Comment: The burden of proving all the requirements in the affirmative defense and notifying the Agency during a malfunction is excessively high; if the EPA intends to maintain an affirmative defense provision, however, the Agency should clarify the language in this provision and make it reasonably possible to meet these criteria. The affirmative defense provisions from the reconsideration require the owner or operator of a boiler to prove by a preponderance of the evidence that the source meets a list of criteria. As the list is currently written, affected entities will struggle to meet many of the criteria in the affirmative defense, effectively limiting or eliminating any practical use of this defense. For example, the fifth criterion requires a facility to demonstrate that "[a]ll possible steps were taken to minimize the impact of the excess emissions on ambient air quality, the environment and human health." (76 FR 80629.) This is a standardless condition and it would be extremely difficult, if not impossible, to demonstrate that all possible steps were taken to minimize the impact of a malfunction episode. A facility could always take one additional step to minimize the impact of a malfunction, and therefore, no facility could ever meet this criterion. If the EPA does intend to finalize the affirmative defense, the Agency should clarify these provisions to ensure that the requirements are realistically attainable.
Response: The EPA disagrees with comments that criticize the affirmative defense criteria as being overly vague or unduly restrictive and complex. The EPA believes that courts are well equipped and often do evaluate and apply the type of criteria set forth in the affirmative defense. The EPA recognizes that some of the criteria for establishing an affirmative defense may be redundant of the general duty, but does not agree that such redundancy is a problem. The EPA notes that the affirmative defense criteria and the general duty to minimize emissions do not operate in the same manner. The general duty is applicable to a source at all times. The affirmative defense criteria are only relevant if a source chooses to take advantage of the affirmative defense. The EPA's view is that use of consistent terms in establishing affirmative defense regulations and policies across various CAA programs will promote consistent implementation of those rules and policies.
Commenter Name: Matthew Todd
Commenter Affiliation: American Fuel & Petrochemical Manufacturers (AFPM) and the American Petroleum Institute (API)
Document Control Number: EPA-HQ-OAR-2006-0790-2482-A2
Comment Excerpt Number: 32
Comment: Section 63.7501(a)(1)(ii) and (iii) [and corresponding area rule language] are vague, subjective and potentially impossible criteria to meet. Once an event occurs, you may learn enough to realize that you "could" have prevented it. In fact, that is the very basis for the later requirement to do a root cause analysis (RCA)  -  so a facility can identify the root cause and plan to prevent such events. Even being hit by a meteor would fail this test, since one theoretically could have planned for it, even if the chance of such an occurrence is infinitesimal. In short, these demonstration requirements are so vague and subjective as to make the affirmative defense potentially unavailable and applicable only at the whim of the interpreting regulator.
Section 63.7501(a)(1)(iv) [and corresponding area rule language] requires a demonstration that a malfunction is not a result of a recurring pattern indicative of "inadequate design, operation, or maintenance." This is another impossible to demonstrate criterion since a regulator could easily take the position that if an event recurs it has to have been due to some inadequate design, operation, or maintenance. That is certainly the assumption behind the requirement for an RCA analysis.
Response: See the response to EPA-HQ-OAR-2006-0790-2437-A1, excerpt 18.
Commenter Name: Matthew Todd
Commenter Affiliation: American Fuel & Petrochemical Manufacturers (AFPM) and the American Petroleum Institute (API)
Document Control Number: EPA-HQ-OAR-2006-0790-2482-A2
Comment Excerpt Number: 33
Comment: Proposed §63.7501(a)(2) [and corresponding area rule language]:
      Repairs were made as expeditiously as possible when the applicable emission limitations were being exceeded. Off-shift and overtime labor were used, to the extent practicable to make these repairs; and
Proposed §63.7501(a)(2) imposes an unreasonable requirement and focuses on the wrong endpoint and should be deleted. The phrase "as expeditiously as possible" is ambiguous and potentially impossible to meet. "Possible" is yet another subjective and ill-defined concept. In addition, acting as "expeditiously as possible" may cause safety or other problems as opposed to minimizing emissions to the maximum extent practicable, as the (a)(3) paragraph requires.
Response: See the responses to EPA-HQ-OAR-2006-0790-2437-A1, excerpt 18.
