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National Emission Standards for Hazardous Air Pollutants: Flexible Polyurethane Foam Fabrication Operations Residual Risk and Technology Review and Flexible Polyurethane Foam Production and Fabrication Area Source Technology Review
                                       
                       (86 FR 1868, January 11, 2021)
                                       
                                       
                                       





                     U.S. Environmental Protection Agency
                 Office of Air Quality Planning and Standards
                     Sector Policies and Programs Division
                       Research Triangle Park, NC 27711
                                       















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                          ACRONYMS AND ABBREVIATIONS



                                   Acronym/
                                 Abbreviation

                                  Definition
   1-BP
1-bromopropane
   Act or CAA
Clean Air Act
   APA
Administrative Procedure Act
   CEDRI
Compliance and Emissions Data Reporting Interface
   CFR
Code of Federal Regulations
   EPA
U.S. Environmental Protection Agency
   FR
Federal Register
   FPF
Flexible Polyurethane Foam
   HAP
Hazardous Air Pollutants
   HCl
Hydrochloric Acid
   NEI
National Emissions Inventory
   NESHAP
National Emission Standards for Hazardous Air Pollutants
   SSM
Startup, Shutdown, and Malfunction
   TTN
Technology Transfer Network 





















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1.0	Introduction

      On January 11, 2021 (86 FR 1868), the U.S. Environmental Protection Agency (EPA) proposed to revise the National Emission Standards for Hazardous Air Pollutants (NESHAP) for Flexible Polyurethane Foam Fabrication Operations major sources (40 CFR 63 Subpart MMMMM) and the NESHAP for Flexible Polyurethane Foam Production and Fabrication area sources (40 CFR 63 Subpart OOOOOO) under the authority of section 112 of the Clean Air Act (CAA). This document presents summaries of the comments that were submitted in response to this action and our responses to those comments for all comments not discussed in the preamble to the final rule. Within each comment summary, the EPA provides one or more Docket ID numbers for commenters who raised particular issues. However, the list of commenter ID numbers is not meant to be exhaustive. The EPA does not individually identify each and every commenter who made a certain point in all instances, particularly in cases where multiple commenters express essentially identical arguments. Although portions of the preamble to the final rule are paraphrased in this document, to the extent any ambiguity is introduced by paraphrasing, the preamble itself remains the definitive statement of the rationale for the final rule.
      Four comment documents were received from industry representatives, environmental advocacy groups and individual persons during the public comment period. A list of the commenters, their affiliations, and the EPA docket number assigned to their correspondence is presented in Table 1-1. The EPA Docket contains all comment documents submitted, and the comments are available for viewing at the EPA Docket Center Reading Room, or electronically through http://www.regulations.gov by searching Docket ID No. EPA-HQ-OAR-2020-0572 by docket number.
      
TABLE 1-1. LIST OF COMMENTERS ON PROPOSED NATIONAL EMISSION STANDARDS FOR HAZARDOUS AIR POLLUTANTS

                              Document ID[a][,b]
Commenter
Affiliation
                                      37 
Matt Simmers
None stated
                                      39
Russ Batson
Polyurethane Foam Association
                                      40
Jeannie Nguyen
None stated
                                      41
(not provided)
Sierra Club and Earthjustice
a Document ID identifies comments found in Docket No. EPA-HQ-OAR-2020-0572 by document number.
[b] Individual comments from the public (and attachments submitted with comments) submitted to the docket are assigned a unique 4-digit docket number that follows the base docket number (i.e., EPA-HQ-OAR-2020-0572-XXXX, where "XXXX" represents the unique 4-digit document docket number). The unique document docket numbers presented in this table and document represent that unique docket number without the preceding 0s. For example, docket number EPA-HQ-OAR-2020-0572-0041 is presented as 41 in this table and within the text of this document. 
 
      The following section of this document contains a summary of comments received on the proposed standards for the Flexible Polyurethane Foam (FPF) source categories, for all comments not discussed in the preamble to the final rule, as well as the EPA's responses to these comments.

