predominantly
the
NIOSH
and
NCI
studies,
but
an
inability
to
identify
a
mechanism
of
leukemia
cancer
with
the
data
available
at
this
time.
40
The
evidence
for
leukemia
associated
with
formaldehyde
exposures
at
currently
allowable
levels
in
the
workplace
is
strong
and,
while
additional
research
will
be
more
39
The
authors
suggest
that
mortality
studies
that
do
not
distinguish
between
lymphocytic
and
myeloid
leukemia
types
may
underestimate
the
risk
from
formaldehyde­
related
cancers.
Both
leukemia
types
are
relatively
rare;
incidence
for
each
type
is
approximately
5.5
per
100,000
Americans.
The
U.
S.
five­
year
survival
rate
for
lymphocytic
leukemia
in
adults
is
over
70
percent,
whereas
the
survival
rate
for
myeloid
leukemia
ranges
from
19
percent
(
acute)
to
35
percent
(
chronic).
Studies
that
measure
mortality,
without
distinguishing
between
types,
may
therefore
not
be
a
sufficiently
sensitive
to
detect
an
effect
of
formaldehyde
on
myeloid
leukemia,
which
is
much
more
deadly.
It
is
possible
that
elevated
mortality
from
myeloid
leukemia
may
have
been
overlooked
in
studies
that
considered
all
types
of
leukemia
combined.
40
International
Agency
for
Research
on
Cancer.
IARC
classifies
formaldehyde
as
carcinogenic
to
humans.
Press
Release
No.
153.
World
Health
Organization
June
15,
2004.
20
informative,
it
is
scientifically
and
morally
unacceptable
to
await
an
increase
in
deaths
from
cancers
before
acting
to
limit
exposures
to
men,
women,
and
children
from
this
known
human
carcinogen.

Notwithstanding
the
findings
of
reputable
epidemiologists
regarding
the
risks
leukemia
from
formaldehyde
exposure,
EPA's
final
rule
does
not
discuss
the
new
results,

except
in
the
most
opaque
fashion,
pledging
to
review
"
recently
published
epidemiological
studies"
when
reassessing
the
carcinogenic
properties
and
potency
of
formaldehyde
at
some
undefined
future
date.
41
Meanwhile,
according
to
published
reports,
"[
a]
n
internal
EPA
calculation
showed
that
taking
the
new
studies
into
consideration
would
keep
the
formaldehyde
risk
assessment
close
to
the
long­
standing
EPA
[
IRIS]
level."
42
Thus,
EPA's
wait­
until­
another­
day
approach
is
simply
irresponsible
and
unreasonable
in
view
of
these
observations
and
the
fact
that
formaldehyde­
associated
cancers
of
blood
and
bone
are
evident
in
studies
of
exposed
workers.
In
separate
studies,
leukemia
excesses
have
been
observed
in
certain
professional
groups
(
anatomists,
embalmers,
pathologists)
exposed
to
formaldehyde.

Research
also
has
shown
that
formaldehyde
causes
genetic
changes
in
circulating
blood
lymphocytes
in
exposed
workers.
In
fact,
the
available
studies
do
not
provide
adequate
information
to
rule
out
a
linear
low­
dose
curve
for
effects;
that
is,
even
low­
dose
exposure
levels
could
well
be
associated
with
some
increased
risk
of
cancer
among
sensitive
populations
such
as
children.

Second,
the
CIIT
model
fails
to
address
a
number
of
basic
issues
essential
to
properly
characterizing
formaldehyde's
cancer­
causing
potential.
For
instance,
CIIT's
41
69
Fed.
Reg.
at
45,994.
42
Tom
Hamburger
&
Alan
C.
Miller,
EPA
Relied
on
Industry
for
Plywood
Plant
Pollution
Rule,
Los
Angeles
Times
(
May
21,
2004).
21
approach
does
not
capture
sensitive
populations,
such
as
children.
It
is
based
on
adult
breathing
rates
and
adult
physiology.
In
addition,
the
CIIT
model
is
based
on
the
assumption
that
formaldehyde
is
a
highly­
reactive
site­
of­
contact
carcinogen.
This
means
that
the
model
cannot
rule
out
other
modes
of
action.
The
model
is
also
based
on
very
small
samples.
The
human­
extrapolation
component
of
the
model
is
based
on
only
one
human
nose,
whereas
human
nasal
anatomy
is
highly
variable.
It
cannot
capture
various
air­
flow
and
uptake
patterns
inherent
in
the
highly
variable
nasal
anatomy,

especially
considering
exposures
to
children.
Additionally,
the
model
assumes
that
no
formaldehyde
reaches
the
blood
circulation,
without
any
definitive
data
to
support
this
assumption.

The
CIIT
model
and
its
results
do
not
provide
a
sufficient
basis
for
EPA
to
make
regulatory
decisions
concerning
formaldehyde.
Indeed,
just
this
year,
in
response
to
an
industry
request
to
re­
open
a
prior
risk
assessment
for
formaldehyde
using
the
CIIT
analysis,
a
scientific
review
panel
of
the
California
Air
Resources
Board
concluded
that
"
that
there
is
not
sufficient
new
scientific
data
to
support
the
petition
to
formally
reopen
the
prior
risk
assessment
on
formaldehyde."
43
Likewise,
a
joint
Health
Canada/
U.
S.
EPA
External
Peer
Review
Workshop
on
formaldehyde
in
1998
expressed
concern
that
they
were
not
provided
with
adequate
documentation
to
conduct
a
proper
review,
noting
that
"[
i]
t
would
have
been
very
difficult
to
conduct
an
adequate
review
based
on
the
existing
documentation.
Obviously,
it
is
imperative
that
the
document
be
completed
with
clear
43
California
Air
Resources
Board,
Meeting
Transcript,
Scientific
Review
Panel
on
Toxic
Air
Contaminants,
at
70
(
May
19,
2004),
available
online
at
http://
www.
arb.
ca.
gov/
srp/
051904.
pdf
(
visited
Sept.
21,
2004);
see
also
Hamburger
&
Miller,
EPA
Relied
on
Industry
for
Plywood
Plant
Pollution
Rule
("
a
California
scientific
advisory
panel
voted
unanimously
this
week
to
reject
a
formaldehyde
industry
request
to
reconsider
the
state's
risk
assessment
of
the
toxic
gas.
Panel
members
said
the
chemical
institute's
model
needed
further
development
and
validation.").
22
(
transparent)
presentation.
.
.
."
44
Moreover,
the
1998
panel
raised
a
number
of
significant
concerns
with
the
model,
identifying
several
sources
of
uncertainty.
For
instance,
the
panel
highlighted
the
effects
of
"
intersubject
variations
in
nasal
geometry."

That
is,
everyone
has
a
different
nose,
but
the
model
is
based
on
only
one
adult
nose
 
which
represents
a
big
potential
source
of
error,
and
which
leaves
cancer
risks
to
children
completely
unconsidered.
The
panel
recommended
that
future
iterations
of
this
model
incorporate
a
"
more
realistic
multi­
compartment
toxicokinetic
tissue
model"
when
considering
the
dose
metrics,
simulate
the
"
unsteady
nature
of
nasal
flow",
and
consider
the
effects
of
"
intersubject
variations
in
nasal
geometry."
45
The
panel
also
"
strongly
encouraged"
CIIT
to
make
"
some
attempt
to
describe
the
uncertainty
associated
with
projections
of
risk."
46
The
peer
review
report
states
that
it
anticipates
revisions
by
CIIT
in
response
to
the
concerns
raised
by
the
peer
review
panel,
and
then
expects
"
additional
more
focused
peer
review
and
revision
to
ensure
that
recommendations
of
the
Peer
Review
Panel
have
been
adequately
addressed
and
that
documentation
of
the
proposed
approaches
is
adequate.
.
.
."
47
To
our
knowledge,
additional
peer
review
was
never
completed,
and
thus
there
is
no
evidence
that
the
concerns
of
the
panel
were
adequately
addressed,
or
that
any
scientific
peer
review
of
the
final
iteration
of
the
CIIT
model
was
done.

4.
EPA
Must
Reconsider
Its
Exemptions
in
Light
of
Evidence
That
They
Will
Impose
Net
Costs
on
Public
Health.

44
Health
Canada
&
U.
S.
EPA,
Report
of
External
Peer
Review
Workshop
on
Formaldehyde,
at
5
(
March
18­
20,
1998)
(
attached).
45
Id.
at
11
46
Id.
at
14
47
Id.
at
20.
23
EPA's
failure
to
provide
accurate
or
complete
information
in
the
proposed
rule
gave
no
notice
of
the
exemptions'
net
cost
to
public
health.
Furthermore,
the
limited
information
available
in
the
record
makes
clear
that
the
exemptions
in
the
final
rule
will
cost
the
public
significantly
more
than
it
will
save
the
plywood
industry.
In
the
proposed
rule,
EPA
stated
that
with
the
proposed
exemptions,
as
many
as
33
of
223
facilities
potentially
subject
to
the
rule
might
qualify
for
an
exemption
from
the
rule
because
they
did
not
exceed
an
undefined
"
low
risk"
threshold.
48
In
the
proposed
rule
and
accompanying
Regulatory
Impact
Analysis
the
Agency
provided
no
background
data
on
the
impact
these
exemptions
would
have
on
emissions,
health
risks,
costs
or
benefits,
or
any
other
indicators.
49
In
the
final
rule,
EPA
more
than
quadrupled
its
high­
end
estimate
of
the
number
of
facilities
that
would
qualify
for
the
"
low
risk"
exemptions,
stating
that,
"
eventually
as
many
as
147
of
the
223
major
source
PCWP
facilities
may
demonstrate
eligibility
for
the
low­
risk
subcategory. "
50
"
Appendix
A"
of
the
Regulatory
Impact
Analysis
accompanying
the
final
rule
includes
some
discussion
of
the
net
emissions
impact
and
the
relative
costs
and
benefits
of
exempting
most
plywood
manufacturers
from
the
rule's
emission
control
requirements.
51
Because
Appendix
A
appears
to
have
been
lifted
verbatim
from
the
preamble
to
the
final
rule,
and
the
assumptions
underlying
emission
48
68
Fed.
Reg.
at
1,301.
49
See
68
Fed.
Reg.
at
1,295­
1,303;
id.
at
1,305
("
We
did
not
estimate
health
and
welfare
benefits
associated
with
changes
in
emissions
of
HAP,
CO,
VOC,
OM,
NOx
and
SO2
for
this
proposed
rule.");
Regulatory
Impact
Analysis
of
the
Proposed
Plywood
and
Composite
Wood
Products
NESHAP,
Final
Report,
August,
2002,
available
at
www.
docket.
epa.
gov,
Docket
number,
OAR­
2003­
0048
(
visited
Sept.
27,
2004).
50
69
Fed.
Reg.
at
45,955
51
See,
"
Appendix
A:
Summary
of
Impacts
Associated
with
the
Delisted
Low­
Risk
Subcategory",
Regulatory
Impact
Analysis
for
the
Plywood
and
Composite
Wood
Products
NESHAP,
Final
Report
(
EPA­
452/
R­
04­
005),
February,
2004
[
hereinafter,
Final
Regulatory
Impact
Analysis],
available
at
www.
docket.
epa.
gov,
Docket
number,
OAR­
2003­
0048
(
visited
Sept.
27,
2004).
24
estimates
are
not
adequately
explained,
it
is
not
clear
that
EPA
has
actually
conducted
an
independent
and
in­
depth
review
of
the
impact
of
the
exemptions
it
has
adopted.
52
It
is
clear
that,
even
when
relying
on
EPA's
own
sketchy
assumptions,
the
public
health
costs
associated
with
exempting
so
many
plywood
plants
from
the
statutory
requirement
to
reduce
hazardous
air
pollution
will
outweigh
any
potential
savings
to
the
regulated
industry.
EPA's
Final
Regulatory
Impact
Analysis
estimates
that
plywood
manufacturers
would
face
annual
compliance
costs
of
$
140
million
per
year
at
most,
if
all
facilities
potentially
subject
to
the
rule
were
required
to
comply.
53
With
the
"
low
risk"

exemptions
EPA
has
proposed,
industry­
wide
compliance
costs
are
expected
to
drop
to
$
74
million,
for
a
net
annual
savings
of
$
66
million.
54
How
does
this
compare
to
the
higher
levels
of
emissions
that
will
result
if
two­
thirds
of
plywood
manufacturers
are
exempt
from
the
standards?

The
preamble
to
the
rule
admits
that
the
exemptions
could
increase
HAP
emissions
by
66
percent,
or
4,400
tons
per
year,
when
compared
to
requiring
all
plants
to
meet
pollution
control
requirements.
55
The
preamble
also
acknowledges
that
exposure
to
the
HAPs
released
by
the
plywood
industry
have
also
been
linked
to
extensive
noncancer
health
effects,
such
as
genotoxicity,
neurotoxicity,
cardiovascular
impairment,
blood
disorders,
and
reproductive
and
developmental
effects.
56
The
Regulatory
Impact
52
See,
Part
III
of
preamble
to
final
rule,
69
Fed.
Reg.
at
45,955­
958,
which
is
identical
to
Appendix
A
of
the
Final
Regulatory
Impact
Analysis.
53
69
Fed.
Reg.
at
45,957.
54
Id.
EPA
notes
that
"[
O]
ur
cost
estimates
are
likely
to
be
overstated
as
we
anticipate
that
owners
and
operators
will
take
advantage
of
available
cost
saving
opportunities."
69
Fed.
Reg.
at
45,956­
57.
55
69
Fed.
Reg.
at
45,956.
56
See
Table
3,
"
Unquantified
effects
categories
associated
with
HAP,"
69
Fed.
Reg.,
at
45,957.
25
Analysis
for
the
Final
Rule
did
not
assign
an
economic
value
to
these
very
serious
health
impacts.
57
Nevertheless,
control
of
hazardous
air
pollutants
at
plywood
plants
also
yields
significant
additional
collateral
benefits
by
reducing
emissions
of
other
forms
of
pollution,
such
as
volatile
organic
compounds
and
fine
particulate
matter.
For
example,

EPA
estimates
that
if
all
plants
were
required
to
comply,
the
rule
would
reduce
emissions
of
particulate
matter
by
12,000
tons
a
year,
and
emissions
of
volatile
organic
compounds
by
27,000
tons
per
year.
58
With
the
exemptions
granted
under
the
final
rule,
these
emission
reductions
could
be
cut
in
half,
as
particulate
matter
emissions
would
decline
by
as
few
as
5,900
tons
per
year,
and
VOC
emissions
by
only
14,000
tons
per
year.
59
In
other
words,
exempting
two­
thirds
of
plywood
plants
from
the
rule's
pollution
control
requirements
would
permit
higher
particulate
matter
emissions
by
6,100
tons
per
year,

and
VOC
emissions
by
13,000
tons
annually,
when
compared
to
requiring
all
such
sources
to
comply.
60
The
Office
of
Management
and
Budget
(
OMB)
has
recognized
and
published
estimates
of
the
cost
to
the
public
health
associated
with
exposure
to
each
ton
of
particulate
matter
or
VOC.
For
example,
OMB's
2004
draft
report
to
Congress
on
the
costs
and
benefits
of
federal
regulation
values
the
benefits
of
reducing
VOCs
at
between
$
600
and
$
2,700
per
ton,
and
each
ton
of
particulate
matter
at
from
$
10,000
to
$
100,000
per
ton.
61
Although
it
is
not
clear
why,
EPA
did
not
attempt
to
quantify
the
public
health
57
Final
Regulatory
Impact
Analysis,
at
6­
7,
6­
8.
58
69
Fed.
Reg.
at
45,956.
59
Id.
60
Id.
61
"
Informing
Regulatory
Decisions:
2004
Draft
Report
to
Congress
on
the
Costs
and
Benefits
of
Federal
Regulations
and
Unfunded
Mandates
on
State,
Local,
and
Tribal
Entities,"
(
Draft
OMB
Report)
at
34,
available
at
www.
whitehouse.
gov/
omb/
inforeg/
draft_
2004_
cbreport.
pdf,
(
visited
Sept.
24,
2004).
26
costs
associated
with
higher
increases
of
these
pollutants
in
the
preamble
to
the
final
rule.
62
But
even
using
the
lowest
end
of
the
monetized
benefits
published
by
OMB,
the
value
of
reducing
VOC
and
particulate
matter
emissions
from
all
plywood
plants
exceeds
the
amount
industry
would
save
under
the
exemptions
in
the
final
rule.
63
These
net
benefits
are
realized
without
taking
into
account
any
additional
public
benefit
from
reducing
exposure
to
noncancer
health
risks
that
neither
EPA
nor
OMB
could
monetize.

The
preamble
to
the
final
rule
attempts
to
justify
the
exemptions
in
part
because
EPA
estimated
that
requiring
all
plywood
plants
to
reduce
hazardous
air
pollutants
would
result
in
incidental
increases
in
nitrogen
oxide
(
NOx)
emissions.
64
EPA
arbitrarily
makes
no
attempt
to
compare
this
potential
increase
to
the
additional
emissions
of
HAPs,
VOCs,

and
particulate
matter
that
would
result
from
the
exemptions.
But
once
again,
the
available
evidence
suggests
that
the
NOx
increases
are
relatively
trivial,
especially
when
compared
to
the
additional
pollution
authorized
by
the
rule's
exemptions.

According
to
EPA,
the
regenerative
thermal
oxidizers
that
are
the
principal
means
of
controlling
hazardous
air
pollutants
at
plywood
plants
would
release
an
62
69
Fed.
Reg.
at
45,958.
EPA
did
note
that
while
it
had
not
monetized
the
benefits
of
reducing
particulate
matter
under
the
rule,
"
these
reductions
are
likely
to
have
significant
health
benefits
to
populations
living
in
the
vicinity
of
affected
sources."
Id.
63
EPA
projects
the
exemptions
will
increase
VOC
emissions
13,000
tons
per
year,
and
particulate
matter
emissions
6,100
tons
per
year.
13,000
tons
x
$
600
per
ton
=
$
7.8
million,
and
6,100
tons
x
$
10,000
per
ton
=
$
61
million,
for
a
total
annual
public
health
cost
of
$
68.8
million.
As
discussed
earlier,
EPA
expects
the
exemptions
will
save
industry
no
more
than
$
66
million
in
annual
compliance
costs.
Using
the
higher­
end
OMB
benefit
estimates
for
VOCs
($
2,700
per
ton)
and
particulate
matter
($
100,000
per
ton),
the
foregone
benefits
of
the
VOC
reductions
wrought
by
the
exemptions
would
be
$
35.1
million,
and
$
610
million
for
the
foregone
benefits
of
particulate
matter
reductions.
This
estimated
total
annual
public
health
cost
of
$
645.1
million
would
outweigh
industry's
annual
compliance
costs
by
nearly
ten
to
one.
64
69
Fed.
Reg.
at
45,956.
The
preamble
also
discusses
the
possibility
of
small
additional
increases
of
nitrogen
oxide
and
sulfur
dioxide
pollution
from
power
plants,
due
to
the
increased
electricity
demand
associated
with
the
pollution
controls
the
rule
would
require
at
plywood
plants.
But
the
Clean
Air
Act
rules
impose
a
ceiling
on
power
plant
emissions
in
most
states,
and
the
Agency's
own
Regulatory
Impact
Analysis
notes
that
these
increases
are
unlikely
to
occur.
Final
Regulatory
Impact
Analysis,
at
A­
3.
27
estimated
2,400
annual
tons
of
NOx
­­
nationwide.
65
The
exemptions
could
cut
that
potential
increase
in
half,
saving
as
much
as
1,200
tons
per
year.
66
That
savings
represents
about
0.01
percent
of
the
nitrogen
oxide
emissions
generated
annually
by
fixed
sources
in
the
United
States.
67
NOx
is
a
pollution
of
concern,
because
it
is
a
key
constituent
(
or
precursor)
in
the
formation
of
ground­
level
ozone,
or
smog.
But
as
noted
above,
the
exemptions
that
EPA
has
adopted
could
increase
emissions
of
VOCs,
another
critical
precursor
of
ozone,
by
as
much
as
an
estimated
13,000
tons
annually.
68
Arbitrarily,
neither
the
Regulatory
Impact
Analysis
nor
the
preamble
explains
why
increasing
VOCs
by
13,000
tons
per
year
to
avoid
1,200
tons
of
nitrogen
oxide
would
yield
a
net
benefit
in
reducing
ozone
formation.