Commenter Name: Matthew Todd
Commenter Affiliation: American Fuel & Petrochemical Manufacturers (AFPM) and the American Petroleum Institute (API)
Document Control Number: EPA-HQ-OAR-2006-0790-2482-A2
Comment Excerpt Number: 34
Comment: Requiring the "repairs" to be done rapidly is not the correct focus because excess emissions may have ceased before repairs are complete or repairs may not be required. The correct focus should be on reducing the excess emissions as rapidly as practical, which is addressed in the proposed (a)(3) paragraph. Eliminating excess emissions may or may not involve repairs. For instance, the proper response to a particular event may require adjusting a control set point, bypassing a stuck control valve or other operator actions, shutting down the equipment or process, or routing the emissions to an alternate control. Requiring repairs, when no repair is needed is unreasonable and illogical.
Response: See the response to EPA-HQ-OAR-2006-0790-2437-A1, excerpt 18.
Commenter Name: Matthew Todd
Commenter Affiliation: American Fuel & Petrochemical Manufacturers (AFPM) and the American Petroleum Institute (API)
Document Control Number: EPA-HQ-OAR-2006-0790-2482-A2
Comment Excerpt Number: 36
Comment: Section 63.7501(a)(2) (and corresponding area rule language) should not be finalized and proposed §63.7501(a)(3) (and corresponding area rule language) should remain as the basis for demonstrating an appropriate response to a malfunction, if these provisions remain in the final rule.
Response: See the response to EPA-HQ-OAR-2006-0790-2437-A1, excerpt 18.
Commenter Name: Matthew Todd
Commenter Affiliation: American Fuel & Petrochemical Manufacturers (AFPM) and the American Petroleum Institute (API)
Document Control Number: EPA-HQ-OAR-2006-0790-2482-A2
Comment Excerpt Number: 39
Comment: Proposed §63.7501(a)(5) [and corresponding area rule language]:
      All possible steps were taken to minimize the impact of the excess emissions on ambient air quality, the environment and human health; and
Proposed §63.7501(a)(5) [and corresponding area rule language] sets an impossible requirement that invalidates the possibility of using the affirmative defense and so should be deleted.
This provision is ambiguous at best and impossible to demonstrate at worst. A facility cannot necessarily know in real time what "impacts" or potential impacts emissions might have on air quality, the environment, and human health, nor can a facility do anything other than minimize emissions to minimize the potential environmental impact. In addition, it is impossible to demonstrate that "all possible steps" were taken to do anything. Paragraph (a)(3) already requires a source to minimize the excess emissions. We do not know what other steps the Agency expects or how we could demonstrate that the impacts of those already minimized emissions could be further minimized. This paragraph should be deleted.
Response: See the response to EPA-HQ-OAR-2006-0790-2437-A1, excerpt 18.
Commenter Name: Lorraine Gershman
Commenter Affiliation: American Chemistry Council (ACC)
Document Control Number: EPA-HQ-OAR-2006-0790-2444-A1
Comment Excerpt Number: 24
Comment: A number of the requirements are extremely subjective and fail to allow for consideration of reasonableness or cost-effectiveness. For example, §63,11226(a)(1)(ii) requires the owner/operator to show that the malfunction could not have been prevented through "careful planning", "proper design" or "better operation and maintenance practices". This subjective requirement leaves open the possibility that an enforcement official could always find actions that "could" have been taken without any consideration of costs, resources or feasibility. Moreover, it fails to consider that an owner/operator may have chosen to redesign a process or equipment configuration, or make other adjustments to achieve the emission reductions necessary to comply with the standard. In so doing, the owner/operator would have evaluated various options to determine which one was the most cost-effective approach to achieve the emission standard, keeping in mind that cost-effectiveness would include long-term safe and proper operation of the equipment or process. If a malfunction were to occur, it could be difficult if not impossible for the owner/operator to prove that the malfunction "could not have been prevented" if cost and resources were never an issue.
Response: See the response to EPA-HQ-OAR-2006-0790-2437-A1, excerpt 18.
Commenter Name: Lorraine Gershman
Commenter Affiliation: American Chemistry Council (ACC)
Document Control Number: EPA-HQ-OAR-2006-0790-2444-A1
Comment Excerpt Number: 27
Comment: Requirement §63.11226 (a)(5) demands a party to prove that: "All possible steps were taken to minimize the impact of the excess emissions on ambient air quality, the environment and human health." Again, the subjectivity of "all possible steps" is problematic in that it establishes a potentially unattainable standard with no clear direction as to how a party is to meet it.
Response: See the response to EPA-HQ-OAR-2006-0790-2437-A1, excerpt 18.