2.0	Comments and Responses

Comment: Commenters 37 and 40 support the proposal and its effect in limiting backsliding. The commenters note that while the proposed requirements will not further reduce air pollution, they will limit backsliding through the monitoring requirements. Commenter 37 remarks that many pollutant regulations seem to fall behind in the implementation and monitoring of the standards, and the commenter added that by ensuring this hazardous pollutant is properly monitored, significant future harm may be prevented, or at least limited in its effect. Commenter 41 states that industries need to be monitored and kept in check, noting that it is difficult to hold large corporations accountable, so it is important to ensure restrictions on them are not loosened. 

      Response: We appreciate the support for the proposal and agree that the proposed requirements for adhesive HAP content will ensure that the emission levels currently achieved in practice will be retained and will prevent an increase in emissions (i.e., backsliding) from adhesive use in the future. 

Comment: Commenter 39 expresses that the residual risk review and technology review for these FPF NESHAPs are reasonable and supported by the available data. This commenter also states that they do not object to the five proposed rule amendments to the current NESHAPs for the FPF industry. The commenter observes that the proposal to establish a numeric limit for existing flame lamination operations emissions is consistent with the existing emissions test data for the industry. The commenter also notes that the proposed lowering of the HAP weight of an adhesive from 5% to 1% of the total weight for adhesives used in loop-slitting operations should not have an adverse impact on loop-slitting and is supported by the industry. The commenter also notes that methylene chloride is no longer used as a component of adhesive formulations and that most adhesives are now water-based. The commenter recognizes that the proposed removal of the exemption for periods of startup, shutdown and malfunction (SSM) are consistent with court decisions requiring that CAA standards apply at all times, and accordingly the commenter supports the elimination of the requirement that each source develop an SSM plan, as well as the reporting requirements related to the SSM exemption. The commenter supports the requirement that FPF fabrication facilities submit electronic copies of required performance tests reports, performance evaluation reports and periodic reports to EPA and also reported that the content, layout and overall design of the proposed reporting template is satisfactory to them. The commenter expresses support for the proposed circumstances in which electronic reporting extensions may be provided and also considers the proposed compliance date to be reasonable. 

Commenter 41 expressed support for four of the proposed rule changes. These include: (1) removing the exemption for excess emissions during SSM, (2) establishing emission standards for hydrochloric acid (HCl) emissions from existing flame laminators, (3) requiring electronic reporting, and (4) revising the definition of HAP-based adhesive to be 1% or more by weight of total HAP.

      Response: We appreciate the support for the proposal. We have retained these aspects of the proposal in the final rule. 

Comment: Commenter 41 believes the proposal fails to satisfy the CAA's public participation requirements. The commenter indicates that the CAA provides a more protective process for certain air regulations, including detailed public notice and comment requirements, which build on and incorporate the Administrative Procedure Act (APA). Further, the commenter adds that the CAA requires the EPA to publish a notice of proposed rulemaking, that "shall be accompanied by a statement of its basis and purpose" and include "a summary of . . . the major legal interpretations and policy considerations underlying the proposed rule." The commenter states that the EPA did not publish the actual proposed rule or proposed regulatory language at all, or some of the explanation for such changes. Instead, the commenter states that the EPA placed the regulatory language and explanations of it in a separate document in the docket, the commenter indicates. The commenter asserts that the EPA has violated public notice and comment requirements of the CAA and APA by failing to publish notice in the Federal Register of the proposed rule itself.

Commenter 41 adds that the EPA's failure is prejudicial to the ability of the public to be able to find and comment on the proposed regulatory changes because they are not part of the notice in the Federal Register. Even though that notice is labeled "notice of proposed rulemaking," it contains no proposed regulatory language, the commenter notes. This is extremely unusual as it is the EPA's regular practice to include this language at the end of the notice, before the Administrator's signature, the commenter adds.

Commenter 41 further claims that the CAA, relying on the APA, does not allow an agency to hide the core regulatory language in this way. The commenter indicates that the proposed and final regulatory language must be published in the Federal Register to satisfy the core public notice requirements and allow for meaningful comment. The commenter asserts that the EPA has also failed to ensure that there is a permanent, public record documenting the proposed and final changes to the Code of Federal Regulations (CFR), because only the Federal Register notices are also published in legal databases like Westlaw.