Similarly,
the
Final
Regulatory
Impact
Analysis
notes
that
NOx
can
form
fine
particulate
matter,
but
the
exemptions
in
the
rule
actually
could
result
in
an
increase
in
an
additional
6,100
tons
of
particulate
matter
annually
by
EPA's
own
estimate.
69
OMB's
draft
report
to
Congress
cites
EPA
studies
estimating
that
each
ton
of
NOx
reduced
from
a
power
plant
yields
$
1,300
in
public
health
benefits.
70
Assuming
the
NOx
reduction
benefits
are
comparable
for
this
industry,
the
plywood
rule
exemptions
would
reduce
public
health
costs
by
$
1.56
million
per
year
($
1,300
per
ton
x
1,200
tons
per
year).
But
that
comes
at
the
expense
of
imposing
public
health
costs
of
anywhere
from
$
68.8
million
to
$
645.1
million
annually,
as
a
result
of
higher
VOC
and
particulate
65
EPA
is
forced
to
acknowledge
that
even
"[
t]
his
estimated
increase
in
NOx
emissions
may
be
an
overestimate
because
some
plants
may
select
control
technologies
other
than
RTO
to
comply
with"
the
final
rule.
Id.
at
45,956/
2.
66
Id.
67
"
Air
Emissions
Trends
 
Continued
Progress
Through
2003:
Nitrogen
oxides
national
emissions
totals"
U.
S.
EPA,
available
at
http://
www.
epa.
gov/
airtrends/
econ­
emissions.
html
(
visited
Sept.
27,
2004).
68
Id.
69
Id.,
Final
Regulatory
Impact
Analysis,
at
6­
5.
6­
6.
70
Draft
OMB
Report
at
35.
28
matter
exemptions
resulting
from
the
exemptions.
These
increased
public
health
costs
are
anywhere
from
44
to
414
times
higher
than
the
public
health
savings
from
the
NOx
reductions
that
EPA
touts
in
support
of
the
exemptions.

Remarkably,
in
light
of
the
foregoing,
EPA
is
attempting
to
justify
adoption
of
the
final
rule's
exemptions
on
the
grounds
that
"
the
cost
of
controlling
[
the
specific
pollutants
emitted
by
PCWP
sources]
is
high,
and
may
not
be
justified
by
environmental
benefits
for
these
low­
risk
affected
sources."
69
Fed.
Reg.
at
45985/
3,
45986/
2;
see
also
id.
at
45956/
2.
Indeed,
internal
agency
documents
reveal
that
EPA
staff
relied
upon
these
two
factors
in
briefing
the
EPA
Administrator
leading
up
to
adoption
of
the
final
rule.

In
a
January
5,
2004
briefing
(
attached
to
this
petition)
for
Administrator
Leavitt
entitled
"
Plywood
and
Composite
Wood
products
MACT
and
Turbine
MACT:
Using
Risk
to
Delist
Certain
Subcategories,"
attached
("
Jan.
5,
2004
Leavitt
briefing"),
one
slide
answers
the
question
"
Why
are
We
Considering
Delisting
these
Subcategories?"

The
answer
for
the
plywood
sector
follows:

 
Plywood:
o
Compliance
costs
are
high
($
140M/
yr)
and
exceed
the
monetized
benefits
o
In
some
cases,
the
MACT
controls
result
in
increases
in
nitrogen
oxides
Jan.
5,
2005
Leavitt
briefing
at
3,
slide
6.

Several
things
are
noteworthy
about
this
slide.
The
first
and
most
obvious
is
the
fact
that
for
this
Administrator­
level
briefing,
the
only
reasons
given
for
the
exemptions
were
the
two
identified
above.
The
second
is
the
fact
that
internal
agency
thinking
and
decisionmaking
plainly
were
driven
by
cost
considerations
in
attempting
to
exempt
these
29
facilities,
contradicting
the
agency's
denials
in
the
preamble
to
the
final
rule,
71
and
making
plain
the
extent
to
which
industry
compliance
costs
(
rather
than
public
health
or
environmental
considerations)
and
a
distorted,
erroneous
benefit­
cost
frame
of
reference
were
dictating
the
agency's
actions.
See
also
Jan.
5,
2005
Leavitt
briefing
at
11,
slide
22
("
Impacts
of
Delisting
Low­
risk
Subcategory"
 
"
Costs
of
rule
could
be
significantly
reduced.")
Third,
by
noting
that
"[
i]
n
some
cases,
the
MACT
controls
result
in
increases
in
nitrogen
oxides"
the
briefing
materials
reveal
how
the
industry's
attempt
to
find
environmental
benefit
in
the
exemptions
led
even
internal
agency
deliberations
to
rely
upon
this
fiction.

Nowhere
do
these
briefing
materials
identify
for
the
Administrator:
(
1)
the
significantly
higher
emissions
of
HAPs,
VOCs
and
particulate
matter
resulting
from
the
exemptions
and
how
this
compares
to
the
substantially
smaller
NOx
reductions
achieved
by
foregoing
controls;
72
(
2)
the
substantially
higher
annual
public
health
costs
imposed
by
the
exemptions
and
the
degree
to
which
these
costs
outweigh
the
compliance
costs
savings
to
industry;
or
(
3)
the
substantially
higher
annual
public
health
costs
imposed
by
the
exemptions
and
the
degree
to
which
these
costs
dwarf
the
NOx
reduction
benefits
from
foregoing
controls.
Indeed,
primarily
through
omission,
the
briefing
materials
are
affirmatively
misleading
or
flat
out
false
on
these
questions.

71
69
Fed.
Reg.
at
45984/
1
("
Thus,
the
low­
risk
subcategory
of
PCWP
affected
sources
is
defined
in
terms
of
risk,
not
cost.
We
are
not
subcategorizing
or
determining
MACT
floors
based
on
cost.").
72
In
further
support
of
the
point
that
the
exemptions
do
more
harm
than
good
 
even
taking
EPA's
defense
of
the
exemptions
on
its
own
terms
 
the
agency
is
forced
to
concede
that
the
facilities
that
are
exempted
as
"
low
risk"
are
not
necessarily
going
to
be
clean,
saying,
"
it
is
theoretically
possible
that
between
two
sources
the
better
performing
source
will
be
a
high­
risk
source,
and
the
worse­
performing
source
will
be
a
low­
risk
source,
based
on
circumstances
that
are
unrelated
to
the
question
of
what
abilities
the
sources
have
to
control
HAP
emissions
through
application
of
MACT,
such
as
the
sources'
locations
vis
a
vis
exposed
human
populations."
69
Fed.
Reg.
at
45,991/
2.
This
is
further
indication
of
the
arbitrary
and
capricious
nature
of
the
agency's
exemptions
and
the
reasons
offered
in
support
of
them.
30
In
basing
its
final
rule
on
the
claims
that
"
the
cost
of
controlling
[
the
specific
pollutants
emitted
by
PCWP
sources]
is
high,
and
may
not
be
justified
by
environmental
benefits
for
these
low­
risk
affected
sources,"
69
Fed.
Reg.
at
45,985/
3,
EPA
runs
afoul
of
National
Lime
Assn
v.
EPA,
233
F.
3d
625,
640
(
D.
C.
Cir.
2000),
in
which
the
court
stated:

Cost,
however,
may
be
taken
into
account
only
in
considering
beyond­
thefloor
emissions
limitations,
which
in
the
case
of
PM
we
have
remanded
to
the
agency;
cost
may
not
influence
the
determination
of
a
MACT
floor,
which
depends
exclusively
upon
the
emissions
reductions
achieved
by
the
bestperforming
sources.
See
id.
§
7412(
d)(
3).
Relatedly,
the
NLA
also
claims
that
in
light
of
both
the
high
costs
and
the
low
quantities
of
HAP
metals
to
be
controlled,
the
EPA
should
read
a
de
minimis
exception
into
the
requirement
that
it
regulate
all
hazardous
air
pollutants
emitted
by
major
sources.
The
EPA
reasonably
rejected
this
argument
on
the
ground
that
the
statute
"
does
not
provide
for
exceptions
from
emissions
standards
based
on
de
minimis
principles
where
a
MACT
floor
exists."

Notwithstanding
the
preamble's
disingenuous
claims
elsewhere
that
the
low­
risk
subcategory
was
not
based
on
cost,
69
Fed.
Reg.
at
45984/
1,
or
that
the
exemption
does
not
rely
upon
an
implicit
de
minimis
theory,
id.
at
45984/
2,
the
preamble
passage
quoted
at
the
outset
of
this
paragraph
as
well
as
internal
briefing
materials
accompanying
this
reconsideration
petition
make
clear
that
cost
was
the
driving
factor
behind
the
subcategory
delisting.
Under
National
Lime,
and
for
other
reasons
discussed
in
this
petition
and
our
original
comments,
the
exemption
is
unlawful.

In
conclusion,
not
only
do
the
compliance
costs
and
claimed
lack
of
environmental
benefits
fail
to
justify
the
final
rule's
so­
called
risk­
based
exemptions,
the
foregoing
information
and
analysis
reveal
the
glaring
extent
to
which
these
justifications
are
arbitrary
and
capricious
and
serve
to
undermine
adoption
of
the
exemptions.
EPA's
own
data
reveal
that
the
exemptions
have
a
substantially
higher
net
social
cost
than
a
lawful
MACT
standard
without
the
exemptions,
and
also
result
in
significantly
higher
31
emissions
of
HAPs,
VOCs
and
particulate
matter
than
a
rule
without
the
exemptions.
For
these
reasons,
EPA's
exemptions
are
further
unlawful,
arbitrary
and
capricious
and
an
abuse
of
the
agency's
discretion;
the
agency
must
reconsider
these
exemptions,
grant
an
administrative
stay,
and
undertake
proceedings
that
will
lead
to
withdrawal
of
the
exemptions.

5.
EPA
Must
Reconsider
Its
Assessment
of
Ecological
Risks.

As
noted
above,
EPA's
proposal
gave
the
scarcest
of
details
about
how
a
low­
risk
subcategory/
delisting
action
would
be
accomplished,
and
the
agency's
handling
of
ecological
risks
is
a
perfect
example
of
how
the
public
was
denied
any
meaningful
opportunity
to
comment
on
the
risk
method.
The
proposal
did
not
discuss
how
ecological
risks
would
be
factored
into
the
risk
approach
at
all,
except
to
quote
the
statutory
language
concerning
delisting.
73
That
language
presents
a
daunting
hurdle
to
EPA's
desired
exemption
theory;
it
provides
that,
for
facilities
emitting
non­
carcinogenic
HAPs,

no
source
category
or
subcategory
may
be
delisted
unless
"
no
adverse
environmental
effect
will
result
from
emissions
from
any
source.
.
.
."
74
The
agency's
proposal
did
not
give
any
inkling
of
how
EPA
intended
to
implement
this
provision,
or
what
standards
it
would
use
to
assess
whether
PCWP
sources
might
cause
environmental
harm.
Nor
to
our
knowledge
did
any
item
in
EPA's
rulemaking
docket,
until
February
18,
2004
 
nearly
a
year
after
the
close
of
the
comment
period
and
eight
days
before
the
final
rule
was
signed
 
contain
any
analysis
of
the
ecological
risks
of
PCWP
facilities.
Accordingly,
because
a
finding
that
there
are
no
environmental
effects
is
a
necessary
prerequisite
to
delisting
a
73
See
68
Fed.
Reg.
at
1,301­
02.
74
42
U.
S.
C.
§
7412(
c)(
9)(
B)(
2).
32
category
or
subcategory
(
and
therefore
is
centrally
relevant
to
this
rulemaking),
and
because
the
grounds
for
this
objection
arose
after
the
public
comment
period,
EPA
must
grant
reconsideration
of
this
element
of
the
rule.
Moreover,
because
EPA's
ecological
assessment
for
the
final
rule
is
fundamentally
inadequate,
the
agency
must
reverse
its
approach
on
reconsideration.

In
the
final
rule,
EPA
describes
its
effort
to
assess
ecological
risks
in
the
following
manner:

We
have
conducted
an
ecological
assessment
.
.
.
on
those
HAP
emitted
from
PCWP
affected
sources
.
.
.
that
we
have
identified
as
having
the
potential
for
persisting
and
bioaccumulating
in
the
environment.
From
this
analysis
we
determined
that
adverse
ecological
effects
.
.
.
are
unlikely
from
PCWP
affected
sources.
Therefore,
PCWP
affected
sources
attempting
to
demonstrate
their
lowrisk
status
will
not
be
required
to
include
an
ecological
assessment.
.
.
.75
A
memorandum
in
the
docket
has
a
single
paragraph
explaining
the
ecological
assessment
that
EPA's
contractor
performed;
the
assessment
"
used
the
media
concentrations
developed
for
the
human
health
assessment
to
estimate
screening
level
ecological
impacts
.
.
.
[
and]
used
the
media
concentrations
from
the
highest
risk
facility
location
­
Minnesota."
76
Beyond
that,
however,
there
are
virtually
no
details
about
how
EPA
evaluated
risks,
leaving
a
completely
inadequate
record
upon
which
to
find
that
PCWP
plants
cause
"
no
adverse
environmental
effect,"
and
thus
is
arbitrary
and
capricious.
77
Moreover,
the
few
details
EPA
has
revealed
about
its
methodology
indicate
that
the
agency
has
failed
to
meet
the
legal
requirement
in
the
CAA
in
several
obvious
75
69
Fed.
Reg.
at
45,998.
76
Memorandum
from
Nancy
Jones
and
Lesley
Stobert,
EC/
R
Inc.,
to
Dennis
Pagano
and
Maria
Pimentel,
EPA/
REAG,
"
Multipathway
and
Ecological
Risks
from
Model
PCWP
Facilities,"
at
4
(
Jan.
28,
2004).
77
By
way
of
comparison,
EPA
must
assess
the
ecological
effects
of
pesticides
to
determine
if
they
are
eligible
for
registration
under
the
Federal
Insecticide,
Fungicide
and
Rodenticide
Act,
and
the
agency's
assessments
for
that
purpose
are
lengthy,
detailed
documents
looking
at
a
variety
of
possible
scenarios
and
ecological
endpoints.
See,
e.
g.,
U.
S.
EPA,
Reregistration
Eligibility
Science
Chapter
for
Atrazine:
Environmental
Fate
and
Effects
Chapter
(
Jan.
26,
2001),
available
online
at
http://
www.
epa.
gov/
oppsrrd1/
reregistration/
atrazine/
atrazine_
eco_
assessment.
pdf
(
visited
Sept.
26,
2004).
33
ways:
(
1)
the
assessment
focused
on
just
a
few
HAPs
and
thus
ignored
potential
environmental
impacts
from
other
emissions;
(
2)
by
evaluating
a
single
location,
the
assessment
ignored
potential
site­
specific
environmental
receptors
and
locally
affected
species;
and
(
3)
the
consideration
of
only
persistent
and
bioaccumulative
HAPs
would
not
capture
potential
acute
effects
on
the
environment.
78
6.
EPA
Must
Reconsider
the
Fundamental
Legal
Basis
for
the
Rule's
Risk­
Based
Exemptions.

a.
Introduction
EPA's
risk­
based
exemptions
contravene
the
statutory
language,
structure
and
history
of
the
1990
Clean
Air
Act
amendments.
We
discuss
the
exemptions'
many
legal
deficiencies
in
greater
detail
below.
But
it
is
useful
initially
to
revisit
the
history
of
air
toxics
regulation
under
the
Act,
and
the
Congressional
response
to
that
history
in
1990,
to
see
just
how
thoroughly
this
rule's
risk­
based
exemptions
flout
Congressional
intent.

Since
EPA
is
already
familiar
with
this
history,
and
EPA's
own
Office
of
General
Counsel
has
confronted
agency
policymakers
with
reminders
of
this
history
in
the
process
of
concluding
that
this
risk­
based
enterprise
is
unlawful,
we
will
content
ourselves
with
excerpting
relevant
portions
of
the
legislative
history
here.
These
excerpts
reinforce
the
unlawfulness
and
arbitrariness
of
the
final
rule's
risk­
based
exemptions,
and
we
ask
that
the
agency
reconsider
those
exemptions
and
respond
to
this
legislative
history
in
acting
on
this
petition.

78
This
simplistic
assessment
seems
well
short
of
EPA's
technical
capacity
to
examine
ecological
impacts.
For
instance,
we
note
that
the
agency
has
a
model
which
EPA
claims
"
predicts
pollutant
concentrations
in
multiple
environmental
media
and
in
biota
and
pollutant
intakes
for
biota,
all
of
which
provide
both
temporal
and
spatial
exposure
estimates
for
ecological
receptors
(
i.
e.,
plants
and
animals)."
U.
S.
EPA,
Total
Risk
Integrated
Methodology
(
TRIM)
­
TRIM.
FaTE,
available
online
at
http://
www.
epa.
gov/
ttn/
fera/
trim_
fate.
html
(
visited
Sept.
26,
2004).
34
By
1990,
Congress
was
disgusted
with
EPA's
failure
to
regulate
air
toxics
over
the
prior
two
decades
sufficiently
to
protect
the
American
public.
Under
the
pre­
existing
risk­
based
regime,
EPA
had
managed
to
list
only
eight
toxic
air
pollutants
for
regulation,

and
Congress
attributed
the
failings
of
the
existing
system
to
the
cumbersome,
risk­
based
system
of
regulation.
79
As
Senator
Baucus
explained:

There
is
therefore,
broad
consensus
that
the
program
to
regulate
hazardous
air
pollutants
under
section
112
should
be
restructured.
There
is
broad
consensus
that
current
law
doesn't
work.
In
light
of
this,
the
bill
would
entirely
restructure
the
existing
law,
so
that
EPA
would
have
authority
to
regulate
industrial
and
area
source
categories
of
air
pollution
rather
than
individual
pollutants.
Moreover,
the
bill
provides
new
authority
allowing
cost
to
be
considered
in
applying
controls.