Commenter Name: Lorraine Gershman
Commenter Affiliation: American Chemistry Council (ACC)
Document Control Number: EPA-HQ-OAR-2006-0790-2444-A1
Comment Excerpt Number: 15
Comment: The EPA's approach to malfunctions is not required by Sierra Club v. EPA and is contrary to the requirements of §112 of the CAA.
The EPA states that, "consistent with" the holding in Sierra Club v. EPA, 551 F. 3d 1019 (D.C. Cir. 2008), cert. denied, 130 S. Ct. 1735 (2010) ("Sierra Club"), it has established emission standards that apply at all times, even during a period of malfunction. ACC believes that there are a number of flaws in this statement and in the EPA's approach to malfunctions experienced by area sources rendering it contrary to the requirements of §112 of the CAA. More specifically:
 EPA misinterprets the holding of Sierra Club;
 EPA failed to consider malfunctions in establishing MACT numeric emission standards for Hg and CO;
 EPA failed to present any rationale or justification for its decision to apply the same numeric emission standard established for normal operations during an abnormal event, i.e., a malfunction;
 EPA's inclusion of an affirmative defense is not a substitute for establishing a §112- compliant standard for malfunction events; and
 EPA's affirmative defense requirements are potentially unconstitutional, but certainly unreasonable and not consistent with §112.
Response: See the response to EPA-HQ-OAR-2006-0790-2426-A1, excerpt 21, regarding establishing work practice standards for malfunctions. Also, see response to EPA-HQ-OAR-2006-0790-2437-A1, excerpt 18.
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Commenter Name: Lorraine Gershman
Commenter Affiliation: American Chemistry Council (ACC)
Document Control Number: EPA-HQ-OAR-2006-0790-2444-A1
Comment Excerpt Number: 16
Comment: The EPA misinterprets the Holding in Sierra Club.
The final rule presents nothing more than a single sentence as justification for requiring that sources meet numeric emission standards established for normal operations during a malfunction event: "Consistent with Sierra Club v. EPA, the EPA has established standards in this rule that apply at all times."[8] The D.C. Circuit's Sierra Club decision does not, however, compel or even support the EPA's position that the same numeric standards established for normal operations must also apply during a malfunction event.
The Sierra Club ruling vacated the exemption for excess emissions during periods of SSM contained in the General Provisions, 40 CFR Part 63 Subpart A, for emission standards for hazardous air pollutants regulated under CAA §112. At issue was the EPA's determination that excess emissions during periods of SSM experienced by major sources are not violations as long as the owner/operator has prepared a startup, shutdown and malfunction plan and complies with a "general duty" to minimize emissions. The court concluded that the "general duty" was not a "section112-compliant standard". However, the court did not state nor even imply that the same emission limits that the EPA establishes for normal operations must apply during SSM events.
In fact, the court clearly indicated that §302(k)'s "inclusion of [the] broad phrase" "any requirement relating to the operation or maintenance of a source to assure continuous emission reduction" in the definition of "emission standard" suggests that the EPA can establish MACT standards consistent with CAA §112 "without necessarily continuously applying a single standard." The court accepted that "continuous" for purposes of §302(k) "does not mean unchanging..." Id. at 1027. The court also highlighted the fact that Congress recognized that it might not be feasible in all cases to prescribe or enforce a numeric emission standard. Congress therefore provided in §112(h) for the establishment of a "work practice" or "operational standard". Id. at 1028.
Turning to this area source rulemaking, the EPA has clear statutory authority to regulate emissions from area sources less stringently than emissions from major sources. In regulating HAP emissions from area sources the EPA may forgo establishing MACT standards pursuant to §112(d)(2) and instead "promulgate standards or requirements ... which provide for the use of generally available control technology or management practices...to reduce emissions of hazardous air pollutants". See, §112(d)(5) (emphasis added). However, in this rule he EPA used its authority under §112(d)(2) to establish MACT numeric emissions standards for Hg and CO.
The EPA is now soliciting comments on its determination in the final rule that area sources must meet the numeric emission standards established for steady-state operations at all times, including periods of malfunction, and that the only enforcement relief that may be available in the event of a malfunction is an "affirmative defense" to civil penalties. The EPA is completely silent on why it is not exercising the discretion and authority provided by Congress in §112(h) and §112(d)(5) to address area source malfunctions; in fact, it does not even mention these statutory authorities. If the EPA wants to act "consistent with" the court's decision in Sierra Club, it should promulgate standards for periods of malfunction pursuant to its §112(h) or §112(d)(5) authority. If the EPA chooses to reject the flexibility that Congress clearly intended the Agency to use when it is not feasible to prescribe or enforce a numeric emission standard, it needs to explain its legal authority for these affirmative defense requirements and why each of the requirements is reasonable and justified, taking into consideration alternative solutions.