Therefore, in the commenter's opinion, for any changes the EPA seeks to finalize, the EPA should publish the proposed language and necessary basis for public comment in the Federal Register, to remove the prejudicial effect on the public's ability to comment, before it finalizes the rule. The commenter states that failing to do so will violate core procedural requirements of the CAA that are also essential to protect the Biden-Harris Administration's commitment to good government and transparency, and especially to the public's right to know about and have a meaningful opportunity to participate in the EPA's rulemaking process.

      Response: The proposal met all APA and CAA notice-and-comment requirements. Nothing in the APA or the CAA, including the language the commenter cites, requires EPA to publish proposed rule text in the Federal Register. The commenter suggests that because the EPA did not publish the proposed rule text, the EPA failed to meet the CAA 307(d)(3) requirement to publish a "notice of proposed rulemaking." However, the requirement to publish a "notice of proposed rulemaking" is not a requirement to publish "proposed rule text." Section 307(d)(3) specifies the required elements of a "notice of proposed rulemaking," and "proposed rule text" is not a required element. The elements the commenter cites that are required to be included in the notice of proposed rulemaking (a "statement of basis and purpose," "a summary of . . . the major legal interpretations and policy considerations underlying the proposed rule, etc.") were included and the commenter does not suggest otherwise.

      The APA does not require publication of proposed rule text in the Federal Register either. Section 553(b)(3) of the APA provides that a notice of proposed rulemaking shall include "either the terms or substance of the proposed rule or a description of the subjects and issues involved" (emphases added). Thus, the APA clearly provides flexibility to describe the "subjects and issues involved" as an alternative to inclusion of the "terms or substance" of the proposed rule. See also Rybachek v. U.S. E.P.A., 904 F.2d 1276, 1287 (9th Cir. 1990) (EPA's failure to propose in advance the actual wording of a regulation does not make the regulation invalid where EPA's discussion of the regulatory provisions "clearly describe `the subjects and issues involved.'").
      
      The commenter claims that the EPA did not publish "some of the explanation" for the proposed amendatory regulatory text. However, the commenter does not identify any specific regulatory text that was not explained or specify any deficiency in any explanation of regulatory text in the Federal Register notice. Such a generalized objection is not sufficiently specific. See, e.g., Appalachian Power Co. v. E.P.A., 251 F.3d 1026, 1036 (D.C. Cir. 2001) ("`An objection must be made with sufficient specificity reasonably to alert the agency.'" (quoting Tex Tin Corp. v. EPA, 935 F.2d 1321, 1323 (D.C. Cir. 1991)).
      
      The commenter makes a vague assertion that the EPA's approach was prejudicial to the ability of the public to be able to find and comment on the proposed regulatory changes, but the commenter does not claim any actual difficulty in finding or commenting on the proposed rule language. The EPA approach was not prejudicial to the commenter or any member of the public. The notice of proposed rulemaking clearly explained that the proposed amendatory language and a redline strikeout version of subpart MMMMM showing proposed changes were available in the docket and on EPA's website:
      
            The proposed changes to the CFR that would be necessary to incorporate the changes proposed in this action are set out in an attachment to the memorandum titled Proposed Regulation Edits for 40 CFR Part 63, subparts MMMMM and OOOOOO, available in the docket for this action (Docket ID No. EPA-HQ-OAR-2020-0572). This document includes the specific proposed amendatory language for revising the CFR and, for the convenience of interested parties, a redline version of the regulations. Following signature by the EPA Administrator, the EPA will also post a copy of this memorandum and the attachment to https://www.epa.gov/stationary-sources-air-pollution/flexiblepolyurethane-foam-fabricationoperations-national-emission. 
            
      National Emission Standards for Hazardous Air Pollutants: Flexible Polyurethane Foam Fabrication Operations Residual Risk and Technology Review and Flexible Polyurethane Foam Production and Fabrication Area Source Technology Review, 86 FR 1868 (Jan. 11, 2021).
      