This
new
approach
towards
regulation
of
both
routine
releases
of
hazardous
air
pollutants
relies
on
technology­
based
standards
rather
than
riskbased
standards.
This
approach
is
needed
to
overcome
the
inertia
that
plagued
the
health­
based
standard
setting
process
authorized
by
current
law.

1
Legis.
Hist.
At
1029.

These
same
sentiments
were
echoed
repeatedly
throughout
the
deliberations
leading
to
adoption
of
the
new
section
112
MACT
program:

It
is
essential
that
EPA
promulgate
meaningful
MACT
standards
on
time.
We
have
postponed
the
health
test
under
section
112
of
current
law
in
the
expectation
that
MACT
will
be
effective.
A
weak
MACT
standard
would
cause
more
sources
to
trigger
the
residual
risk
standard.
This
would
postpone
needed
health
protection
and
would
increase
costs
of
toxics
controls.
The
best
solution
is
an
aggressive
MACT
program
that
protects
public
health
and
the
environment.

Id.
at
790.;
see
also
id.
at
5000­
01.

Speaking
to
section
112'
s
phase
II
residual
risk
program,
Senator
Durenberger
explained:

To
summarize
the
program
for
health­
based
standards:
It
is
a
second
phase
of
the
standard­
setting
process
which
comes
after
the
technology­
based
standards.

79
1
A
Legislative
History
of
the
Clean
Air
Act
Amendments
of
1990,
Comm.
Print
S.
Prt.
103­
38
(
1993)
("
1
Legis.
Hist.")
at
1028­
29
(
Sen.
Baucus).
35
Id.
at
5008.
Senator
Durenberger
explained
elsewhere
that
"[
t]
he
Administrator
is
to
replace
the
technology
standards
for
a
source
category,
only
if
it
is
necessary
to
protect
health
with
a
more
stringent
standard.
This
bill
does
not
authorize
the
Administrator
to
relax
the
standards
established
under
subsection
(
d)
for
a
category
by
establishing
standards
under
subsection
(
f)."
Id.
at
877.

Finally,
it
is
notable
that
two
of
the
principal
architects
of
the
1990
Amendments
 
one
Republican,
one
Democrat
­­
have
specifically
condemned
the
risk­
based
exemption
in
this
very
PCWP
rulemaking
as
an
outright
circumvention
of
the
statute
and
Congressional
intent:

"
I
don't
have
any
doubt
but
that
is
a
way
to
get
around
the
policy
which
we
worked
hard
to
achieve,"
said
former
Sen.
David
F.
Durenberger
(
R­
Minn.).
Rep.
Henry
A.
Waxman
(
D­
Los
Angeles)
declared
the
timber
products
exemption
"
directly
contrary
to
our
intent."

Alan
C.
Miller
&
Tom
Hamburger,
"
EPA
Relied
on
Industry
for
Plywood
Plant
Pollution
Rule,"
L.
A.
Times
(
May
21,
2004).

b.
EPA's
New
Interpretation
of
Subsections
112(
c)(
1)
and
112(
d)(
1)

In
the
preamble
to
the
final
rule,
EPA
offers
a
statutory
interpretation
and
lengthy
supporting
arguments
intended
to
demonstrate
that
its
rule
is
authorized
under
subsection
112(
c)(
9)
and
not
in
violation
of
any
other
provision
of
the
Act.
69
Fed.
Reg.
at
45946/
1,

45984/
1­
85/
3,
45986/
3­
91/
3.80
According
to
that
interpretation,
EPA's
rule
does
not
exceed
"
the
discretion
provided
to
the
Administrator
under
CAA
section
112(
d)(
1)
to
distinguish
among
classes,
types,
and
sizes
of
sources
within
a
category
and
under
CAA
section
112(
c)(
1)
to
base
categories
and
subcategories
on
any
appropriate
criteria."
Id.
at
45984/
3.

80
"
This
action
.
.
.
includes
a
detailed
rationale
for
removing
low­
risk
PCWP
affected
sources
from
the
source
category
list."
69
Fed.
Reg.
at
45944/
2.
36
EPA's
proposal,
however,
did
not
even
mention
§
112(
d)(
1)
or
provide
any
reasoned
explanation
why
risk
is
an
"
appropriate"
criterion
for
distinguishing
between
sources.
This
approach
flies
in
the
face
of
the
Act's
instruction
that
EPA
accompany
any
proposed
rule
with
"
the
major
legal
interpretations
.
.
.
underlying
[
it]."
42
U.
S.
C.
§
7607(
d)(
3)(
C).
81
Consequently,
NRDC
could
not
reasonably
during
the
period
for
public
comment
object
to
the
final
rule's
interpretation
of
the
statute
or
present
the
grounds
for
its
objection.
The
objection
is
thus
appropriately
raised
in
this
petition.
Id.
§
7607(
d)(
7)(
B).
The
following
discussion
presents
NRDC's
objection
and
the
grounds
for
it.
The
objection
is
"
of
central
relevance
to
the
outcome
of
the
rule,"
id.,
because
it
demonstrates
that
the
rule
contravenes
the
Clean
Air
Act
and
is
arbitrary
and
capricious.

i.
The
Rule
Exceeds
the
Discretion
Afforded
EPA
by
Subsections
112(
c)(
1)
and
112(
d)(
1).

The
subsection
112(
d)(
1)
sentence
upon
which
EPA
seeks
to
rely
is,
on
its
face,

incapable
of
authorizing
this
rule.
EPA
refers
only
to
the
sentence's
first
clause,
which
authorizes
EPA
to
"
distinguish
among
classes,
types,
and
sizes
of
sources
within
a
category
or
subcategory
in
establishing
[
emission]
standards
.
.
.
."
Id.
§
7412(
d)(
1).
In
its
second
clause,
however,
the
sentence
declares
unambiguously
that
it
does
not
authorize
EPA
actions
that
cause
"
delay
in
the
compliance
date
for
any
standard
applicable
to
any
source
under
subsection
(
i)."
Id.
On
its
face,
EPA's
rule
delays
the
subsection
112(
i)
compliance
date
for
all
sources
that
are
designated
"
low
risk,"

including
those
that,
by
the
time
the
subsection
112(
i)
date
arrives,
have
lost
the
"
low
81
In
the
notice
of
proposed
rulemaking,
EPA
simply
quoted
language
in
subsection
112(
c)(
9)(
B)
of
the
Act
and
announced
that,
"[
g]
iven
these
authorities
and
the
suggestions
from
the
white
paper
prepared
by
industry
representatives,"
the
agency
was
"
considering
whether
it
would
be
possible
to
establish
a
subcategory
of
facilities
within
the
larger
PCWP
category
that
would
meet
the
risk­
based
criteria
for
delisting."
68
Fed.
Reg.
at
1301/
2­
3.
37
risk"
designation
and
are
thus
unquestionably
subject
to
the
PCWP
MACT
standards.
69
Fed.
Reg.
at
45955/
2­
3,
46043/
2.
Therefore,
the
last
sentence
of
subsection
112(
d)(
1)

cannot
provide
authorization
for
this
rule.

Moreover,
neither
subsection
112(
c)(
1)
nor
subsection
112(
d)(
1)
purports
to
 
or
could
 
authorize
EPA
to
contravene
Congressional
intent.
42
U.
S.
C.
§
7412(
c)(
1),

(
d)(
1).
82
As
demonstrated
below,
EPA's
rule
contravenes
the
Congressional
intent
that
is
expressed
unambiguously
in
the
language,
structure,
and
history
of
section
112.

Therefore,
the
rule
exceeds
the
discretion
afforded
EPA
by
subsections
112(
c)(
1)
and
112(
d)(
1).

ii.
The
Rule
Contravenes
the
Clear
Commands
of
Section
112
and
the
Intent
of
Congress.

EPA
acknowledges
that
its
rule
establishes
a
subcategory
 
the
so­
called
"
Low­

Risk
Subcategory
of
PCWP
Affected
Sources"
 
pursuant
to
subsection
112(
c)(
1).
69
Fed.
Reg.
at
45984/
3.
As
the
agency
also
concedes,
however,
the
rule
does
not
establish
emissions
standards
for
the
new
subcategory,
or
even
leave
open
the
possibility
that
the
administrator
will
do
so
in
the
future.
Id.
at
45944/
2,
45946/
1.
The
rule
thus
contravenes
subsections
112(
c)(
2)
and
112(
d)(
1)
while
thwarting
Congressional
intent.

Subsection
112(
c)(
2)
declares
that,
"[
f]
or
the
categories
and
subcategories
the
Administrator
lists,
the
Administrator
shall
establish
emissions
standards
under
subsection
(
d)
of
this
section,
according
to
the
schedule
in
this
subsection
and
subsection
(
e)
of
this
section."
42
U.
S.
C.
§
7412(
c)(
2)
(
emphasis
added).
Subsection
112(
d)(
1)

declares
that
"[
t]
he
Administrator
shall
promulgate
regulations
establishing
emission
82
Indeed,
the
subsection
112(
c)(
1)
language
upon
which
EPA
seeks
to
rely
merely
affirms
the
agency's
"
authority
to
establish
subcategories
under
this
section
[
i.
e.,
section
112],
as
appropriate."
42
U.
S.
C.
§
7412(
c)(
1)
(
emphasis
added).
38
standards
for
each
category
or
subcategory
of
major
sources
and
area
sources
of
hazardous
air
pollutants
listed
for
regulation
pursuant
to
subsection
(
c)
and
(
e)
of
this
section."
Id.
§
7412(
d)(
1)
(
emphasis
added).
EPA's
rule
contravenes
these
directives
by
precluding
the
establishment
of
emissions
standards
for
a
listed
subcategory.
83
EPA
claims
that
its
rule
falls
within
the
one
exception
to
the
Act's
directive
that
the
agency
establish
emission
standards
for
each
listed
category
or
subcategory.

Specifically,
EPA
argues
that
the
rule
carries
out
a
source
category
deletion
of
the
type
authorized
by
subsection
112(
c)(
9)(
B).
69
Fed.
Reg.
at
45944/
2.
But
that
subsection
does
not
authorize
what
this
rule
does.

First
of
all,
the
action
EPA
takes
in
this
rule
is
identical,
in
all
relevant
respects,
to
agency
action
that
Congress
affirmatively
declined
to
authorize
when
it
enacted
subsection
112(
c)(
9)(
B).
Specifically,
the
rule
institutes
a
system
whereby
EPA
exempts
individual
sources
from
a
listed
category
 
and
from
that
category's
MACT
standards
 
on
the
basis
of
source­
by­
source
risk
determinations.
Id.
at
46012/
1
(
40
C.
F.
R.
§
63.2231),
46040/
2
(
40
C.
F.
R.
Part
63,
Subpart
DDDD,
App.
B,
§
4)
(
individual
source
belonging
to
the
PCWP
category
becomes
exempt
from
the
MACT
requirements
that
apply
to
that
category
if
the
source
demonstrates
that
the
risks
caused
by
its
HAP
emissions
fall
below
thresholds
identified
in
a
"
look­
up
table"
or
in
a
"
site­
specific
risk
assessment").
84
Congress
affirmatively
rejected
a
proposal
to
authorize
EPA
to
make
83
The
second
sentence
of
subsection
112(
d)(
1),
upon
which
EPA
seeks
to
rely,
authorizes
the
agency
to
"
distinguish
among
classes,
types,
and
sizes
of
sources
within
a
category
or
subcategory
in
establishing
[
emissions]
standards,"
not
in
exempting
certain
members
of
a
listed
category
from
MACT
standards
altogether.
42
U.
S.
C.
§
7412(
d)(
1)
(
emphasis
added).
For
other
reasons
stated
above,
moreover,
the
second
sentence
of
subsection
112(
d)(
1)
cannot
provide
authorization
for
this
rule.
See
supra,
p.
36.
84
The
text
of
the
proposed
rule
did
not
include
provisions
for
exempting
individual
PCWP
sources
from
MACT
based
on
risk,
see
68
Fed.
Reg.
at
1310­
1339,
and
the
preamble's
discussion
of
"
Subcategory
Delisting
Under
Section
112(
c)(
9)(
B)
of
the
CAA"
made
no
mention
of
any
such
provisions.
See
id.
at
1301­
02.
Consequently,
the
grounds
for
NRDC's
objection
to
those
provisions
arose
after
the
period
for
39
such
exemptions.
See
Remarks
of
Senator
Durenberger
in
Senate
Debate
(
Oct.
27,
1990),

reprinted
in
1
Legis.
Hist.
at
866
("
The
fourth
set
of
alternatives
reviewed
in
the
paper
concern
source­
by­
source
exemptions
from
MACT
based
on
risk
assessments,
a
provision
contained
in
the
House
bill.
The
authority
for
such
exemptions
was
not
present
in
the
Senate
bill,
and
the
House
receded
to
the
Senate
on
this
point.
The
provision
was
deleted
in
conference.").
Indeed,
EPA
concedes
as
much.
69
Fed.
Reg.
at
45984/
2
("[
T]
he
legislative
history
of
the
1990
Amendments
to
the
CAA
indicates
that
Congress
considered
and
rejected
allowing
us
to
grant
such
source­
specific
exemptions
from
the
MACT
floor.").
Therefore,
subsection
112(
c)(
9)(
B)
cannot
be
read
to
authorize
a
rule
like
this
one,
under
which
individual
sources
are
exempted
from
a
category
and
its
MACT
standards
on
the
basis
of
individualized
risk
determinations.

EPA's
own
Office
of
General
Counsel
("
OGC")
reached
the
same
conclusion
in
a
March
4,
2002
draft
memorandum
(
attached)
analyzing
this
rule
when
it
was
under
development:

The
conclusion
that
Congress
did
not
intend
to
exempt
individual
low­
risk
sources
is
further
supported
by
Congress'
rejection
of
a
provision
that
would
have
allowed
relaxed
standards
for
such
individual
low­
risk
sources.
The
House
Bill,
H.
R.
3030,
would
have
allowed
a
source
to
comply
with
an
alternative
emission
limitation
(
in
lieu
of
the
technology­
based
standards
otherwise
required),
if
the
source
could
demonstrate
that
emissions
meeting
the
alternative
limitation
would
present
a
negligible
risk
to
public
health.
See
H.
R.
3030
reprinted
in
2
Legis.
Hist.
at
3939
(
proposed
CAA
§
112(
g)(
1)(
A)).
Senator
Durenberger
explained
that
this
source­
specific
risk­
based
exemption
was
rejected
by
Congress.
[
citing
the
Senator
Durenberger
remarks
quoted
supra,
p.
37]

OGC
Memo
at
10­
11;
see
also
id.
at
10
("
Section
112(
c)(
9)
does
not
provide
EPA
authority
to
delist
individual
low­
risk
sources.").
The
agency
has
not
acknowledged
 
public
comment
had
ended.
The
objection
is
thus
appropriately
raised
in
this
petition.
See
42
U.
S.
C.
§
7607(
d)(
7)(
B).
Moreover,
the
objection
is
"
of
central
relevance
to
the
outcome
of
the
rule,"
id.,
because
it
demonstrate
that
the
rule
contravenes
the
Clean
Air
Act
and
is
arbitrary
and
capricious.
40
much
less
resolved
 
the
contradiction
between
the
conclusions
in
its
final
rule
and
the
evidence
that
OGC
found
determinative
of
an
opposite
conclusion.
For
that
reason
alone,

the
rule
is
arbitrary
and
capricious.
See
Motor
Vehicle
Mfrs.
Ass'n
v.
State
Farm
Mutual
Automobile
Ins.
Co.,
463
U.
S.
29,
43
(
1983)
(
agency
rule
arbitrary
and
capricious
where
agency
"
offered
an
explanation
for
its
decision
that
runs
counter
to
the
evidence
before
the
agency").
85
In
the
face
of
the
clear
legislative
history,
EPA
makes
the
extraordinary
claim
that
Congress
did
not
specifically
decline
to
authorize
the
agency
from
taking
the
action
described
in
this
rule.
69
Fed.
Reg.
at
45990/
2.
EPA's
position
amounts
to
a
contention
that
although
Congress
considered
and
rejected
a
provision
that
would
have
allowed
sources
to
abide
by
weaker
standards
by
making
source­
specific
showings
about
risk,
the
same
legislators
would
have
embraced
a
rule
exempting
allegedly
low­
risk
sources
from
standards
altogether.
Even
if
this
claim
were
correct,
which
it
plainly
is
not,
it
would
not
rehabilitate
the
rule
from
unlawfulness,
for
it
would
not
change
the
fact,
demonstrated
below,
that
the
rule
rests
upon
a
reading
of
subsection
112(
c)(
9)(
B)
that
would
render
the
language
of
paragraphs
(
i)
and
(
ii)
in
that
subsection
meaningless.
In
any
event,
the
arguments
that
EPA
offers
in
support
its
claim
are
specious.
86
85
It
was
impracticable
to
raise
this
objection
of
arbitrariness
and
capriciousness
during
the
period
for
public
comment
on
this
rule
 
and
the
grounds
for
the
objection
arose
only
after
that
period
ended
 
because
the
OGC
memorandum
did
not
become
public
until
May
21,
2004,
more
than
two
months
after
the
public
comment
period
had
closed.
See
Alan
C.
Miller
and
Tom
Hamburger,
"
EPA
Relied
on
Industry
for
Plywood
Plant
Pollution
Rule,"
Los
Angeles
Times,
May
21,
2004
(
publishing
OGC
memorandum
with
online
version);
69
Fed.
Reg.
at
45946/
2
("
The
public
comment
period
lasted
from
January
9,
2003,
to
March
10,
2003.").
The
objection
is
thus
appropriately
raised
in
this
petition.
See
42
U.
S.
C.
§
7607(
d)(
7)(
B).
Moreover,
the
objection
is
"
of
central
relevance
to
the
outcome
of
the
rule,"
id.,
because
it
demonstrates
that
the
rule
is
arbitrary
and
capricious.
86
Neither
EPA's
claim
nor
the
arguments
intended
to
advance
it
appeared,
even
in
summary
form,
in
the
notice
of
proposed
rulemaking.
See
68
Fed.
Reg.
at
1301/
2­
3.
Consequently,
the
grounds
for
NRDC's
objection
to
EPA's
interpretation
arose
after
the
period
for
public
comment
had
ended.
The
objection
is
thus
appropriately
raised
in
this
petition.
See
42
U.
S.
C.
§
7607(
d)(
7)(
B).
Moreover,
the
objection
is
"
of
41
First,
EPA
argues
that
its
rule
is
different
from
the
approach
that
Congress
rejected,
in
that
the
rule
relies
"
upon
the
application
of
specific
eligibility
criteria
that
are
defined
in
advance
of
any
source's
application
to
be
included
in
the
low­
risk
PCWP
subcategory,
in
much
the
same
way
as
any
other
applicability
determination
process
works."
Id.
at
45990/
2.
But
there
is
not
the
slightest
indication
 
indeed,
EPA
cannot
point
to
any
 
that
Congress
would
have
adopted
the
proposed
provision
if
only
the
provision
had
required
that
the
eligibility
criteria
be
spelled
out
in
advance
of
any
sourceby
source
eligibility
determinations.
Moreover,
as
discussed
above,
EPA
permits
individual
sources
to
avoid
pollution
controls
by
making
source­
specific
risk
assessments
governed
by
only
a
few
general
and
ambiguous
criteria,
so
EPA's
attempted
distinction
of
its
approach
from
the
one
Congress
refused
to
adopt
does
not
withstand
scrutiny.
In
fact,
as
OGC
has
recognized,
all
the
evidence
indicates
that
Congress
would
have
rejected
any
source­
by­
source
approach
that
was
based
on
risk:

The
statute
and
legislative
history
demonstrates
that,
for
non­
threshold
pollutants,
Congress
did
not
intend
to
regulate
only
high­
risk
sources
or
to
regulate
sources
only
to
the
point
where
they
meet
the
risk
criteria
of
112(
c)(
9)
or
112(
f).
.
.
.
[
S]
ubcategorization
based
on
risk
would
effectively
allow
source­
specific
delisting
under
112(
c)(
9).
Such
an
outcome
is
not
contemplated
by
the
language
of
section
112(
c)(
9)
and
was
expressly
rejected
by
Congress
in
drafting
section
112.