[8] Id. at 15565
Response: See the response to EPA-HQ-OAR-2006-0790-2426-A1, excerpt 21, regarding establishing work practice standards for malfunctions. The EPA took comment on whether we were required to use MACT rather than GACT for portions of the source category listed under CAA §112(c)(6) in the 2010 proposal and the 2011 final rule. We were not required to raise this issue under the §307(d)(7)(B) reconsideration process. While we solicited comments on our decision that biomass- and oil-fired boilers were not required to meet §112(c)(6) for POM and thus eligible for  GACT, we did not reopen the legal interpretation that §112(c)(6) requires MACT for  those portions of the category to which that provision applies. Therefore, the portions of the comment suggesting using GACT authority where we have used MACT is outside the scope of this action.
Commenter Name: Lorraine Gershman
Commenter Affiliation: American Chemistry Council (ACC)
Document Control Number: EPA-HQ-OAR-2006-0790-2444-A1
Comment Excerpt Number: 19
Comment: The EPA's inclusion of an affirmative defense is not a substitute for establishing a §112-compliant standard for malfunction events.
ACC believes that the EPA should either revise the numeric standards for Hg and CO to account for malfunction events, or use its statutory authority to establish a §112 work practice or management standard applicable during a malfunction event. There is no language in §112 that authorizes the EPA to offer an owner/operator an "affirmative defense" to civil penalties to cure the fact that it has finalized numeric emission standards that do not represent the emission levels actually "achieved" by the best performing sources "at all times." Moreover, the EPA's offering of an affirmative defense does not bear a reasonable relationship to the purpose of §112 or its requirement to establish standards that consider and address the reality of a potential malfunction of technology. If the EPA chooses to reject the flexibility that Congress clearly intended the Agency to use when it is not feasible to prescribe or enforce a numeric emission standard, it needs to explain why its affirmative defense approach is a better alternative than using the statutory authority provided in §112(h) and §112(d)(5) to establish a work or management practice for a malfunction period.
Response: See the response to EPA-HQ-OAR-2006-0790-2426-A1, excerpt 21, regarding establishing work practice standards for malfunctions. Also, see the response to EPA-HQ-OAR-2006-0790-2437-A1, excerpt 18.
Commenter Name: Robert D. Bessette
Commenter Affiliation: Council of Industrial Boiler Owners (CIBO)
Document Control Number: EPA-HQ-OAR-2006-0790-2443-A1
Comment Excerpt Number: 63
Comment: The EPA has inappropriately placed the burden on the source to prove that excess emissions were caused by a malfunction. As CIBO asserted in earlier comments, malfunctions are in all material respects the same as startup and shutdown and therefore clearly meet the CAA definition for when work practice standards are appropriate. (CAA §112(h).) The EPA should establish a work practice standard that requires pre-determined malfunction plans with practices and procedures for potential malfunctions; require reporting of any malfunctions; address any malfunctions not contemplated and add to the plan and address as appropriate.
Alternatively, if the EPA rejects such work practice standards and, instead, includes an affirmative defense for malfunctions, the terms of the defense need to be changed. First, a source should not have to prove it meets every criterion to successfully claim the affirmative defense. Rather, the different criteria should be factored in evaluating whether the excess emissions should be excused.
Response: The EPA believes that the burden of proof, if a violation of a standard occurs, appropriately lies with the owner/operator of a facility for the affirmative defense. The EPA also agrees that the conditions during a malfunction event must be taken into account and believes that the affirmative defense provisions will support this review. For malfunctions, the EPA is finalizing affirmative defense language for violations of the numerical emission limits that are caused by malfunctions. The EPA recognizes that even equipment that is properly designed and maintained can fail and that such failure can cause a violation of the relevant emission standard. The EPA is including an affirmative defense in the final rule as we have in other recent §111, §112, and §129 rules so as to balance the tension, inherent in many types of air regulation, to ensure adequate compliance while simultaneously recognizing that despite the most diligent of efforts, emission limits may be exceeded under circumstances beyond the control of the source. The EPA must establish emission standards that "limit the quantity, rate, or concentration of emissions of air pollutants on a continuous basis." 42 U.S.C. § 7602(k)(defining "emission limitation and emission standard"). See generally Sierra Club v. EPA, 551 F.3d 1019, 1021 (D.C. Cir. 2008) (emissions limitations under must both continuously apply and meet minimum stringency requirements, even during periods of startup, shutdown and malfunction). Thus, the EPA is required to ensure that emissions limitations are continuous. The affirmative defense for malfunction events meets this requirement by ensuring that even where there is a malfunction, the emission limitation is still enforceable through injunctive relief. See generally, Luminant Generation Co. v EPA, 2012 U.S. App. LEXIS 15722 (5[th] Cir. 2012) (upholding EPA's approval of affirmative defense provisions in a CAA State Implementation Plan).