      Although the EPA's recent practice has generally been to publish proposed amendatory regulatory text, the EPA's practice has varied. See, e.g., Hazardous Air Pollutants: Proposed Regulations Governing Constructed, Reconstructed or Modified Major Sources, 59 FR 15504 (April 1, 1994) ("The proposed regulatory text is not included in the Federal Register notice, but is available in Docket No. A-91-64 or by request from the EPA contact persons designated earlier in this note. The proposed regulatory language is also available on the Technology Transfer Network (TTN), of EPA's electronic bulletin boards."); Federal Standards for Marine Tank Vessel Loading and Unloading Operations and National Emission Standards for Hazardous Air Pollutants for Marine Tank Vessel Loading and Unloading Operations, 59 FR 25004 (May 13, 1994) ("The proposed regulatory text and other materials related to this rulemaking are available for review in the docket."). Even when we do include the proposed text in the Federal Register, we often include a redline version of proposed regulations in the docket for rulemakings to assist the public in understanding the proposed regulatory changes. In our experience, stakeholders find the redline version far more useful than the proposed amendatory language in the format required by the Office of the Federal Register. Although appropriate for the task of revising the CFR, this language can be difficult to assess without the accompanying full regulatory text. Given this, and given that we rarely receive comments on the proposed amendatory language or on proposed regulatory language at all, we determined that for rulemakings such as these, it would be more efficient to take the approach here of making both easily accessible but not including the proposed amendatory text in the notice.

Comment: Commenter 41 is opposed to the proposed compliance reporting requirements that allow for compliance extensions when due to web outages or other force majeure events. The commenter states that the EPA is creating an unlawful exemption, labeled as an extension for compliance reporting, which would allow unreported exceedances to go unchecked, indefinitely. The commenter declares that the EPA should ensure that if there is a need for a reporting extension, the EPA would require the report by a prompt new enforceable deadline.

      Response: The commenter asserts that the brief, case-by-case extension of report submittal deadlines is an unlawful exemption [from compliance with] the emissions standards. This is not the case. The proposed provisions do not include an exception or exemption to reporting, much less an exemption from compliance with the numerical emission standards, but only a method for requesting an extension of the reporting deadline. Reporters are required to justify their request and identify a reporting date. There is no predetermined timeframe for the length of extension that can be granted, as this is something best determined by the Administrator (i.e., the EPA Administrator or delegated authority as defined in 40 CFR 63.2) when reviewing the circumstances surrounding the request. Different circumstances may require a different length of extension for electronic reporting. For example, a tropical storm may delay electronic reporting for a day, but a Hurricane Katrina-scale event may delay electronic reporting much longer, especially if the facility has no power and, as such, the owner or operator has no ability to access electronically stored data or to submit reports electronically. The Administrator will be the most knowledgeable about the events leading to the request for extension and will assess whether an extension is appropriate and, if so, a reasonable length for the extension. The Administrator may even request that the report be sent in hardcopy until electronic reporting can be resumed. While no new fixed-duration deadline is set, the regulation requires that the report be submitted electronically as soon as possible after the Compliance and Emissions Data Reporting Interface (CEDRI) outage or after the force majeure event resolves. 
      
      The concept of force majeure has been implemented by the EPA in this context since May 2007 within the CAA requirements through the performance test extensions provided in 40 CFR 63.7(a)(4) and 60.8(a)(1). Like the performance test extensions, the approval of a requested extension of an electronic reporting deadline is at the discretion of the Administrator.
      
Comment: Commenter 41 states that the EPA has inadequate emissions data for the FPF manufacturing source category and is concerned that the risk assessment may not include all emissions and health risks. The commenter states that the EPA believes the only HAP emitted from the source category is HCl, but that the Agency has not demonstrated there are no emissions of other pollutants, such as other HAP or 1-bromopropane (1-BP), that may be in flame retardants. The commenter asserts that the EPA must evaluate the current use of HAP-containing flame retardants in foam and revise the emission standards to require phase-out of those flame retardants.

      Response: Under the CAA (42 U.S.C. § 7412(f)(2)), the EPA has a legal obligation to conduct the risk and technology review using the best available data and tools. We have done that here using the best available emissions information, including the National Emissions Inventory (NEI), the Toxics Release Inventory (TRI), and emissions test data provided by the manufacturers. No HAP other than HCl was reported from foam fabrication operations in any of these data sources. The EPA has no information, nor was any provided during the public comment period, from which to conclude that any HAP emissions are missing from the data or analyses previously performed. Therefore, we continue to rely on these data and analyses for the final rule.