OGC
Memo
at
8
(
emphasis
added).
EPA
concedes
that
its
rule
establishes
a
source­

bysource
eligibility
approach,
87
and
that
eligibility
is
decided
on
the
sole
basis
of
risk.
69
central
relevance
to
the
outcome
of
the
rule,"
id.,
because
it
demonstrates
that
the
rule
contravenes
the
Clean
Air
Act
and
is
arbitrary
and
capricious.
87
"[
T]
he
approach
we
are
taking
for
identifying
additional
low­
risk
PCWP
affected
sources
is
fully
consistent
with
the
approach
we
have
long
taken
in
identifying,
on
a
case­
by­
case
basis
and
subject
to
appropriate
review,
whether
individual
sources
are
members
of
a
category
or
subcategory
subject
to
standards
adopted
under
CAA
section
111
and
112."
69
Fed.
Reg.
at
45990/
2.
42
Fed.
Reg.
at
45990/
3
("[
T]
he
criteria
for
the
low­
risk
subcategory
we
are
delisting
are
based
solely
on
risk
and
not
on
technological
differences
in
equipment
or
emissions.").

Therefore,
EPA's
rule
is
precisely
the
agency
action
that
Congress
affirmatively
declined
to
authorize.
Moreover,
the
agency's
failure
to
acknowledge
 
much
less
resolve
 
the
contradiction
between
the
conclusions
in
its
final
rule
and
the
evidence
that
OGC
found
determinative
of
an
opposite
conclusion
renders
the
rule
arbitrary
and
capricious.
See
Motor
Vehicle
Mfrs.
Ass'n,
463
U.
S.
at
43.88
Next,
EPA
argues
that
Congress's
decision
not
to
enact
the
provision
that
would
have
authorized
a
risk­
based,
source­
by­
source
approach
"
is
not
probative
of
congressional
intent"
concerning
EPA's
authorization
vel
non
to
promulgate
such
an
approach
since
"[
t]
here
is
no
evidence
that
this
provision
was
ever
debated,
considered,

or
voted
upon."
69
Fed.
Reg.
at
45990/
2.
This
argument
is
flatly
contradicted
by
EPA's
own
assertion
that
"
the
legislative
history
of
the
1990
Amendments
to
the
CAA
indicates
that
Congress
considered
and
rejected
allowing
us
to
grant
such
source­
specific
exemptions
from
the
MACT
floor."
Id.
at
45984/
2
(
emphasis
added).
Moreover,
the
fact
that
EPA's
action
rests
upon
a
reading
of
subsection
112(
c)(
9)(
B)
that
would
render
the
language
of
paragraphs
(
i)
and
(
ii)
in
that
subsection
meaningless
(
see
infra,
p.
42)
is
alone
sufficient
to
establish
the
fact
that
the
subsection
does
not
authorize
the
agency's
action
in
this
rule.
EPA's
suggestion
that
Congress's
rejection
of
H.
R.
3030
does
not
further
reinforce
that
fact
is
at
odds
with
governing
case
law.
See,
e.
g.,
I.
N.
S.
v.
Cardoza­

Fonseca,
107
S.
Ct.
1207,
1218­
19
(
1987)
(
inclusion
of
provision
in
Senate
bill
indicated
88
This
objection
of
arbitrariness
and
capriciousness
is
appropriately
raised
in
this
petition,
and
is
of
central
relevance
to
the
outcome
of
the
rule,
for
the
reasons
stated
supra,
n.
84.
43
consideration
of
provision,
and
enactment
of
House
bill
rather
than
Senate
bill
demonstrated
Congressional
rejection
of
provision).

Finally,
EPA
claims
that
"
it
is
reasonable
to
assume
that,
had
Congress
been
aware
in
1990
of
the
possibility
that
an
identifiable
group
of
PCWP
affected
sources
is
low
risk,
while
that
group
does
not
correspond
to
traditional
criteria
differentiating
categories
and
subcategories,"
Congress
would
have
"
expressly"
authorized
EPA's
action
in
this
rule.
69
Fed.
Reg.
at
45900/
2.
But
EPA's
assumption
cannot
be
called
reasonable,
for
three
reasons.
First,
EPA
offers
no
basis
whatsoever
for
the
assumption.

Second,
EPA's
own
lawyers
concluded
that
"[
i]
t
does
not
appear
reasonable
to
support
risk­
based
subcategorization
based
on
an
argument
that
Congress
did
not
intend
to
regulate
low­
risk
sources."
OGC
Memo
at
11
(
emphasis
added);
see
also
id.
("
This
argument
is
inconsistent
with
the
structure
of
section
112
and
the
underlying
legislative
history.").
The
agency's
failure
to
acknowledge
 
much
less
resolve
 
the
contradiction
between
the
conclusions
in
its
final
rule
and
the
evidence
that
OGC
found
determinative
of
an
opposite
conclusion
renders
the
rule
arbitrary
and
capricious.
See
Motor
Vehicle
Mfrs.
Ass'n,
463
U.
S.
at
43.89
Third,
as
demonstrated
below,
the
assumption
necessitates
the
invalid
conclusion
that
Congress
intended
to
render
meaningless
the
language
in
paragraphs
(
i)
and
(
ii)
of
subsection
112(
c)(
9)(
B).

Construing
subsection
112(
c)(
9)(
B)
to
authorize
EPA's
rule
would
render
its
terms
meaningless.
The
subsection
authorizes
EPA
to
delete
a
category
only
when
the
agency
determines
that
"
no
source
in
the
category"
emits
HAPs
that
may
cause
more
than
a
specified
cancer
risk,
emits
HAPs
in
a
quantity
that
thwarts
the
protection
of
public
89
This
objection
of
arbitrariness
and
capriciousness
is
appropriately
raised
in
this
petition,
and
is
of
central
relevance
to
the
outcome
of
the
rule,
for
the
reasons
stated
supra,
n.
84.
44
health
with
an
ample
margin
of
safety,
or
emits
HAPs
that
will
have
an
adverse
environmental
effect.
42
U.
S.
C.
§
7412(
c)(
9)(
B)(
i),
(
ii)
(
emphasis
added).
This
prerequisite
would
be
futile
if
the
subsection
authorized
EPA
to
do
what
this
rule
does,

namely,
allow
individual
sources
to
exempt
themselves
on
a
case­
by­
case
basis
from
a
listed
category
based
on
individualized
showings
that
the
adverse
effects
of
their
HAP
emissions
fall
below
the
thresholds
identified
in
the
subsection.
"
Congress
cannot
be
presumed
to
do
a
futile
thing."
Halverson
v.
Slater,
129
F.
3d
180,
185
(
D.
C.
Cir.
1997).

Moreover,
construing
subsection
112(
c)(
9)(
B)
to
authorize
EPA's
rule
would
generate
a
direct
conflict
with
the
plain
language
of
subsection
112(
d)(
3),
the
"
MACT
floor"
requirements.
After
worrying
about
what
effect
this
exemption
idea
would
have
on
the
MACT
floor,
see
68
Fed.
Reg.
at
1,301­
02,
EPA
has
tried
to
have
its
regulatory
cake
(
by
using
"
low
risk"
sources
to
help
define
the
floor
level
of
control)
and
eat
it
too
(
by
subsequently
letting
those
sources
escape
MACT
regulation).
See
69
Fed.
Reg.
at
45,991.
The
agency
proclaims
that
there
is
nothing
in
the
CAA
that
prevents
us
from
including
[
sources
from
a
different
subcategory]
in
any
consideration
of
what
represents
the
best
controlled
similar
source
in
the
new
source
MACT
context,
and
because
it
is
not
unprecedented
for
us
to
look
outside
the
relevant
category
or
subcategory
in
identifying
the
average
emission
limitation
achieved
by
the
best­
controlled
existing
sources
if
doing
so
enables
us
to
best
estimate
what
the
relevant
existing
sources
have
achieved.

Id.
However,
this
approach
cannot
be
reconciled
with
the
clear
language
of
subsection
112(
d)(
3)
defining
the
MACT
floor
based
on
the
performance
of
sources
"
in
the
category
or
subcategory."
42
U.
S.
C.
§
7412(
d)(
3).
What
this
indicates
is
that
if
EPA
were
authorized
to
and
did
subcategorize
based
on
risk,
it
would
not
be
authorized
to
establish
MACT
floors
for
the
non­
low­
risk
subcategory
based
on
sources
in
the
low­
risk
45
subcategory.
This
problem
demonstrates
that
EPA's
interpretation
is
flawed;
the
Act
requires
floors
to
be
established
for
subcategories
during
the
rulemaking
process,
but
EPA's
low­
risk
methodology
ensures
that
the
sources
making
up
the
low­
risk
subcategory
will
not
actually
be
identified
until
some
period
in
time
long
after
the
promulgation
of
the
rule.

Another
reason
that
subsection
112(
c)(
9)(
B)
cannot
be
read
to
authorize
this
rule
is
that
paragraph
(
i)
of
that
subsection
does
not
authorize
EPA
to
delist
subcategories
of
sources
of
carcinogenic
emissions,
allowing
delisting
only
of
categories
of
sources
of
carcinogens.
Confronted
with
this
plain
statutory
language,
and
direct
contradiction
with
the
risk­
based
subcategorization
and
delisting
approach
in
EPA's
final
rule,
EPA
for
the
first
time
in
the
preamble
to
the
final
rule
resorts
to
arguing
that
the
Clean
Air
Act
reflects
"
nothing
more
than
a
drafting
error":
90
.
.
.
we
interpret
the
absence
of
explicit
references
to
subcategories
in
this
introductory
language
and
in
section
112(
c)(
9)(
B)(
i)
as
representing
nothing
more
than
a
drafting
error.

69
Fed.
Reg.
at
45990/
3.
Thus,
EPA's
position
amounts
to
inserting
the
words
"
or
subcategory"
into
the
statute
in
subsections
112(
c)(
9)(
B)
and
112(
c)(
9)(
B)(
i).

This
is
unlawful,
arbitrary
and
capricious,
and
otherwise
an
abuse
of
the
agency's
discretion.
Under
Chevron
Step
One,
467
U.
S.
837
(
1984),
the
plain
language
of
subsection
112(
c)(
9)(
B)
does
not
authorize
EPA
to
delist
subcategories
of
sources
of
carcinogenic
emissions.
EPA
is
entitled
to
no
deference
under
Chevron
Step
Two
on
this
90
Neither
EPA's
claim
nor
the
arguments
intended
to
advance
it
appeared,
even
in
summary
form,
in
the
notice
of
proposed
rulemaking.
See
68
Fed.
Reg.
at
1301/
2­
3.
Consequently,
the
grounds
for
NRDC's
objection
to
EPA's
interpretation
arose
after
the
period
for
public
comment
had
ended.
The
objection
is
thus
appropriately
raised
in
this
petition.
See
42
U.
S.
C.
§
7607(
d)(
7)(
B).
Moreover,
the
objection
is
"
of
central
relevance
to
the
outcome
of
the
rule,"
id.,
because
it
demonstrates
that
the
rule
contravenes
the
Clean
Air
Act
and
is
arbitrary
and
capricious.
46
question
of
statutory
interpretation.
See
Appalachian
Power
Co.
v.
EPA,
249
F.
3d
1032
(
D.
C.
Cir.
2001)
("
we
do
not
give
an
agency
alleging
a
scrivener's
error
the
benefit
of
Chevron
step
two
deference,
by
which
the
court
credits
any
reasonable
construction
of
an
ambiguous
statute.
Rather,
the
agency
`
may
deviate
no
further
from
the
statute
than
is
needed
to
protect
congressional
intent.'
Id.").

The
standard
is
extremely
high
for
overcoming
the
plain
meaning
of
a
statute
and
rewriting
the
law
on
the
basis
of
an
alleged
"
drafting
error,"
as
EPA
attempts
to
do
here.

That
is
especially
true
where
EPA
is
asserting
not
just
one
but
two
instances
in
which
Congress
allegedly
committed
a
scrivener's
error.
A
leading
Supreme
Court
decision
addressing
the
question
of
an
alleged
scrivener's
error,
for
example,
provides
that
the
availability
of
this
excuse
turns
on
whether
a
statute's
plain
meaning
is
"
overwhelm[
ed
by]
evidence
from
the
structure,
language,
and
subject
matter
of
the"
statute,
such
that
it
is
clear
that
Congress
made
a
"
scrivener's
error."
Nat'l
Bank
of
Oregon
v.
Independent
Ins.
Agents
of
America,
Inc.,
508
U.
S.
439,
462
(
1993).

Likewise,
the
D.
C.
Circuit
says
this
about
the
scrivener's
error
doctrine:

Reading
a
statute
contrary
to
its
seemingly
clear
meaning
is
permissible
"[
i]
f
'
the
literal
application
of
a
statute
will
produce
a
result
demonstrably
at
odds
with
the
intentions
of
its
drafters.'"
Mova
Pharm.
Corp.
v.
Shalala,
140
F.
3d
1060,
1068
(
D.
C.
Cir.
1998)
(
quoting
United
States
v.
Ron
Pair
Enterprises,
489
U.
S.
235,
242,
109
S.
Ct.
1026,
103
L.
Ed.
2d
290
(
1989)).
We
will
not,
however,
invoke
this
rule
to
ratify
an
interpretation
that
abrogates
the
enacted
statutory
text
absent
an
extraordinarily
convincing
justification:

[
T]
he
court's
role
is
not
to
`
correct'
the
text
so
that
it
better
serves
the
statute's
purposes,
for
it
is
the
function
of
the
political
branches
not
only
to
define
the
goals
but
also
to
choose
the
means
for
reaching
them....
Therefore,
for
the
EPA
to
avoid
a
literal
interpretation
at
Chevron
step
one,
it
must
show
either
that,
as
a
matter
of
historical
fact,
Congress
did
not
mean
what
it
appears
to
have
said,
or
that,
as
a
matter
of
logic
and
statutory
structure,
it
almost
surely
could
not
have
meant
it.
47
Engine
Mfrs.
Ass'n
v.
EPA,
88
F.
3d
1075,
1089
(
D.
C.
Cir.
1996).

Appalachian
Power
Co.
v.
EPA,
249
F.
3d
1032,
1041
(
D.
C.
Cir.
2001).
A
more
recent
D.
C.
Circuit
decision
declines
to
characterize
a
statutory
reading
as
a
"
scrivener's
error"

so
long
as
there
is
a
"
plausible
interpretation"
to
the
literal
statutory
language.
Williams
Companies
v.
F.
E.
R.
C.,
345
F.
3d
910,
912
(
D.
C.
Cir.
2003).

EPA's
preambular
arguments
do
not
come
close
to
providing
the
"
extraordinarily
convincing
justification,"
Appalachian
Power
Co.,
249
F.
3d
at
1041,
needed
to
abrogate
the
plain
statutory
language
of
section
112(
c)(
9)(
B).
Nor
does
EPA
offer
 
since
there
is
nothing
to
offer
 
"
overwhelming
evidence
from
the
structure,
language,
and
subject
matter
of
the"
Clean
Air
Act
to
make
clear
that
Congress
committed
a
scrivener's
error
in
§
112(
c)(
9)(
B).
Nat'l
Bank
of
Oregon,
508
U.
S.
at
462.
Finally,
there
is
more
than
sufficient
"
plausible
interpretation"
of
section
112(
c)(
9)(
B)
to
deny
EPA's
attempt
to
rewrite
the
statute.

EPA's
preamble
offers
essentially
four
arguments
to
justify
its
drafting
error
conclusion,
none
of
which
 
individually
or
collectively
 
provides
the
extraordinarily
convincing
justification
needed
to
contradict
the
plain
statutory
language.
The
agency's
first
argument
is
entirely
conclusory
and
offers
no
explanation,
much
less
an
extraordinarily
convincing
justification.
69
Fed.
Reg.
at
45990/
3
("
This
construction
is
logical
in
the
context
of
the
general
regulatory
scheme
established
by
the
statute
.
.
.
.).

As
we
discuss
below,
it
is
equally
and
more
logical
to
adhere
to
the
plain
language
of
the
statute.

Second,
EPA
offers
a
non
sequitur
that
fails
to
advance
its
argument
and,
in
fact,

undermines
it.
Id.
("
and
it
is
the
most
reasonable
[
construction]
because
section
48
112(
c)(
9)(
B)(
ii)
expressly
refers
to
subcategories.")
The
reference
to
"
subcategory"
in
subsection
112(
c)(
9)(
B)(
ii)
merely
reinforces
the
omission
of
that
language
in
subsection
112(
c)(
9)(
B)(
i),
and
shows
that
Congress
understood
the
distinction
between
categories
and
subcategories,
and
how
to
include
subcategories
when
it
wished.
See
also
42
U.
S.
C.

§
7412(
c)(
9)(
A)
(
providing
only
for
delisting
of
a
"
source
category").
The
most
reasonable
conclusion
from
subsection
112(
c)(
9)(
B)(
ii)'
s
reference
to
subcategory,
then,

is
that
Congress
wished
to
include
it
here,
but
not
in
the
other
provisions
of
subsection
112(
c)(
9).