While "continuous" limitations, on the one hand, are required, there is also case law indicating that in some situations it is appropriate for the EPA to account for the practical realities of technology. For example, in Essex Chemical v. Ruckelshaus, 486 F.2d 427, 433 (D.C. Cir. 1973), the D.C. Circuit acknowledged that in setting standards under CAA section 111 "variant provisions" such as provisions allowing for upsets during startup, shutdown and equipment malfunction "appear necessary to preserve the reasonableness of the standards as a whole and that the record does not support the `never to be exceeded' standard currently in force." See also, Portland Cement Association v. Ruckelshaus, 486 F.2d 375 (D.C.Cir. 1973). Though intervening caselaw such as Sierra Club v. EPA and the CAA 1977 amendments calls into question   the relevance of these cases today, they support the EPA's view that a system that incorporates some level of flexibility is reasonable. The affirmative defense simply provides for a defense to civil penalties for excess emissions that are proven to be beyond the control of the source. By incorporating an affirmative defense, the EPA has formalized its approach to upset events. In a Clean Water Act setting, the Ninth Circuit required this type of formalized approach when regulating "upsets beyond the control of the permit holder." Marathon Oil Co. v. EPA, 564 F.2d 1253, 1272-73 (9th Cir. 1977). But see, Weyerhaeuser Co. v. Costle, 590 F.2d 1011, 1057-58 (D.C. Cir. 1978) (holding that an informal approach is adequate). The affirmative defense provisions give the EPA the flexibility to both ensure that its emission limitations are "continuous" as required by 42 U.S.C. § 7602(k), and account for unplanned upsets and thus support the reasonableness of the standard as a whole.
Further, the EPA's view is that the affirmative defense is consistent with CAA §§113(e) and 304. Section 304 gives district courts jurisdiction "to apply appropriate civil penalties." Section 113(e)(1) identifies the factors that the Administrator or a court shall take into consideration in determining the amount of a penalty to be assessed only after  it has been determined that a penalty is appropriate. The affirmative defense regulatory provision is not relevant to the amount of any penalty to be assessed under §113(e) because if a court determines that the affirmative defense elements have been established, then a penalty is not appropriate and penalty assessment pursuant to the §113(e)(1) factors does not occur.
In exercising its authority under §112 to establish emission standards (at a level that meets the stringency requirements of §112), the EPA necessarily defines conduct that constitutes a violation. The EPA's view is that the affirmative defense can be viewed as defining two categories of violation. If there is a violation of the emission standard and the source demonstrates that all the elements of the affirmative defense are met, only injunctive relief is available. All other violations of the emission standard are subject to injunctive relief and penalties. The CAA does not require that all violations be treated equally.
The EPA's judgment is that the affirmative defense criteria capture the appropriate considerations in determining whether penalties are appropriate when a violation occurs as the result of a malfunction. As noted above, the affirmative defense criteria overlap to some extent with the penalty assessment criteria set forth in §113(e), but are not identical. For example, size of business is one of the factors listed in §113(e), but is not reflected in the EPA's affirmative defense. This reflects the EPA's view that when a violation is caused by a malfunction, the size of the business is not relevant to whether penalties should be excused. If the violation was unavoidable and could not have been prevented, the EPA's view is that it would be unfair to impose a penalty no matter the size of the business.
Commenter Name: Matthew Todd
Commenter Affiliation: American Fuel & Petrochemical Manufacturers (AFPM) and the American Petroleum Institute (API)
Document Control Number: EPA-HQ-OAR-2006-0790-2482-A2
Comment Excerpt Number: 26
Comment: The EPA acknowledges that the sources that will be subject to the proposal sometimes will be unable to comply with the standards because of malfunctions, even if their equipment is properly designed and maintained, through no fault of the source.[43] Rather than promulgate a standard of performance that eliminates that situation, so that the regulated emission sources will be subject to differentiated requirements including during malfunction events, the EPA offers instead an "affirmative defense." The proposed affirmative defense shifts the burden to the source to prove that a myriad number of criteria are met and actions were taken by the source (which criteria bear no direct relation to the statutory factors for standards of performance in the CAA or delineated in the definition of malfunction in §63.2), in order to avoid "civil penalties." Inclusion of the affirmative defense does not cure the EPA's failure to set emission standards that are achievable during malfunctions. The proposed standards, incorporating the affirmative defense, still do not represent emission limitations that have been achieved in practice by the best performers.