Third,
the
agency
argues
that
"[
u]
nder
a
literal
reading
of
section
112(
c)(
9)(
B),
no
subcategory
could
ever
be
delisted,
notwithstanding
the
explicit
reference
to
subcategories,
since
the
introductory
language
of
section
112(
c)(
9)(
B)
provides
explicit
authority
to
only
delist
categories."
69
Fed.
Reg.
at
45990/
3.
As
an
initial
matter,
the
agency
fails
to
explain
why
even
this
reading
is
an
irrational
one
 
it
is
plausible
that
Congress
did
not
wish
subcategories
to
be
delisted
at
all,
and
structured
subsection
112(
c)(
9)(
B)
accordingly.
The
agency
also
ignores
the
possibility
that
the
word
"
subcategory"
in
subsection
112(
c)(
9)(
B)(
ii)
is
a
drafting
error.

But
more
important,
a
claimed
internal
contradiction
between
subsections
112(
c)(
9)(
B)(
ii)
and
§
112(
c)(
9)(
B)
does
not
indicate
any
internal
contradiction
between
subsections
112(
c)(
9)(
B)(
ii)
and
§
112(
c)(
9)(
B)(
i).
It
is
highly
revealing
that
EPA
does
not
and
cannot
claim
any
internal
contradiction
between
subsections
112(
c)(
9)(
B)(
ii)
and
§
112(
c)(
9)(
B)(
i).
The
absence
of
any
authority
in
subsection
112(
c)(
9)(
B)(
i)
 
regardless
of
what
subsection
112(
c)(
9)(
B)
says
­­
is
sufficient
to
prevent
EPA
from
delisting
subcategories
of
sources
of
carcinogens.
49
Continuing
with
this
last
line
of
argument,
EPA
argues
that
a
"
literal"
reading
of
subsection
112(
c)(
9)(
B)

makes
no
sense,
at
the
very
least
because
Congress
plainly
assumed
we
might
also
delist
another
collection
of
sources
besides
either
categories
or
subcategories,
even
in
the
case
of
sources
of
carcinogens.
Both
sections
112(
c)(
9)(
B)(
i)
and
(
ii)
refer
additionally
to
groups
of
sources
in
the
case
of
area
sources
as
being
eligible
for
delisting,
even
though
only
a
category
of
sources
is
specifically
identified
as
eligible
for
delisting
in
the
introductory
language
of
section
112(
c)(
9)(
B).

Id.
at
45990/
3.
These
arguments
utterly
fail
to
provide
the
extraordinarily
convincing
justification
needed
to
delist
subcategories
for
sources
emitting
carcinogens
under
subsection
112(
c)(
9)(
B)(
i).

EPA
has
authority
to
delist
a
"
group
of
sources
in
the
case
of
area
sources"
under
subsections
112(
c)(
9)(
B)(
i)
and
112(
c)(
9)(
B)(
ii)
because
those
provisions
specifically
authorize
such
delisting.
That
is
precisely
our
point
­­
subsection
112(
c)(
9)(
B)(
i)
does
not
authorize
at
all
the
delisting
of
subcategories
for
sources
emitting
carcinogens,

because
it
does
not
contain
the
words
"
or
subcategory"
as
subsection
112(
c)(
9)(
B)(
ii)

does.
Indeed,
the
structure
of
the
key
sentences
in
subsections
112(
c)(
9)(
B)(
i)
and
112(
c)(
9)(
B)(
ii)
 
with
the
parentheticals
("
group
of
sources
in
the
case
of
area
sources")

following
the
words
"
category"
in
subsection
112(
c)(
9)(
B)(
i)
and
"
category
or
subcategory
concerned"
in
subsection
112(
c)(
9)(
B)(
ii)
 
make
clear
that
Congress
was
defining
(
for
its
purpose
here)
"
group
of
sources
in
the
case
of
area
sources"
as
an
included
subset
eligible
for
delisting.
This
is
the
most
sensible,
natural
reading
of
these
sentences,
and
"
makes
no
sense"
to
EPA
only
because
the
agency
is
attempting
to
write
words
into
the
statute
that
are
not
there
and,
in
service
of
this
project,
must
resort
to
reading
other
parts
of
the
statute
in
a
similarly
tortured,
conforming
manner.
50
Again,
it
is
highly
revealing
that
EPA
does
not
and
cannot
claim
any
internal
contradiction
between
subsection
112(
c)(
9)(
B)(
i)
and
the
fact
that
EPA
has
authority
to
delist
a
"
group
of
sources
in
the
case
of
area
sources"
under
subsections
112(
c)(
9)(
B)(
i)

and
112(
c)(
9)(
B)(
ii).
The
absence
of
any
authority
in
subsection
112(
c)(
9)(
B)(
i)
 
regardless
of
what
the
introductory
language
of
subsection
112(
c)(
9)(
B)
says
­­
is
sufficient
to
prevent
EPA
from
delisting
subcategories
of
sources
of
carcinogens.

EPA's
arguments
fail
to
provide
the
"
overwhelming
evidence
from
the
structure,

language,
and
subject
matter
of
the"
Clean
Air
Act
needed
to
prove
that
Congress
made
a
"
scrivener's
error"
not
once,
but
twice
in
subsection
112(
c)(
9)(
B).
Nat'l
Bank
of
Oregon,

508
U.
S.
at
462;
see
also
Appalachian
Power
Co.,
249
F.
3d
at
1041
("
for
the
EPA
to
avoid
a
literal
interpretation
at
Chevron
step
one,
it
must
show
either
that,
as
a
matter
of
historical
fact,
Congress
did
not
mean
what
it
appears
to
have
said,
or
that,
as
a
matter
of
logic
and
statutory
structure,
it
almost
surely
could
not
have
meant
it.
Engine
Mfrs.
Ass'n
v.
EPA,
88
F.
3d
1075,
1089
(
D.
C.
Cir.
1996).")
EPA
presents
no
"
historical
fact"
 
in
the
form
of
legislative
history
or
otherwise
 
to
override
subsection
112(
c)(
9)(
B)'
s
failure
to
authorize
delisting
for
subcategories
of
carcinogen­
emitting
sources.
91
Nor
does
the
language,
logic
or
statutory
structure
of
the
Act
even
support
EPA's
reading,
much
less
provide
the
"
extraordinarily
convincing
justification"
needed
to
override
the
literal
language,
as
discussed
above.
EPA
utterly
fails
to
show
that
"
the
literal
application
of
[
the
Act]
will
produce
a
result
demonstrably
at
odds
with
the
intentions
of
its
drafters."

91
Indeed,
there
is
legislative
history
confirming
§
112(
c)(
9)(
B)(
i)'
s
availability
only
for
categories
and
not
subcategories.
Legis.
Hist.
at
5201
("
MACT
standards
are
not
required
for
source
categories
that
pose
less
than
a
1­
in­
1,00,000
risk
of
cancer.)
(
emphasis
added).
Having
failed
to
demonstrate
that
the
statutory
provisions
are
at
odds
with
Congressional
intent,
EPA
additionally
fails
to
"
offer[]
a
convincing
account"
 
much
less
any
account
 
"
of
how
[
the
provisions]
came
to
be
enacted
nevertheless."
Appalachian
Power
Co.,
249
F.
3d
at
1043.
EPA's
reading
represents
a
far
cry
from
the
section
126
cross­
reference
in
Appalachian
Power
Co.,
where
the
court
found
it
"
quite
plausible
that
the
Congress
substituted
`(
ii)'
for
`(
i)'
in
§
126
inadvertently
in
the
course
of
a
routine
renumbering
of
statutory
cross­
references."
Id.
51
Mova
Pharm.
Corp.
v.
Shalala,
140
F.
3d
1060,
1068
(
D.
C.
Cir.
1998)
(
internal
citations
omitted).

The
"
subject
matter"
of
subsection
112(
c)(
9)(
B)(
i),
Nat'l
Bank
of
Oregon,
508
U.
S.
at
462,
provides
more
than
sufficiently
"
plausible
interpretation"
(
Williams
Companies,
345
F.
3d
at
912)
why
the
statute
does
not
authorize
delisting
for
subcategories
of
carcinogen­
emitting
sources:
because
this
provision
addresses
carcinogens,
Congress
adopted
tighter
restrictions
on
the
deregulatory
action
of
delisting
in
the
same
manner
that
it
did
for
the
governing
delisting
criteria.
Just
as
subsection
112(
c)(
9)(
B)(
i)
is
more
restrictive
than
subsection
112(
c)(
9)(
B)(
ii)
in
not
authorizing
delisting
of
subcategories,
subsection
112(
c)(
9)(
B)(
i)
contains
more
restrictive,
thus
more
protective,
delisting
criteria
("
lifetime
risk
of
cancer
greater
than
one
in
one
million
to
the
individual
in
the
population
who
is
most
exposed"
versus
for
non­
carcinogens,
"
adequate
to
protect
public
health
with
an
ample
margin
of
safety
and
no
adverse
environmental
effect").
It
is
eminently
reasonable,
and
certainly
more
than
plausible,
for
Congress
to
adopt
more
restrictive
conditions
for
carcinogens,
as
Congress
did
here
and
elsewhere
in
the
statute.
See
also
42
U.
S.
C.
§
7412(
f)(
2)(
A).

There
is
no
contradiction,
much
less
illogic,
between
subsection
112(
c)(
9)(
B)(
i)'
s
authorization
of
delisting
for
categories
and
groups
of
sources
in
the
case
of
area
sources
that
emit
carcinogens,
and
failure
to
authorize
delisting
for
subcategories.
Congress
easily
could
have
concluded
it
would
be
more
difficult
to
make
a
category­
wide
showing
under
the
rigorous
criteria
of
subsection
112(
c)(
9)(
B)(
i),
with
the
"
no
source
in
the
category"

condition
and
one­
in­
one­
million
lifetime
cancer
risk
standard;
thus,
EPA
would
be
unable
to
make
that
showing
very
often.
In
the
rare
instance
in
which
EPA
could
make
52
the
necessary
showings,
however,
with
respect
to
every
source
in
the
category,
then
it
should
be
able
to
delist
every
source.
Put
differently,
in
the
case
of
sources
that
emit
carcinogens,
the
inability
to
delist
just
a
portion
of
the
category
makes
it
harder
for
EPA
to
fail
to
regulate
such
sources
using
the
MACT
approach.

For
all
of
these
reasons,
subsection
112(
c)(
9)(
B)
cannot
be
read
to
authorize
EPA's
rule.
OGC
reached
the
same
conclusion
in
the
March
4,
2002
memorandum:

[
S]
ubcategorization
based
on
the
112(
c)(
9)
risk
criteria
would
seem
to
circumvent
the
very
limits
included
in
section
112(
c)(
9).
If
individual
sources
could
demonstrate
they
are
"
low
risk"
and
therefore
should
be
subcategorized
and
delisted,
the
limitation
that
delisting
is
only
appropriate
when
"
no
source"
in
the
category
or
subcategory
presents
a
risk
to
public
health
would
become
meaningless.
Any
subset
of
sources,
including
a
single
source,
could
be
delisted
if
the
sources
can
demonstrate
they
meet
the
criteria
for
delisting.
This
is
inconsistent
with
the
language
is
112(
c)(
9)
and
results
in
a
regulatory
approach
equivalent
to
the
one
Congress
specifically
rejected
in
H.
R.
3030.

OGC
Memo
at
11;
see
also
id.
(
subsection
112(
c)(
9)
"
clearly
not
intended
to
provide
the
type
of
source­
by­
source
delisting
that
risk­
based
subcategorization
would
allow.").
The
agency
has
not
acknowledged
 
much
less
resolved
 
the
contradiction
between
the
conclusions
in
its
final
rule
and
the
evidence
that
OGC
found
determinative
of
an
opposite
conclusion.
For
that
reason
alone,
the
rule
is
arbitrary
and
capricious.
See
Motor
Vehicle
Mfrs.
Ass'n,
463
U.
S.
at
43.92
c.
EPA's
other
arguments
confirm
the
conflict
with
Congressional
intent.

In
the
preamble
to
the
final
rule,
EPA
offers
a
raft
of
arguments
in
an
unsuccessful
attempt
to
demonstrate
that
its
rule
is
consistent
with
Congress's
intent
in
92
This
objection
of
arbitrariness
and
capriciousness
is
appropriately
raised
in
this
petition,
and
is
of
central
relevance
to
the
outcome
of
the
rule,
for
the
reasons
stated
supra,
n.
84.
53
enacting
subsections
112(
c)
and
112(
d).
69
Fed.
Reg.
at
45988/
3­
90/
1.
An
examination
of
EPA's
unavailing
arguments
simply
confirms
that
the
rule
thwarts
Congress's
intent.
93
First,
EPA
posits
a
Congressional
concern
"
that
undue
burdens
not
be
placed
on
groups
of
sources
within
the
PCWP
source
category
whose
HAP
emissions
are
demonstrated
to
present
little
risk
to
public
health
and
the
environment."
Id.
at
45989/
1;

see
also
id.
("
Congress's
intent
that
we
be
able
to
find
that
sources,
such
as
those
in
the
PCWP
category
whose
HAP
emissions
are
below
identified
risk
levels,
should
not
necessarily
be
subject
to
MACT");
id.
at
45989/
2
("
Congressional
intent
not
to
unnecessarily
burden
low­
risk
PCWP
facilities
by
forcing
them
to
meet
stringent
MACT
controls
when
they
already
meet
the
risk­
based
goals
of
section
112").
EPA
is
plainly
mistaken,
however,
because,
as
shown
above
(
and
as
OGC
concluded),
the
language
of
paragraphs
(
i)
and
(
ii)
in
subsection
112(
c)(
9)(
B)
unambiguously
evinces
Congressional
intent
to
impose
the
burdens
of
MACT
standards
on
all
of
the
members
of
a
category
even
if
only
one
of
those
members
has
HAP
emissions
presenting
the
risks
identified
in
the
paragraphs.
42
U.
S.
C.
§
7412(
c)(
9)(
B)(
i),
(
ii);
OGC
Memo
at
10
("[
I]
f
a
category
or
subcategory
contains
even
a
single
source
that
poses
a
risk
over
these
thresholds,
all
of
the
sources
in
the
category
or
subcategory
will
be
subject
to
MACT.").
Indeed,
some
in
Congress
criticized
the
version
of
section
112
that
ultimately
was
enacted
precisely
because
that
version
"
imposes
MACT
requirements,
regardless
of
whether
the
93
Neither
EPA's
interpretation
of
the
purposes
of
section
112,
nor
the
arguments
intended
to
advance
that
interpretation,
appeared,
even
in
summary
form,
in
the
notice
of
proposed
rulemaking.
See
68
Fed.
Reg.
at
1301/
2­
3.
Consequently,
the
grounds
for
NRDC's
objection
to
EPA's
interpretation
arose
after
the
period
for
public
comment
had
ended.
The
objection
is
thus
appropriately
raised
in
this
petition.
See
42
U.
S.
C.
§
7607(
d)(
7)(
B).
Moreover,
the
objection
is
"
of
central
relevance
to
the
outcome
of
the
rule,"
id.,
because
it
demonstrates
that
the
rule
contravenes
the
Clean
Air
Act
and
is
arbitrary
and
capricious.
54
hypothetical
risk
is
large,
small,
or
negligible."
Remarks
of
Senator
Symms
during
the
Senate
Debate
(
Oct.
27,
1990),
reprinted
in
1
Legis.
Hist.
at
752.
As
OGC
puts
it:

The
fact
that
MACT
requires
emission
reductions
in
nonthreshold
pollutants
irrespective
of
risk,
the
fact
that
Congress
called
for
the
technology­
based
standards
under
112(
d)
to
prohibit
or
eliminate
emissions
where
achievable,
the
fact
that
technology­
based
standards
may
not
be
relevant
to
levels
equated
with
an
ample
margin
of
safety
and
the
fact
that
technology­
based
standards
must
be
periodically
reviewed
to
keep
up
with
developments
in
technology,
all
are
inconsistent
with
the
assertion
that
Congress
only
intended
to
regulate
high­
risk
sources.

OGC
Memo
at
10.
The
agency's
failure
to
acknowledge
 
much
less
resolve
 
the
contradiction
between
the
conclusions
in
its
final
rule
and
the
evidence
that
OGC
found
determinative
of
an
opposite
conclusion
renders
the
rule
arbitrary
and
capricious.
See
Motor
Vehicle
Mfrs.
Ass'n,
463
U.
S.
at
43.94
Because
EPA's
false
conception
of
Congressional
intent
is
the
only
basis
for
the
agency's
allegation
of
"
tension
between
the
arguably
restrictive
language
of
section
112(
c)(
1)
and
the
Congressional
intent
behind
section
112(
c)(
9),"
69
Fed.
Reg.
45989/
2,

EPA's
claim
that
its
rule
is
"
reasonable
.
.
.
as
a
way
to
reconcile"
(
id.)
that
imaginary
tension
collapses
as
well.
Moreover,
even
if,
arguendo,
EPA's
rule
did
represent
a
"
reasonable"
accommodation
of
competing
policies,
the
rule
still
would
be
unlawful
because
"
it
is
not
the
accommodation
the
Congress
made."
Sierra
Club
v.
EPA,
294
F.
3d
155,
161
(
D.
C.
Cir.
2002).

Second,
EPA
claims
that
Congress
did
not
intend
to
preclude
the
agency,
in
deleting
categories
or
subcategories
under
subsection
112(
c)(
9)(
B),
from
using
"
criteria
other
than
those
traditionally
used
under
section
111
before
1990,
or
those
used
after
94
This
objection
of
arbitrariness
and
capriciousness
is
appropriately
raised
in
this
petition,
and
is
of
central
relevance
to
the
outcome
of
the
rule,
for
the
reasons
stated
supra
n.
84.
55
1990
for
sections
111
and
112."
69
Fed.
Reg.
at
45989/
1;
id.
at
45989/
1­
2
("
while
after
1990
we
have
principally
used
the
traditional
criteria
to
define
categories
and
subcategories,
such
use
in
general
does
not
restrict
how
we
may
define
a
subcategory
in
a
specific
case");
id.
at
45989/
3
("
Congress
in
section
112(
c)(
1)
clearly
did
not
absolutely
prohibit
us
from
basing
categories
and
subcategories
on
other
criteria
generally.").
But
that
claim
is
irrelevant,
because
even
if
it
were
true,
it
would
not
alter
the
fact
that
Congress
did
preclude
the
source­
by­
source,
risk­
based
approach
that
EPA
has
adopted
in
this
rule.

Third,
even
if
the
Act's
language
is
"
clear
on
its
face"
in
precluding
the
approach
adopted
in
this
agency
rule,
EPA
believes
that
"
as
a
matter
of
historical
fact,"
Congress
could
not
have
meant
what
it
said
and
that,
"
as
a
matter
of
logic
and
statutory
structure,
it
almost
surely
could
not
have
meant
it."
Id.
at
45989/
2
(
citing
Engine
Mfrs.
Ass'n,
88
F.
3d
at
1089).
In
the
same
breath,
however,
EPA
repeatedly
concedes
that
Congress
could
have
meant
what
it
said
and,
indeed,
may
well
have.
Id.
at
45989/
1
("[
W]
e
recognize
that,
at
the
time
of
the
1990
CAA
Amendments,
Congress
may
have
assumed
that
we
would
generally
base
categories
and
subcategories
on
the
traditional
technological,
process,
output,
and
product
factors
that
had
been
considered
under
CAA
section
111.");
id.
at
45989/
2
("
Congress
[]
in
1990
likely
did
not
fully
anticipate
the
policy
considerations
that
come
into
play
in
regulating
HAP
emissions
from
PCWP
affected
sources");
id.
at
45990/
1
("
At
the
time
of
the
1990
Amendments,
Congress
did
not
consider
it
necessary
to
provide
express
relief
for
additional
groups
such
as
low­
risk
PCWP
facilities,
beyond
those
defined
by
traditional
category
and
subcategory
criteria,

because
it
assumed
we
could
implement
a
comprehensive
regulatory
scheme
for
air
56
toxics
that
would
both
address
situations
where
technology­
based
standards
were
needed
to
reduce
source
HAP
emissions
to
levels
closer
to
the
risk­
based
goals
of
section
112,

and
avoid
the
unnecessary
imposition
of
technology­
based
requirements
on
groups
of
sources
that
were
already
meeting
those
goals.");
id.
("
context
turned
out
to
be
more
complex
than
Congress
anticipated").
Those
concessions
alone
prevent
the
agency
from
making
the
"
extraordinarily
convincing
justification"
needed
to
pass
the
Engine
Manufacturers
test.
See
Appalachian
Power
Co.,
249
F.
3d
at
1041.
EPA
further
undermines
its
pronouncement
as
to
what
Congress
could
have
and
did
mean
when
the
agency
acknowledges
that,
in
the
few
circumstances
where
Congress
found
regulatory
relief
for
low­
risk
HAP
sources
to
be
appropriate,
it
explicitly
authorized
EPA
to
provide
that
relief.
69
Fed.
Reg.
at
45989/
3­
90/
1.
After
all,
EPA
does
not
claim
 
nor
could
it
 
that
Congress
explicitly
authorized
the
agency
to
extend
HAP
sources
the
regulatory
relief
that
this
rule
provides.
69
Fed.
Reg.
at
45989/
1;
see
Sierra
Club,
294
F.
3d
at
160
("
We
cannot
but
infer
from
the
presence
of
these
specific
exemptions
that
the
absence
of
any
other
exemption
.
.
.
was
deliberate,
and
that
the
Agency's
attempt
to
grant
such
a
dispensation
is
contrary
to
the
intent
of
Congress.").

EPA
is
left,
finally,
with
the
claim
that
had
Congress
known
that
"
in
the
case
of
PCWP
facilities
there
is
no
clear
differentiation
between
high­
versus
low­
risk
sources
that
corresponds
to
our
traditional
approach
for
identifying
source
categories
and
subcategories,"
it
is
"
reasonable
to
conclude"
that
Congress
would
not
have
wanted
EPA
to
be
without
the
authority
to
exempt
individual
PCWP
sources
solely
on
the
basis
of
risk.
Id.
at
45990/
1.
But,
as
shown
above,
EPA
has
failed
to
find
any
support
for
that
conclusion
in
the
text
or
legislative
history
of
section
112.
Whether
or
not
Congress
57
anticipated
the
"
complex"
situation
that
EPA
alleges,
it
is
clear
that
Congress
did
not
want
EPA
extending
HAP
sources
the
regulatory
relief
that
this
rule
provides.
EPA's
belief
that
Congress
would
have
decided
differently
in
1990
if
only
it
knew
then
what
EPA
knows
now
cannot
justify
action
that
contravenes
unambiguous
statutory
commands.
See
Engine
Mfrs.
Ass'n
v.
EPA,
88
F.
3d
1075,
1088
(
D.
C.
cir.
1996)
("
the
court's
role
is
not
to
`
correct'
the
text
so
that
it
better
serves
the
statute's
purposes").

7.
EPA
Must
Reconsider
its
Grant
of
an
Unlawful
Compliance
Extension
to
Existing
Sources.

EPA's
final
rule
grants
an
unlawful
compliance
extension
to
existing
sources
that
become
subject
to
the
MACT
standard
after
no
longer
qualifying
for
the
agency's
(
unlawfully
created)
low­
risk
subcategory:
95
If
you
are
operating
outside
of
the
low­
risk
subcategory
due
to
a
population
shift
or
change
to
dose­
response
values,
then
you
must
comply
with
all
of
the
applicable
requirements
of
40
CFR
part
63,
subpart
DDDD
no
later
than
three
years
from
the
date
your
affected
source
commences
operating
outside
the
lowrisk
subcategory.

69
Fed.
Reg.
45955/
2­
3.
This
result
contravenes
the
plain
language
of
the
statute
and
is
otherwise
arbitrary,
capricious,
and
an
abuse
of
the
agency's
discretion.
EPA
offers
no
legal
justification
or
rationale
for
this
result,
and
there
is
none.

For
each
category
or
subcategory
of
existing
sources,
the
Act
requires
compliance
as
expeditiously
as
practicable,
but
in
no
event
later
than
3
years
after
the
effective
date
of
such
standard,
except
as
provided
in
subparagraph
(
B)
and
paragraphs
(
4)
through
(
8).

CAA
§
112(
i)(
3)(
A).
EPA's
3­
year
compliance
extension
for
existing
sources
previously
covered
by
EPA's
illegal
exemption
violates
the
plain
language
of
section
112(
i)(
3)(
A).

95
The
proposed
rule
gave
no
indication
that
a
final
rule
would
adopt
such
an
illegal
compliance
extension.
58
The
approach
represented
by
this
unlawful
compliance
extension
does
not
qualify
for
any
of
the
enumerated
exceptions
provided
for
in
this
section.
96
Because
the
effective
date
for
the
standard
is
September
28,
2004,
see
69
Fed.
Reg.
at
45944/
2,
existing
sources
may
not
"
operat[
e]
outside
the
low­
risk
subcategory"
(
id.
at
45955/
3)
after
September
28,

2007
without
complying
with
the
standard
or
they
will
be
in
violation
of
the
Act.
For
EPA
to
claim
otherwise
is
unlawful.

Section
112(
d)(
1)
provides
further
proof
that
EPA
may
not
delay
the
compliance
date
for
existing
sources
in
the
name
of
the
illegal
low­
risk
subcategory
that
EPA
has
created
 
or,
indeed,
in
the
name
of
subcategorization
generally:

The
Administrator
may
distinguish
among
classes,
types,
and
sizes
of
sources
within
a
category
or
subcategory
in
establishing
such
standards
except
that,
there
shall
be
no
delay
in
the
compliance
date
for
any
standard
applicable
to
any
source
under
subsection
(
i)
of
this
section
as
the
result
of
the
authority
provided
by
this
sentence.

CAA
§
112(
d)(
1)
(
emphasis
added).
Even
if
EPA
is
relying
upon
section
112(
d)(
1)
"
to
distinguish
among
classes,
types,
and
sizes
of
sources
within
a
category"
(
69
Fed.
Reg.
at
45984/
1)
to
create
its
low­
risk
subcategory,
this
section
makes
clear
that
this
fact
provides
no
authority
for
the
final
rule's
illegal
compliance
extension.
Having
identified
no
legal
authority
for
this
compliance
extension
whatsoever,
and
having
failed
to
propose
such
an
extension
in
the
first
instance,
the
agency
must
reconsider
this
unlawful
grant
of
extension.

96
The
approach
does
not
fit
section
112(
i)(
3)(
B),
which
at
any
rate
allows
only
a
1­
year
extension
necessary
for
the
installation
of
controls,
and
may
only
be
carried
out
through
a
Title
V
permit.
Nor
does
the
approach
qualify
for
the
Presidential
exemption
under
section
112(
i)(
4),
early
reductions
under
section
112(
i)(
5),
other
reductions
under
section
112(
i)(
6),
the
extension
for
new
sources
under
section
112(
i)(
7),
or
the
coke
ovens
relief
under
section
112(
i)(
8).
Indeed,
EPA
does
not
claim
that
any
of
these
exemptions
or
extensions
apply.
59
8.
EPA
Must
Reconsider
the
Final
Rule's
Startup,
Shutdown
&
Malfunction
Provisions.

EPA's
proposed
and
final
rules
each
contain
provisions
concerning
sources'

obligations
during
periods
of
startup,
shutdown,
and
malfunction
(
SSM),
but
the
final
rule
requirements
vary
significantly
from
those
that
were
proposed.
In
particular,
EPA
replaced
the
SSM
approach
in
the
proposal
with
one
based
on
recently­
amended
General
Provisions,
and
thus
did
not
provide
commenters
on
the
PCWP
rule
with
the
opportunity
to
comment
on
applying
these
requirements
in
the
context
of
the
PCWP
rule.
As
discussed
below,
the
changes
to
the
SSM
requirements
reflected
in
the
final
rule
are
arbitrary
and
capricious
and
unlawful.

A.
Proposed
Rule.

EPA's
proposed
rule
referred
to
the
SSM
provisions
of
the
MACT
General
Provisions
as
they
existed
in
January
2003,97
and
accordingly
permitted
sources
to
avoid
compliance
with
emission
standards
during
periods
of
SSM,
so
long
as
those
sources
were
in
compliance
with
their
self­
written
SSM
plans
(
SSMP).
In
particular,
the
proposed
rule's
section
63.2771(
b)(
1)­(
2)
provided:

(
1)
During
periods
of
startup,
shutdown,
or
malfunction,
you
must
operate
in
accordance
with
the
SSMP.

(
2)
Consistent
with
§
63.6(
e)
and
63.7(
e)(
1),
deviations
that
occur
during
a
period
of
startup,
shutdown,
or
malfunction
are
not
violations
if
you
demonstrate
to
the
Administrator's
satisfaction
that
you
were
operating
in
accordance
with
the
SSMP.

68
Fed.
Reg.
at
1318/
1.

B.
Final
Rule.

97
See
68
Fed.
Reg.
at
1,313
(
proposed
40
C.
F.
R.
§
§
63.2250(
a)­(
d)).
60
After
the
comment
period
for
EPA's
proposed
PWCP
regulations
expired
but
before
the
agency
issued
its
final
PWCP
regulations,
the
agency
amended
the
General
Provisions'
SSM
requirements.
68
Fed.
Reg.
32586
(
May
30,
2003).
See
69
Fed.
Reg.
at
45983/
1.
In
its
General
Provisions
amendments,
the
agency
expressly
acknowledged
that
 
contrary
to
the
position
EPA
espoused
in
the
proposed
PWCP
rule
 
compliance
with
self­
written
SSM
plans
cannot
insulate
sources
from
liability
for
exceeding
emission
limits
during
periods
of
SSM.
68
Fed.
Reg.
at
32589­
32590.
Unfortunately,
in
correcting
this
problem,
EPA's
rulemaking
created
other
(
and
new)
legal
concerns;
for
instance,
the
agency's
rule
unlawfully
restricts
public
access
to
information
contained
in
SSM
plans.
40
C.
F.
R.
§
63.6(
e)(
3)(
A)(
v).
See
Ex.
__
(
petition
for
reconsideration
of
amended
General
Provisions).
As
a
result,
the
amended
general
provisions
are
now
in
litigation.
69
Fed.
Reg.
at
45983/
1.
See
Ex.
__
(
comments
on
proposed
amendments
to
General
Provisions);
Ex.
__
(
non­
binding
statement
of
issues
in
lawsuit
challenging
amended
General
Provisions).

In
its
final
PWCP
rule,
EPA's
SSM
requirements
referenced
the
amended
General
Provisions
that
the
agency
had
issued
on
May
30,
2003.
The
final
PWCP
rule
states:

Due
to
the
timing
of
the
these
[
sic]
rulemakings,
the
proposed
PWCP
rule
language
did
not
reflect
our
most
recent
decisions
regarding
SSM.
To
avoid
confusion
and
promote
consistency,
we
have
written
the
final
rule
to
reference
the
General
Provisions
directly,
where
applicable,
and
to
be
more
consistent
with
other
more
recently
promulgated
MACT
standards.
Although
the
amendments
to
the
General
Provisions
regarding
SSM
plans
are
currently
involved
in
litigation,
the
rule
requirements
promulgated
on
May
30,
2003
apply
to
the
final
PWCP
unless
and
until
we
promulgate
another
revision.

69
Fed.
Reg.
at
45983/
1.
Thus,
EPA
included
defects
in
the
amended
General
Provisions,
such
as
their
unlawful
restriction
on
public
access
to
SSM
plans,
in
the
final
61
PWCP
rule.
Because
the
amended
General
Provisions
did
not
exist
at
the
time
EPA
issued
its
proposed
PWCP
rule,
the
public
had
no
opportunity
to
comment
on
the
defects
that
the
amended
General
Provisions
contained.

In
addition
to
denying
the
public
any
opportunity
to
comment
on
the
final
PWCP
rule's
reference
to
the
amended
General
Provisions,
EPA
also
denied
the
public
any
opportunity
to
comment
on
another
key
provision
of
the
final
PWCP
rule's
SSM
provisions.
In
the
preamble,
EPA
states:

we
combined
proposed
§
63.2250(
d)
with
proposed
§
63.2250(
a)
and
revised
the
resulting
§
63.2250(
a)
to
clarify
that
the
SSM
periods
mentioned
in
proposed
§
63.2250(
a)
apply
to
both
process
units
and
control
devices
and
to
clarify
when
the
compliance
options,
operating
requirements
and
work
practice
requirements
do
and
do
not
apply.

69
Fed.
Reg.
at
45983
(
emphasis
added).
What
EPA's
preamble
does
not
say
is
that
its
"
clarif[
ication]"
included
dropping
a
key
phrase
and
thus
completely
changing
the
substantive
SSM
requirements.
The
proposed
PWCP
rule
provided
"
startup
and
shutdown
periods
must
not
exceed
the
minimum
amount
of
time
necessary
for
these
events,
and
during
these
events,
you
must
minimize
emissions
to
the
greatest
extent
possible."
68
Fed.
Reg.
at
1313/
1
(
proposed
40
C.
F.
R.
§
63.2250(
d)
(
emphasis
added)).

The
final
rule,
however,
does
not
state
that
sources
"
must
minimize
emissions
to
the
greatest
extent
possible"
during
SSM
periods.
The
public
had
no
opportunity
to
comment
on
that
change.

Accordingly,
because
the
grounds
for
objecting
to
EPA's
new
SSM
provisions
arose
when
EPA
promulgated
its
final
rule
and
because
they
are
of
central
relevance
(
since
they
will
govern
PWCP
plants'
compliance
obligations
during
periods
of
SSM),

EPA
must
convene
a
proceeding
to
reconsider
this
provision.

C.
Grounds
For
Objection.
62
1.
The
SSM
Provisions
Referenced
In
EPA's
Final
PWCP
Rule
Allow
Unlawful
Exceedance
Of
Emission
Standards.

The
amended
General
Provisions
now
referenced
in
the
PWCP
rule
contain
a
limited
exemption
from
sources'
duty
to
comply
with
emission
standards
at
all
times.
40
C.
F.
R.
§
63.6(
e)(
1)(
i).
The
Clean
Air
Act's
air
toxics
provisions,
however,
neither
contain
nor
allow
any
such
exemption.
To
the
contrary,
they
require
"
emission
standards,"
42
U.
S.
C.
§
7412(
d)(
1),
a
term
expressly
defined
in
the
Clean
Air
Act
as
"
a
requirement
established
by
the
State
or
Administrator
which
limits
the
quantity,
rate,
or
concentration
of
emissions
of
air
pollutants
on
a
continuous
basis,
42
U.
S.
C.
§
7602(
k)

(
emphasis
added).
Because
sources'
compliance
with
air
toxics
standards
must
be
"
continuous,"
sources
may
not
avoid
compliance
with
emission
standards
 
or
liability
for
noncompliance
 
during
periods
of
startup,
shutdown
or
malfunction.

Elsewhere,
EPA
has
argued
that
caselaw
allows
an
exemption
from
the
continuous
compliance
requirement
during
SSM
periods
for
standards
that
are
based
on
the
application
and
performance
of
a
specific
control
technology.
Neither
the
caselaw
nor
the
exemption,
however,
apply
to
air
toxics
standards,
which
are
not
based
on
the
application
and
performance
of
a
specific
control
technology
but
instead
must
reflect
the
maximum
degree
of
reduction
that
is
achievable
through
the
application
of
the
full
range
of
emission
reduction
measures.

Assuming
arguendo
that
any
SSM
exemption
from
continuous
compliance
requirements
is
legally
supportable,
the
exemption
provided
in
the
amended
General
Provisions
is
unlawfully
and
unnecessarily
broad.
"
Malfunction"
is
defined
to
include
"
the
failure
of
air
pollution
control
and
monitoring
equipment,
process
equipment,
or
a
63
process
to
operate
in
a
normal
or
usual
manner
which
causes,
or
has
the
potential
to
cause,
the
emission
limitations
in
an
applicable
standard
to
be
exceeded."
40
C.
F.
R.

§
63.2.
Thus,
if
the
failure
of
a
piece
of
equipment
has
the
"
potential"
to
cause
an
exceedance,
the
failure
of
that
equipment
on
any
specific
occasion
qualifies
as
a
"
malfunction"
 
and
may
be
argued
to
excuse
the
source
from
liability
for
exceeding
its
emission
standards
 
even
if
such
failure
did
not
actually
cause
the
exceedance
on
the
occasion
in
question.
For
example,
if
the
failure
of
a
piece
of
monitoring
equipment
has
the
"
potential"
to
cause
an
exceedance
of
emission
standards,
an
exceedance
that
occurs
when
that
piece
of
monitoring
equipment
is
failing
"
to
operate
in
a
normal
or
usual
fashion"
may
qualify
as
a
"
malfunction"
under
the
amended
General
Provisions
even
if
that
exceedance
actually
results
from
another
cause,
such
as
sloppy
operation.
In
short,

EPA's
amended
General
Provisions
may
be
argued
to
excuse
even
preventable
exceedance
of
emission
standards
so
long
as
such
exceedance
takes
place
concurrently
with
an
equipment
failure
that
qualifies
as
a
"
malfunction"
under
EPA's
overly
broad
definition.
Accordingly,
even
if
the
caselaw
relating
to
SSM
exemptions
from
non­
air
toxics
emission
standards
were
applicable
to
air
toxics
standards,
EPA's
SSM
provision
would
be
unlawful.