[43] 76 FR 15613 (March 21, 2011)
Response: See the response to EPA-HQ-OAR-2006-0790-2443-A1, excerpt 63, regarding burden of proof. See also the response to EPA-HQ-OAR-2006-0790-2426-A1, excerpt 21.
Commenter Name: Matthew Todd
Commenter Affiliation: American Fuel & Petrochemical Manufacturers (AFPM) and the American Petroleum Institute (API)
Document Control Number: EPA-HQ-OAR-2006-0790-2482-A2
Comment Excerpt Number: 28
Comment: Even if the proposed affirmative defense were not unreasonably vague and restrictive, as discussed in the following portion of these comments, being able to assert a defense obviously is not the same as complying with emission limitations that are properly set in accordance with CAA §112. Although a source believes it qualifies for the affirmative defense, it may be considered to have violated the standards -- and may have to report violations, certify noncompliance, etc. -- until there has been an enforcement proceeding and the source has successfully asserted the affirmative defense. The affirmative defense places the source in the position of proving its innocence, rather than EPA or another enforcement authority having to prove that the source violated the CAA.
Response: See the responses to EPA-HQ-OAR-2006-0790-2437-A1, excerpt 18, and EPA-HQ-OAR-2006-0790-2443-A1, excerpt 63.
Commenter Name: Michael L. Krancer
Commenter Affiliation: Pennsylvania Department of Environmental Protection (PA DEP)
Document Control Number: EPA-HQ-OAR-2006-0790-2449-A1
Comment Excerpt Number: 8
Comment: Ultimately, to assert the affirmative defense, the owner or operator of the source must prove by a preponderance of the evidence that excess emissions were caused by a sudden, infrequent, and unavoidable failure of air pollution control and monitoring equipment, process equipment or a process to operate in a normal or usual manner.
PA DEP believes that the burden of proof rests on the owners or operators of the sources to show that the emission limit exceedances are beyond their control and that they took every step necessary to prevent such occurrences from taking place. However, the criteria specified in §63.11226 (a)(l)(ii) and §63.11226 (a)(1 )(iii) are too subjective and may preclude owners and operators from using the affirmative defense provisions.
Response: See the response to EPA-HQ-OAR-2006-2443-A1, excerpt 63, regarding burden of proof. See also the response to EPA-HQ-OAR-2006-0790-2437-A1, excerpt 18.
Commenter Name: Matthew Todd
Commenter Affiliation: American Fuel & Petrochemical Manufacturers (AFPM) and the American Petroleum Institute (API)
Document Control Number: EPA-HQ-OAR-2006-0790-2482-A2
Comment Excerpt Number: 31
Comment: Proposed §63.7501(a)(1) [and corresponding area rule language]:
The excess emissions:
      (i) Were caused by a sudden, infrequent, and unavoidable failure of air pollution control and monitoring equipment, process equipment, or a process to operate in a normal or usual manner, and
      (ii) Could not have been prevented through careful planning, proper design or better operation and maintenance practices; and
      (iii) Did not stem from any activity or event that could have been foreseen and avoided, or planned for; and
      (iv) Were not part of a recurring pattern indicative of inadequate design, operation, or maintenance; and
      §63.7501(a)(1)(i) [and corresponding area rule language] reflects the key criteria from the definition of malfunction in §63.2.[48]
However, the (ii) through (iv) paragraphs are unreasonable, arbitrary, and capricious restatements and expansions of the last sentence of the §63.2 malfunction definition and should be deleted and replaced with the language from the definition. The EPA has not explained in the rulemaking record their legal or logical basis for expanding and changing the malfunction criteria and, in particular, have not proposed changing the definition, either through proposing a revised definition in this rulemaking or proposing to amend §63.2. As explained below, these new malfunction criteria would not allow any event to be a malfunction, since the criteria, if interpreted literally, cannot be met. The phrases used in these paragraphs are subject to a wide range of interpretations, and on their face do not recognize any need for reasonableness or cost-effectiveness. The language used presumes guilt and imposes an unclear and apparently impossible level of proof for a source to defend itself. The proposed wording doesn't even track the language of the definition of "malfunction" by including an analysis of whether an event was due to poor maintenance or careless operation. Instead, the proposal focuses on whether "proper design" or "better operation and maintenance practices" could have prevented a malfunction. There are no objective criteria that can be used to determine what "could" have been and there is probably no situation where, in hindsight and without considering cost or likelihood, that an event could not have been prevented.