2.
The
SSM
Provisions
In
EPA's
Final
PWCP
Rule
Are
Internally
Conflicting.

The
final
PWCP
rule
provides
"[
y]
ou
must
always
operate
and
maintain
your
affected
source,
including
air
pollution
control
and
monitoring
equipment,
according
to
the
provisions
in
§
63.6(
e)(
1)(
i)."
40
C.
F.
R.
§
63.2250(
b).
Section
63.6(
e)(
1)(
i)
of
the
amended
General
Provisions
provides
64
At
all
times,
including
periods
of
startup,
shutdown,
and
malfunction,
the
owner
or
operator
must
operate
and
maintain
any
affect
source,
including
associated
air
pollution
control
equipment
and
monitoring
equipment,
in
a
manner
consistent
with
safety
and
good
air
pollution
control
practices
for
minimizing
emissions.
During
a
period
of
startup,
shutdown,
or
malfunction,
this
general
duty
requires
that
the
owner
or
operator
reduce
emissions
from
the
source
to
the
greatest
extent
which
is
consistent
with
safety
and
good
air
pollution
practices.

40
C.
F.
R.
§
63.6(
e)(
1)(
i)
(
emphasis
added).

Section
63.2771
of
the
final
PWCP
rule,
however,
provides
(
1)
During
periods
of
startup,
shutdown,
or
malfunction,
you
must
operate
in
accordance
with
the
SSMP.

(
2)
Consistent
with
§
63.6(
e)
and
63.7(
e)(
1),
deviations
that
occur
during
a
period
of
startup,
shutdown,
or
malfunction
are
not
violations
if
you
demonstrate
to
the
Administrator's
satisfaction
that
you
were
operating
in
accordance
with
the
SSMP.

40
C.
F.
R.
§
§
63.2771(
b)(
1)­(
2)
(
emphasis
added).
Thus,
although
§
63.2250(
b)
of
the
final
PWCP
rule
makes
clear
that
even
during
periods
of
startup,
shutdown
and
malfunction,
owners
and
operators
must
"
reduce
emissions
from
the
source
to
the
greatest
extent
which
is
consistent
with
good
air
pollution
practices,"
§
63.2771
allows
sources
to
avoid
liability
for
exceeding
emission
standards
in
such
periods
just
by
"
demonstrat[
ing]
to
the
Administrator's
satisfaction
that
[
it
was]
operating
in
accordance
with
the
SSMP.
In
short,
the
two
provisions
directly
conflict.

Section
63.2771
is
flatly
unlawful,
as
shown
in
NRDC's
comments
on
the
proposed
rule.
Ex.
__
at
34­
35.
In
addition,
because
the
final
PWCP
rule
contains
conflicting
SSM
provisions,
it
is
arbitrary
and
capricious.
65
3.
The
PWCP
Rule's
Limitations
On
The
Public
Availability
Of
SSM
Plans
Is
Unlawful
And
Arbitrary
And
Capricious.

a.
The
PWCP
Rule's
Limitations
On
The
Public
Availability
Of
SSM
Plans
Is
Unlawful.

The
final
PWCP
rule
provides
"[
y]
ou
must
develop
and
implement
a
written
SSMP
according
to
the
provisions
in
§
63.6(
e)(
3)."
40
C.
F.
R.
§
63.2250(
c).
Section
63.6(
e)(
3)
of
the
amended
General
Provisions
provides:

The
Administrator
may
at
any
time
request
in
writing
that
owner
or
operator
submit
a
copy
of
any
startup,
shutdown,
and
malfunction
plant
(
or
a
portion
thereof)
which
is
maintained
at
the
affected
source
or
in
the
possession
of
the
owner
or
operator.
Upon
receipt
of
such
a
request
the
owner
or
operator
must
promptly
submit
a
copy
of
the
requested
plan
(
or
portion
thereof
to
the
Administrator.
The
Administrator
must
request
that
the
owner
or
operator
submit
a
particular
startup,
shutdown,
or
malfunction
plan
(
or
a
portion
thereof)
whenever
a
member
of
the
public
submits
a
specific
and
reasonable
request
to
examine
or
to
receive
a
copy
of
that
plan
or
portion
of
that
plan.

40
C.
F.
C.
§
63.6(
e)(
3)(
v)
(
emphasis
added).
Thus,
the
final
PWCP
rule
restricts
public
access
to
SSM
plans
for
PWCP
plants.

The
Clean
Air
Act,
however,
requires
without
exception
that
SSM
plans
be
made
available
to
the
public.
First,
Title
V
of
the
Clean
Air
Act
requires
that
a
copy
of
each
"
compliance
plan"
"
shall
be
available
to
the
public."
42
U.
S.
C.
§
7661b(
e).
Likewise,

EPA's
Title
V
regulations
provide
that
State
permitting
authorities
must
"[
m]
ake
available
to
the
public
any
 
compliance
plan
 
pursuant
to
section
503(
e)
of
the
Act."

40
C.
F.
R.
§
70.4(
b)(
3)(
viii).
As
EPA
has
recognized
expressly,
SSM
plans
fall
within
the
meaning
of
"
compliance
plan":

the
title
V
program
requires
the
permit
writer
to
make
publicly
available
all
parts
of
the
permit,
including
plans,
under
40
CFR
70.4(
b)(
3)(
viii).

66
Fed.
Reg.
16318,
16326
(
March
23,
2001).
Because
SSM
plans
are
"
compliance
plan[
s]"
within
the
meaning
of
§
503(
e),
they
must
be
made
available
to
the
public.
66
Second,
§
114(
c)
of
the
Clean
Air
Act
requires
that
SSM
plans
be
made
available
to
the
public:

Under
CAA
section
114(
c)
and
40
CFR
70.4(
b)(
3)(
viii),
information
in
SSM
plans
must
be
made
available
to
the
public
unless
the
submitter
makes
a
satisfactory
showing
that
disclosure
would
divulge
methods
or
processes
that
are
entitled
to
protection
under
the
Trade
Secrets
Act 

67
Fed.
Reg.
at
72880
(
emphasis
added).
See
also
EPA,
Technical
Document
for
Promulgation
of
Amendments
to
Standards
(
May
8,
2003),
Docket
OAR­
2002­
0038
("
2003
RTC"),
at
8
("
EPA
disagrees
with
the
industry
commenters
who
argued
that
there
is
no
general
obligation
to
provide
public
access
to
SSM
plans,
and
that
only
those
plans
that
the
States
or
EPA
actually
elect
to
obtain
from
the
sources
must
be
made
available
to
the
public.
These
commenters
argued
that
EPA
has
incorrectly
construed
the
SSM
plan
as
an
integral
part
of
the
permit
documentation
that
must
be
made
available
to
the
public
under
sections
114(
c)
and
503(
e).")
(
emphasis
added).

Although
the
Clean
Air
Act
requires
that
SSM
plans
be
made
available
to
the
public,
EPA's
regulations
impose
limits
on
the
public
availability
of
SSM
plans.

Accordingly,
they
are
flatly
unlawful.
Further,
to
the
extent
EPA
has
interpreted
the
Clean
Air
Act
as
allowing
it
to
place
limits
on
the
public
availability
of
SSM
plans,
its
interpretation
is
unlawful
under
Chevron
Step
One.
Because
it
is
well
established
that
EPA
may
not
limit
statutory
mandates,
any
attempt
by
EPA
to
limit
the
Clean
Air
Act's
mandate
that
SSM
plans
be
publicly
available
contravenes
Congress's
plainly
expressed
intent.

Moreover,
any
interpretation
of
the
Act
as
allowing
EPA
to
place
limitations
on
the
public
availability
of
SSM
plans
is
also
unlawful
under
Chevron
Step
Two.
The
notion
that
EPA
has
discretion
to
limit
the
public
availability
of
SSM
plans
is
not
even
67
arguably
consistent
with
the
Act's
requirement
that
such
plans
be
publicly
available.

Further,
EPA
has
never
explained
how
any
such
interpretation
could
be
reconciled
with
the
agency's
admission
that
"
information
in
SSM
plans
must
be
made
available
to
the
public,"
67
Fed.
Reg.
at
72880.
Specifically,
although
EPA
argues
that
it
does
not
wish
to
"
discourage
facilities
from
integrating
SSM
plans
with
other
procedures"
and
that
its
approach
to
SSM
plans
"
strike[
s]
the
right
balance
between
public
disclosure
and
the
need
to
make
SSM
plans
comprehensive
and
effective,"
68
Fed.
Reg.
at
32591,
the
agency
does
not
and
cannot
explain
how
such
policy
argument
can
trump
the
undisputed
statutory
mandate
that
SSM
plans
be
made
available
to
the
public.

b.
The
PWCP
Rule's
Limitations
On
The
Public
Availability
Of
SSM
Plans
Is
Arbitrary
And
Capricious.

As
discussed
above,
before
issuing
its
amended
General
Provisions,
EPA
expressly
agreed
that
SSM
plans
fall
within
the
categories
of
information
that
must
be
made
available
to
the
public
pursuant
to
§
503(
e)
and
§
114(
c)
of
the
Clean
Air
Act.
See
supra
(
citing
67
Fed.
Reg.
at
72880).
In
addition,
EPA
has
found
that
SSM
plans
fall
within
the
meaning
of
"
compliance
plans"
in
§
503(
e)
of
the
Act
and
the
agency's
Title
V
regulations,
40
C.
F.
R.
Part
70.
Discussing
the
obligation
to
make
SSM
plans
publicly
available,
EPA
stated
"
the
title
V
program
requires
the
permit
writer
to
make
publicly
available
all
parts
of
the
permit,
including
plans,
under
40
CFR
70.4(
b)(
3)(
viii)."
66
Fed.

Reg.
at
16326
(
emphasis
added).
Thus,
in
responding
to
comment
on
the
present
rulemaking,
the
agency
made
clear
that
it
disagrees
with
the
industry
commenters
who
argued
that
there
is
no
general
obligation
to
provide
public
access
to
SSM
plans,
and
that
only
those
plans
that
the
States
or
EPA
actually
elect
to
obtain
from
the
sources
must
be
made
available
to
the
public.
These
commenters
argued
that
EPA
has
incorrectly
construed
the
SSM
plan
as
an
integral
part
of
the
permit
68
documentation
that
must
be
made
available
to
the
public
under
sections
114(
c)
and
503(
e).

2003
RTC
at
8
(
emphasis
added).

Therefore,
EPA's
decision
to
limit
public
access
to
SSM
plans
in
the
amended
General
Provisions
 
and
in
the
final
PWCP
rule
 
is
arbitrary
and
capricious
as
well
as
unlawful.
First,
it
is
hopelessly
inconsistent
for
EPA
to
concede
that,
under
the
Clean
Air
Act,
"
information
in
SSM
plans
must
be
made
available
to
the
public,"
67
Fed.
Reg.
at
72880
(
emphasis
added),
but
also
assert
that
it
has
discretion
to
limit
the
public
availability
of
SSM
plans.
EPA's
rationale
 
i.
e.,
that
its
approach
to
SSM
plans
"
strike[
s]
the
right
balance
between
public
disclosure
and
the
need
to
make
SSM
plans
comprehensive
and
effective,"
68
Fed.
Reg.
at
32591
 
is
arbitrary
and
capricious
for
the
same
reason
that
it
is
unreasonable
under
Chevron
analysis.
EPA
does
not,
and
cannot
possibly,
explain
how
it
has
authority
to
"
balance"
a
clear
and
undisputed
statutory
mandate
with
its
own
policy
goals.

Second,
the
premise
upon
which
EPA's
position
rests
 
that
there
is
a
conflict
between
implementing
the
Clean
Air
Act's
undisputed
requirement
that
SSM
plans
be
generally
available
to
the
public
and
providing
for
effective
SSM
plans
 
is
false.
As
EPA
itself
has
made
clear,
compliance
with
an
inadequate
SSM
plan
does
not
excuse
a
facility
from
compliance
with
its
emission
standards.
68
Fed.
Reg.
at
32590.
Because
facilities'
interest
in
avoiding
liability
for
exceeding
their
emission
standards
during
periods
of
SSM
already
creates
an
incentive
to
write
effective
SSM
plans,
EPA
does
not
need
to
sacrifice
the
public
availability
of
SSM
plans
to
create
additional
incentive.

Indeed,
if
EPA's
goal
were
to
create
an
incentive
for
facilities
to
write
effective
SSM
plans,
that
goal
would
be
far
better
served
by
ensuring
that
such
plans
are
publicly
69
available
 
and
thus
allowing
the
public
to
evaluate
their
effectiveness
 
than
by
promulgating
regulations
that
allow
SSM
plans
to
be
shielded
from
public
scrutiny.
In
short,
EPA
has
not
shown
a
rationale
connection
between
its
decision
and
its
stated
goal.

Third,
EPA
has
offered
nothing
but
sheer
speculation
that
the
obligation
to
submit
SSM
plans
to
the
Administrator
might
deter
facilities
from
integrating
SSM
plans
into
their
operating
procedures
or
otherwise
writing
effective
SSM
plans.
Moreover,
as
explained
above,
facilities
must
design
effective
SSM
plans
to
avoid
liability
for
exceeding
their
emission
standards
during
periods
of
SSM.
Thus,
EPA's
rationale
for
not
requiring
SSM
plans
to
be
submitted
to
the
Administrator
is
both
unexplained
and
at
odds
with
the
record.

Fourth,
to
comply
with
the
requirement
that
SSM
plans
be
submitted
to
the
Administrator,
a
facility
need
only
submit
a
copy
of
its
SSM
plan;
it
does
not
have
to
provide
copies
of
other
documents
into
which
the
SSM
plan
has
been
integrated
unless
those
other
documents
must
be
made
available
to
the
public
for
independent
reasons.

Thus,
regardless
of
whether
it
chooses
to
integrate
its
SSM
plan
into
its
process
and
operating
procedures,
a
facility
can
comply
with
the
obligation
to
make
SSM
plans
publicly
available
without
making
publicly
available
otherwise
unavailable
information.

To
do
so,
a
facility
need
only
submit
a
separate
copy
of
the
SSM
plan
that
has
not
been
integrated
with
its
process
and
operating
procedures.

Fifth,
even
assuming
arguendo
that
requiring
SSM
plans
to
be
submitted
to
the
Administrator
might
deter
facilities
from
writing
effective
SSM
plans,
EPA's
regulations
create
the
possibility
that
a
facility's
SSM
plan
might
be
have
to
be
submitted.
That
possibility
would
 
under
EPA's
reasoning
 
deter
facilities
from
writing
effective
70
SSM
plans.
Accordingly,
EPA's
rationale
for
limiting
the
public
availability
of
SSM
plans
is
unexplained,
internally
inconsistent,
and
illogical.

9.
EPA
Must
Reconsider
the
Final
Rule's
Use
of
Title
V
Permits
as
the
Implementation
Mechanism
for
the
So­
Called
Low­
Risk
Exemptions.

The
PCWP
proposal
failed
to
provide
any
notice
of
the
Title
V
implementation
approach
for
the
section
112(
c)(
9)
low­
risk
exemptions
adopted
in
the
final
rule.
98
This
Title
V
implementation
approach
unlawfully,
and
arbitrarily
and
capriciously:
(
1)

attempts
to
create
specific
and
federally
enforceable
legal
requirements,
without
noticeand
comment
rulemaking,
through
an
informal
exemption
"
letter
approval"
process
conducted
between
a
source
and
EPA
behind
the
scenes;
(
2)
imposes
those
legal
requirements
upon
states
and
the
public
by
employing
a
state­
issued
Title
V
permit
to
establish
applicable
requirements;
(
3)
does
so
without
providing
states
or
the
public
with
any
meaningful,
legal
opportunity
to
comment
on
or
challenge
those
requirements;
and
(
4)
does
so
all
in
contravention
of
existing
EPA
legal
interpretations
and
policy
that
prohibit
use
of
Title
V
permits
for
such
purposes.

Scattered
across
the
final
rule's
preamble,
the
Title
V
implementation
approach
for
the
so­
called
low­
risk
exemptions
under
§
112(
c)(
9)(
B)
is
described
thusly:

98
Indeed,
the
proposal's
§
112(
c)(
9)
discussion
did
not
even
mention
Title
V.
See
68
Fed.
Reg.
at
1301­
1302.
And
even
the
§
112(
d)(
4)
discussion
asked
only
the
following,
uninformative
question
that
failed
even
to
provide
adequate
notice
for
§
112(
d)(
4)
purposes,
much
less
§
112(
c)(
9)
purposes:
"
Finally,
EPA
requests
comment
on
how
we
should
implement
the
section
112(
d)(
4)
applicability
cutoffs,
including
appropriate
mechanisms
for
applying
cutoffs
to
individual
facilities.
For
example,
would
the
title
V
permit
process
provide
an
appropriate
mechanism?"
Id.
at
1300
(
emphasis
added).

Consequently,
the
grounds
for
NRDC's
objection
to
the
Title
V
approach
arose
after
the
period
for
public
comment
had
ended.
The
objection
is
thus
appropriately
raised
in
this
petition.
See
42
U.
S.
C.
§
7607(
d)(
7)(
B).
Moreover,
the
objection
is
"
of
central
relevance
to
the
outcome
of
the
rule,"
id.,
because
it
demonstrate
that
the
rule
contravenes
the
Clean
Air
Act
and
is
arbitrary
and
capricious.
71
For
your
affected
source
to
be
part
of
the
delisted
low­
risk
subcategory,
you
must
have
a
low­
risk
demonstration
approved
by
EPA,
and
you
must
then
have
federally
enforceable
conditions
reflecting
the
parameters
used
in
your
EPAapproved
demonstration
incorporated
into
your
title
V
permit
to
ensure
that
your
affected
source
remains
low­
risk.
Low­
risk
demonstrations
for
eight
facilities
were
conducted
by
EPA,
and
no
further
demonstration
is
required
for
them.
They
will,
however,
need
to
obtain
title
V
permit
terms
reflecting
their
status.
(
We
will
provide
these
sources
and
their
title
V
permitting
authorities
with
the
necessary
parameters
for
establishing
corresponding
permit
terms
and
conditions.)

69
Fed.
Reg.
at
45953/
2­
3.

All
approved
low
risk
sources
must
then
obtain
title
V
permit
revisions
including
terms
and
conditions
reflecting
the
parameters
used
in
their
approved
demonstrations,
according
to
the
schedules
in
their
applicable
part
70
or
part
71
title
V
permit
programs.

Id.
at
45955/
2.

You
must
ensure
that
your
affected
source
is
low
risk
by
periodically
certifying
your
affected
source
is
low
risk,
monitoring
applicable
HAP
control
device
parameters,
and
by
maintaining
certain
records.
You
must
certify
with
each
annual
title
V
permit
compliance
certification
that
the
basis
for
your
affected
source's
low­
risk
determination
has
not
changed.
Your
certification
must
consider
process
changes
that
increase
HAP
emissions,
population
shifts,
and
changes
to
dose­
response
values.

Id.