[48] Malfunction means any sudden, infrequent, and not reasonably preventable failure of air pollution control and monitoring equipment, process equipment, or a 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. Failures that are caused in part by poor maintenance or careless operation are not malfunctions.
Response: See the response to EPA-HQ-OAR-2006-0790-2426-A1, excerpt 21, regarding establishing work practice standards for malfunctions. Also, see the response to EPA-HQ-OAR-2006-0790-2437-A1, excerpt 18. See the response to EPA-HQ-OAR-2006-0790-2443-A1, excerpt 63, regarding burden of proof.
Commenter Name: Lorraine Gershman
Commenter Affiliation: American Chemistry Council (ACC)
Document Control Number: EPA-HQ-OAR-2006-0790-2444-A1
Comment Excerpt Number: 20
Comment: The EPA's affirmative defense requirements are unreasonable and not consistent with §112.
In the preamble to the final Area Source Boiler Rule, the EPA presents the affirmative defense as a potential "response" an owner/operator may take to "an action to enforce the standards set forth in 40 CFR 63.11201." See 76 FR 15554, 15565. The regulatory language in §63.11226 also opens with the words "In response to an action to enforce the standards set forth in..." and repeats this thought in paragraph (a) of the section: "To establish the affirmative defense in any action to enforce such a limit..." (emphasis added). This opening language leaves a regulated party to believe that if any action is taken against that party to enforce an emission limit exceeded during a malfunction, the party may avail itself of an affirmative defense if it meets various criteria. However, this is not the way the EPA's affirmative defense would play out.
In §63.11226 (b), the EPA establishes strict notification requirements that must be followed for the owner/operator to be able even to raise an affirmative defense if and when an enforcement action is brought. First, the owner/operator must notify the EPA by phone or FAX as soon as possible, but no later than 2 business days after the "initial occurrence of the malfunction." Then, within 45 days of the "initial occurrence of the exceedance of the standard", the owner/operator must submit a written report accompanied by all necessary supporting documentation to show that it has met each and every requirement set forth in paragraph (a) of §63,11226. Because of these short time frames, the reality is that the EPA is requiring the facility to present its entire detailed defense in writing to the EPA before the EPA has even decided whether to take any enforcement action. To require a party to lay out its entire defense to a potential future enforcement action before that action may be taken is wholly inappropriate and unacceptable.
The EPA has cited no legal authority for its use of affirmative defense requirements that inappropriately and unlawfully shift the burden to the facility to prove by a preponderance of the evidence that any excess emissions were caused by a true malfunction and that the facility meets all of the other specified factors in §63.11226. The EPA's affirmative defense places the facility in the position of proving its innocence, rather than the EPA or other regulatory authority bearing the burden to prove that the facility violated the CAA.
Response: See the response to EPA-HQ-OAR-2006-0790-2482-A2, excerpt 44, regarding 2-day malfunction notice and EPA-HQ-OAR-2006-0790-2482-A2, excerpt 43, regarding 45-day affirmative defense requirements. Also, see the response to EPA-HQ-OAR-2006-0790-2437-A1, excerpt 18. See the response to EPA-HQ-OAR-2006-0790-2443-A1, excerpt 63, regarding burden of proof.
Commenter Name: Matthew Todd
Commenter Affiliation: American Fuel & Petrochemical Manufacturers (AFPM) and the American Petroleum Institute (API)
Document Control Number: EPA-HQ-OAR-2006-0790-2482-A2
Comment Excerpt Number: 27
Comment: It is unclear where the EPA finds the legal authority in the CAA to shift the burden to the regulated community of proving (or disproving) essential elements of an alleged violation. The statute is silent as to the issue and "the ordinary default rule [is] that plaintiffs bear the risk of failing to prove their claims." Shaeffer v. Weast, 546 U.S. 49 (2005), quoting McCormick on Evidence §337, at 412 ("The burdens of pleading and proof with regard to most facts have and should be assigned to the plaintiff who generally seeks to change the present state of affairs and who therefore naturally should be expected to bear the risk of failure or proof or persuasion"); C. Mueller & L. Kirkpatrick, Evidence § 3.1, p. 104 (3d ed. 2003) ("Perhaps the broadest and most accepted idea is that the person who seeks court action should justify the request, which means that the plaintiffs bear the burdens on the elements in their claims"). While the Supreme Court has recognized exceptions such as affirmative defenses, courts retain the authority to establish such rules unless Congress acts to delegate that authority. In this instance, the EPA has not provided any statutory authority, or any real justification, for requiring a source to prove its innocence; moreover, to fully demonstrate its innocence within 45 days of the event, without even being charged. Rather, if the EPA adopts an approach along the lines of the proposed affirmative defense, it should be stated instead in terms that, once a source has claimed that its excess emissions were related to a malfunction, it will not be considered to be in violation of the standards unless the enforcement authority demonstrates that the source is not entitled to claim the malfunction.