We
will
review
and
approve/
disapprove
low­
risk
subcategory
eligibility
demonstrations
based
on
look­
up
table
analyses
and
low­
risk
demonstrations.
Following
review
of
each
low­
risk
subcategory
eligibility
demonstration
for
a
facility,
we
will
issue
a
letter
of
approval/
disapproval
to
the
facility
and
will
send
a
carbon
copy
to
the
facility's
title
V
permitting
authority
to
be
used
to
develop
source­
specific
permit
terms
and
conditions
that
will
ensure
that
the
source
remains
eligible
for
the
low
risk
subcategory.
The
letter
of
notification
regarding
approval/
disapproval
of
an
affected
source's
low
risk
demonstration
will
also
be
sent
to
any
other
interested
stakeholders.
The
criteria
for
low­
risk
subcategory
delisting
are
clearly
spelled
out
in
today's
final
PCWP
rule,
along
with
criteria
needed
to
ensure
that
affected
sources
in
the
low­
risk
subcategory
remain
low
risk.
Because
these
requirements
are
clearly
spelled
out
in
today's
final
PCWP
rule
and
because
any
standards
or
requirements
created
under
CAA
section
112
are
considered
applicable
requirements
under
40
CFR
part
70,
the
terms
and
conditions
demonstrating
eligibility
for
membership
in
the
delisted
low­
risk
subcategory
would
be
incorporated
into
title
V
permits,
pursuant
to
State's
existing
permitting
programs.
72
69
Fed.
Reg.
at
46003/
2­
3.

Section
112(
c)(
9)(
B)
requires
source
category
deletions
under
§
112(
c)(
9)(
B)(
i),

and
source
category
or
subcategory
deletions
under
§
112(
c)(
9)(
B)(
ii),
to
be
accomplished
by
detailed,
factual
risk­
or
safety­
based
determinations
by
the
Administrator.
These
determinations
cannot
be
knowable
in
advance
and,
with
the
exception
of
eight
sources,
EPA's
final
rule
does
not
purport
to
make
these
determinations
with
respect
to
any
individual
PCWP
source.
The
final
rule
does
not
consider
the
factual
basis,
or
establish
the
legal
terms
and
conditions,
for
exempting
any
given
source
from
the
standard
on
the
basis
of
purported
low
risk.

Against
this
backdrop,
the
preamble
to
the
final
rule
advances
the
arbitrary
claim
that
the
results
of
the
exemption
approval
process
employed
here
are
simply
section
112
applicable
requirements
that
may
be
incorporated
into
Title
V
permits.
See
69
Fed.
Reg.

at
46003/
2­
3.
But
there
are
key
legal
differences
between
usual
MACT
standards,

including
MACT
exemptions
or
negative
applicability
determinations,
and
the
arbitrary
hybrid
approach
created
by
the
final
PCWP
rule.

First,
EPA
does
not
and
cannot
identify
another
instance
in
which
a
statutorilyrequired
"
determination
by
the
Administrator,"
as
under
section
112(
c)(
9)(
B),
achieves
its
culmination
and
embodiment
in
a
Title
V
permit.
EPA
identifies
no
statutory
authority
in
section
112
or
Title
V
indicating
Congressional
intent
to
allow
such
a
result.

Second,
this
result
transgresses
Title
V's
function
to
incorporate
 
"
assure
compliance
with"
 
pre­
existing
federally
enforceable
applicable
requirements
into
operating
permits
issued
by
approved
permitting
authorities,
following
applicability
determinations
by
the
approved
permitting
authority.
The
final
rule's
Rube
Goldberg
73
creation
contravenes
the
structure
and
purpose
of
Title
V
in
several
ways.
Unlike
the
PSD
or
NSR
permitting
programs
in
which
the
rules
contain
criteria
that
are
subsequently
rendered
"
applicable
requirements"
in
federally
enforceable
preconstruction
permits,
99
the
risk
exemption
approval
process
gives
definition
and
content
to
the
qualifying
conditions
in
an
unenforceable,
legally
meaningless
"
letter."
This
letter
is
not
a
legal
permit,
nor
a
contract,
nor
an
"
applicable
requirement"
as
that
term
is
defined
in
parts
70
or
71.100
EPA
identifies
no
previously
approved
example
or
analogy
under
Title
V
similar
to
the
arbitrary
process
employed
here.

EPA
points
to
language
in
the
part
70
regulations
in
an
attempt
to
locate
authority
for
its
unlawful
enterprise
to
establish
applicable
requirements
in
the
first
instance
in
a
Title
V
permit:

For
example,
in
its
provisions
governing
what
types
of
permit
revisions
may
proceed
through
the
abbreviated
``
minor
permit
modification''
process,
our
rules
state
that
such
procedures
may
not
be
used
``
to
establish
or
change
a
permit
term
or
condition
for
which
there
is
no
corresponding
underlying
applicable
requirement
and
that
the
source
has
assumed
to
avoid
an
applicable
requirement
to
which
the
source
would
otherwise
be
subject.''
40
CFR
70.7(
e)(
2)(
i)(
A)(
4);
40
CFR
71.7(
e)(
1)(
i)(
A)(
4).
We
feel
that
permit
terms
reflecting
a
low
risk
PCWP
source's
eligibility
clearly
represent
such
terms,
and
are,
therefore,
allowed
under
title
V.

69
Fed.
Reg.
at
46005/
2.
But
EPA's
reliance
on
this
provision
is
itself
revealing,
since
it
makes
plain
that
there
is
no
direct
authority
under
Title
V
to
establish
applicable
99
See
40
C.
F.
R.
§
70.2
(
defining
"
applicable
requirement"
in
relevant
part
as
"[
a]
ny
term
or
condition
of
any
preconstruction
permits
issued
pursuant
to
regulations
approved
or
promulgated
through
rulemaking
under
title
I,
including
parts
C
or
D,
of
the
Act.")
(
emphasis
added).
100
See,
e.
g.,
id.
(
defining
applicable
requirement
in
relevant
part
as
"[
a]
ny
standard
or
other
requirement
under
section
112
of
the
Act").
Indeed,
the
"
criteria
for
low­
risk
subcategory
delisting
.
.
.
spelled
out
in
[
the]
final
PCWP
rule"
are
more
akin
to
the
criteria
for
BACT
or
LAER
in
the
PSD
and
NSR
permitting
programs,
where
the
actual
"
determinations,"
with
the
actual
legal
conditions
and
requirements
arising
out
of
a
case­
by­
case
review,
are
not
rendered
 
and
do
not
become
enforceable
legal
conditions
 
until
later.
Just
as
the
Title
V
rules
treat
the
terms
and
conditions
of
PSD/
NSR
requirements
as
applicable
requirements
rather
than
the
"
criteria"
in
the
permitting
rules,
the
mere
criteria
in
the
final
PCWP
rule
are
insufficient
to
qualify
as
Title
V
applicable
requirements,
and
insufficient
to
render
EPA's
subsequent
letter
approvals
"
applicable
requirements"
for
Title
V
purposes.
74
requirements
in
Title
V
permits.
101
EPA's
invocation
of
this
provision
simultaneously
indicates
that
the
risk
parameters
will
be
reflected
in
permit
terms
"
for
which
there
is
no
corresponding
underlying
applicable
requirement
and
that
the
source
has
assumed
to
avoid
an
applicable
requirement
to
which
the
source
would
otherwise
be
subject,"
id.,

while
elsewhere
claiming
in
a
directly
contradictory
fashion
that
such
permit
terms
would
be
applicable
requirements.
See
id.
at
46003/
2­
3.
These
internal
contradictions
reveal
the
further
arbitrariness
of
EPA's
approach.

EPA's
protest
that
this
process
simply
amounts
to
the
usual
applicability
determination
under
Title
V
is
simply
wrong.
In
Title
V
programs
administered
by
states,

the
approved
permitting
authority
renders
applicability
determinations
in
their
permits
based
upon
their
application
of
fully
conceived
section
112
MACT
standards.
These
state
determinations
are
subject
to
public
hearing,
public
comment,
public
challenge
in
state
courts,
EPA
objection,
and
eventual
petitions
to
the
Administrator.

Under
the
PCWP's
risk­
based
exemption
scheme,
by
contrast,
it
is
EPA
that
establishes
the
legal
conditions
and
parameters
associated
with
the
risk
determination.

EPA
would
deny
the
public
any
opportunity
to
review
and
comment
upon
these
determinations
before
they
are
a
fait
accompli.
102
EPA
pretends
that
this
situation
is
"
similar
to
facilities
requesting
applicability
determinations
regarding
promulgated
101
At
any
rate,
this
minor
permit
modification
provision's
backhanded
suggestion
that
Title
V
provides
direct
authority
to
"
to
establish
or
change
a
permit
term
or
condition
for
which
there
is
no
corresponding
underlying
applicable
requirement
and
that
the
source
has
assumed
to
avoid
an
applicable
requirement
to
which
the
source
would
otherwise
be
subject"
is
simply
wrong.
EPA
points
to
no
statutory
or
regulatory
authority
for
such
a
proposition.
Moreover,
we
are
unaware
of
EPA
ever
having
suggested
that
this
provision
provides
authority
to
accomplish
indirectly
what
no
provision
 
statutory
or
regulatory
 
authorizes
directly.
To
the
extent
that
EPA
is
offering
such
interpretation
here,
it
will
be
ripe
for
legal
challenge.
102
69
Fed.
Reg.
at
46004/
1
(
"
individual
low­
risk
demonstrations
will
not
be
subject
to
public
review
and
comment.")
75
standards,"
id.
at
46004/
1,
but
that
is
a
view
that
pre­
dates
the
role
of
Title
V
and
in
fact
turns
that
role
on
its
head.

Title
V
permit
programs,
administered
by
approved
permitting
authorities,
serve
the
role
of
subjecting
applicability
determinations
to
opportunities
for
public
comment
and
challenge.
The
PCWP
exemption
approval,
scheme,
however,
reduces
permitting
authorities
to
the
role
of
ministerial
scriveners,
meekly
accepting
"
carbon
copies"
of
approval
letters
from
EPA
for
incorporation
into
state­
issued
permits.
The
state
authorities
do
not
render
these
approvals,
they
have
no
ownership
over
them,
and
they
have
no
reason
to
stand
behind
them.
Indeed,
they
could
strongly
disagree
with
them,

without
any
legal
recourse
to
challenge
them.

In
light
of
this,
it
is
farcical
that
EPA
points
to
the
public
participation
opportunities
accompanying
Title
V
permits
as
the
public's
opportunity
to
review
the
determinations
and
parameters
allowing
individual
sources
to
qualify
for
the
low­
risk
subcategory.
103
Is
it
EPA's
position
that
states
will
have
the
prerogative
and
legal
authority
to
reject
these
determinations,
strip
these
permit
conditions
and
subject
the
sources
to
the
MACT
standard?
Is
EPA
saying
that
state
courts
will
have
the
opportunity
and
authority
to
reject
these
determinations?
Will
EPA
Regional
officials
be
empowered
to
object
to
state­
issued
Title
V
permits
on
the
basis
of
low­
risk
determinations
rendered
by
EPA
headquarters?
If
the
answer
to
any
of
these
questions
is
No,
as
we
suspect
from
the
structure
and
tone
of
the
Title
V
description
in
the
final
preamble,
then
the
public
does
not
in
fact
have
the
public
comment,
challenge
and
petition
opportunities
afforded
103
Id.
("
However,
the
parameters
that
rendered
an
a
affected
source
part
of
the
low­
risk
subcategory
will
be
incorporated
into
a
title
V
permit
and
subject
to
the
public
review
process
through
title
V.")
76
under
Title
V
for
ordinary
state
applicability
determinations.
The
agency's
Rube
Goldberg
creation
simply
does
not
hold
up
to
scrutiny.

The
final
preamble
implicitly
recognizes
this,
and
offers
a
series
of
absurd,

unavailing
excuses
for
the
assaults
on
public
participation
opportunities
carried
out
by
the
exemption's
implementation
scheme.
The
preamble
says:

Furthermore,
the
PCWP
proposal
provided
the
public
with
the
opportunity
to
comment
on
the
consideration
of
risk
in
the
final
PCWP
rule.
Regarding
the
assurance
of
adequate
public
participation
in
the
process
of
reviewing
the
risk
analyses,
the
risk­
based
compliance
options
are
part
of
a
rule
that
was
subject
to
public
comment.
The
supporting
information
to
the
final
rule
details
the
assessment
we
conducted
to
determine
the
feasibility
of
delisting
a
low­
risk
subcategory
and
the
look­
up
tables
we
developed
to
be
used
by
affected
sources
in
their
demonstrations,
thereby
providing
a
public
demonstration
of
the
method
employed
to
ensure
protection
of
the
public
health
and
environment
in
decisions
associated
with
the
final
rule.

Id.
at
46003/
3.
Each
of
these
excuses
is
more
preposterous
than
the
last.

As
discussed
above,
the
PCWP
proposal
was
thoroughly
inadequate
in
providing
the
public
"
with
the
opportunity
to
comment
on
the
consideration
of
risk
in
the
final
PCWP
rule,"
a
fact
emphasized
by
EPA
attorneys
and
professional
staff
in
briefings
for
management.
See
supra
at
___.
Incredibly,
the
agency
cites
this
same
public
comment
opportunity
on
the
rulemaking
as
the
"
assurance
of
adequate
public
participation
in
the
process
of
reviewing
the
risk
analyses"
 
when
the
agency's
risk
assessment
methodology
was
not
even
made
public
until
the
final
rule,
and
the
individualized
risk
analyses
still
have
not
occurred
and
will
not
for
several
years!
Finally,
the
kicker
 
the
text
quoted
above
discusses
the
assessment
and
look­
up
tables
appearing
in
the
final
rule
and
proclaims
that
this
provides
a
"
public
demonstration
of
the
method
employed
to
ensure
protection
of
the
public
health
and
environment
in
decisions
associated
with
the
final
rule."
Id.
The
preamble
evinces
no
apparent
awareness
of
irony
in
this
assertion
77
and
the
fact
that
it
is
made
in
the
context
of
a
discussion
about
opportunities
for
public
comment
on
the
risk
determinations.
Allowing
the
public
after
the
fact
to
see
the
already­
accomplished
"
demonstration"
made
by
EPA
hardly
amounts
to
an
opportunity
for
the
public
to
comment
on
methods
purportedly
employed
to
ensure
protection
of
public
health
and
the
environment.

The
final
rule's
implementation
approach
and
the
justifications
offered
to
support
it
are
unlawful,
arbitrary
and
capricious,
and
otherwise
an
abuse
of
the
agency's
discretion.

Finally,
we
note
that
governing
EPA
statutory
and
regulatory
interpretations
prohibit
the
Title
V
implementation
approach
employed
in
the
final
rule.
In
a
May
20,

1999
letter
from
John
Seitz,
EPA
OAQPS,
to
Robert
Hodanbosi
&
Charles
Lagges,

STAPPA/
ALAPCO,
EPA
explains
why
Title
V
permits
may
not
be
the
exclusive
legal
mechanism
for
establishing
and
enforcing
"
applicable
requirements":

As
noted
in
the
previous
section,
title
V
permits
must
assure
compliance
with
terms
and
conditions
in
SIP­
approved
permits.
In
enacting
title
V,
Congress
did
not
amend
title
I
of
the
Act
and
did
not
intend
the
title
V
permitting
program
to
replace
the
title
I
permitting
programs.
SIP­
approved
permits
must
remain
in
effect
because
they
are
the
legal
mechanism
through
which
underlying
NSR
requirements
(
from
the
Act,
federal
regulations
and
federally­
approved
SIP
regulations)
become
applicable,
and
remain
applicable,
to
individual
sources.
NSR
programs
provide
the
relevant
permitting
entity
with
the
authority
to
impose
source­
specific
NSR
terms
and
conditions
in
legally
enforceable
permits,
and
provide
States,
EPA
and
citizens
with
the
authority
to
enforce
these
permits.
Because
State
title
V
programs
do
not
provide
the
authority
for
the
establishment
and
maintenance
of
SIP­
approved
permit
requirements,
the
title
V
permit
cannot
"
assure
compliance"
with
those
requirements
unless
the
underlying
implementation
and
enforcement
mechanism
for
the
NSR
requirements­­
the
SIPapproved
permit­­
remains
valid.

The
supersession
of
SIP­
approved
permits
poses
additional
problems
that
EPA
believes
are
inconsistent
with
the
structure
and
purposes
of
title
V
and
title
I
of
the
Act.
First,
while
SIP­
approved
permits
impose
continual
operational
requirements
and
restrictions
upon
a
source's
air
pollution
activities
and,
accordingly,
may
not
expire
so
long
as
the
source
operates,
title
V
permits
78
could
expire
or
become
unnecessary.
If
the
title
V
permit
supersedes
the
source's
SIP­
approved
permit
and
then
subsequently
expires,
neither
the
superseded
SIPapproved
permit
nor
the
expired
title
V
permit
would
provide
the
legal
authority
to
enforce
the
site­
specific
operational
requirements
and
restrictions
imposed
upon
the
source
pursuant
to
preconstruction
review.
Even
if
title
V
permits
expire,
of
course,
sources
are
still
required
to
comply
with
applicable
requirements
that
remain
independently
enforceable
outside
of
title
V
permits,
as
all
applicable
requirements
must.

Moreover,
the
continuing
existence
of
SIP­
approved
permits
independent
of
title
V
preserves
the
ability
of
permitting
authorities
and
EPA
to
reopen
title
V
permits
that
failed
to
include
all
SIP­
approved
permit
terms,
or
to
make
such
corrections
upon
permit
renewal.
Finally,
title
V
regulations
allow
a
permitting
authority
to
include
in
the
title
V
permit
a
"
permit
shield"
stating
that
"
compliance
with
the
conditions
of
the
[
title
V]
permit
shall
be
deemed
compliance
with
any
applicable
requirements
as
of
the
date
of
permit
issuance"
[
40
CFR
§
§
70.6(
f)
&
71.6(
f)].
The
fact
that
compliance
with
the
title
V
permit
may
be
"
deemed
compliance"
with
underlying
applicable
requirements,
including
applicable
requirements
contained
in
SIP­
approved
permits,
indicates
that
those
underlying
requirements
must
remain
in
force
and
may
not
be
superseded.
If
those
requirements
could
be
superseded
by
the
title
V
permit,
there
would
be
no
need
for
a
mechanism
in
the
title
V
permit
clarifying
the
source's
obligations
and
compliance
status.

May
20,
1999
Letter
from
John
Seitz,
EPA
OAQPS,
to
Robert
Hodanbosi
&
Charles
Lagges,
STAPPA/
ALAPCO,
Enclosure
A,
at
4­
5.

The
reasons
offered
in
this
letter
for
not
allowing
SIP­
approved
permit
terms
to
exist
exclusively
in
Title
V
permits
apply
equally
to
the
detailed
and
source­
specific
risk
determinations,
parameters
and
conditions
that
would
exist
exclusively
in
individual
Title
V
permits.
For
example,
if
a
PCWP's
Title
V
permit
expired,
for
whatever
reason,
the
legal
parameters
and
conditions
of
the
risk
exemption
would
no
longer
exist
as
a
legal
matter.
The
other
reasoning
behind
the
agency's
prohibition
on
supersession
in
Title
V
permitting
applies
equally
to
prohibiting
the
agency
from
legally
establishing
the
PCWP
rule's
risk­
based
exemption
conditions
exclusively
through
Title
permits.