Response: See the response to EPA-HQ-OAR-2006-0790-2482-A2, excerpt 44, regarding 2-day malfunction notice and EPA-HQ-OAR-2006-0790-2482-A2, excerpt 43, regarding 45-day affirmative defense requirements. Also, see the response to EPA-HQ-OAR-2006-0790-2437-A1, excerpt 18. See the response to EPA-HQ-OAR-2006-0790-2443-A1, excerpt 63, regarding burden of proof.
Commenter Name: Allison Watkins, Baker Botts
Commenter Affiliation: Class of '85 Regulatory Response Group
Document Control Number: EPA-HQ-OAR-2006-0790-2458-A1
Comment Excerpt Number: 2
Comment: The Class of '85 supports the EPA's addition of an affirmative defense to civil penalties for exceedences of emissions limits that are caused by malfunctions. The EPA is correct that even equipment that is properly designed and maintained can sometimes fail unexpectedly. Facilities that exceed emissions standards during such unforeseen events should not be penalized.
Response: The EPA thanks the commenter for their support.
Commenter Name: Randal G. Oswald
Commenter Affiliation: Integrys Energy Group
Document Control Number: EPA-HQ-OAR-2006-0790-2472-A2
Comment Excerpt Number: 2
Comment: Integrys supports the EPA's addition of an affirmative defense to civil penalties for exceedences of emissions limits that are caused by malfunctions. The EPA is correct that even equipment that is properly designed and maintained can sometimes fail unexpectedly. Facilities that exceed emissions standards during such unforeseen events should not be penalized.
Response: The EPA thanks the commenter for their support.
Commenter Name: Matthew Todd
Commenter Affiliation: American Fuel & Petrochemical Manufacturers (AFPM) and the American Petroleum Institute (API)
Document Control Number: EPA-HQ-OAR-2006-0790-2482-A2
Comment Excerpt Number: 30
Comment: The affirmative defense is based on the presumption that all malfunctions are violations without providing for any due process. If the affirmative defense is finalized, the EPA should separate it from that presumption and make clear that a source's use of the affirmative defense is not an admission by the source that the malfunction was a violation.
Response: The affirmative defense criteria are not requirements that a source must meet. In an action to enforce a violation of a standard caused by a malfunction, a source can choose to assert an affirmative defense. The affirmative defense is not relevant to malfunctions that do not result in violations of emission standards.
Commenter Name: Lorraine Gershman
Commenter Affiliation: American Chemistry Council (ACC)
Document Control Number: EPA-HQ-OAR-2006-0790-2444-A1
Comment Excerpt Number: 22
Comment: Section 63.11226 states: "The affirmative defense shall not be available for claims for injunctive relief." The preamble is silent as to why the affirmative defense would not apply to injunctive relief. If the facility meets the requirements of the affirmative defense provision, why may it not be raised as a defense to a claim for injunctive relief? The EPA's assertion to the contrary is unsupported by any explanation.
Response: The affirmative defense applies to civil penalties, including civil administrative penalties and penalties under §120, but does not apply to injunctive relief. The EPA's view is that the affirmative defense can be viewed as defining two categories of violation. If there is a violation of the emission standard and the source demonstrates that all the elements of the affirmative defense are met, only injunctive relief is available. All other violations of the emission standard are subject to injunctive relief and penalties. The CAA does not require that all violations be treated equally. Further, a citizen suit claim under §304 allows citizens to commence a civil action against any person alleged to be in violation of "an emission standard or limitation under this chapter." The CAA, however, allows the EPA to establish such "enforceable emission limitations." Thus, the citizen suit provision clearly contemplates enforcement of the standards that are defined by the EPA. As a result, where the EPA defines its emissions limitations and enforcement measures to allow a source the opportunity to prove its entitlement to a lesser degree of violation (not subject to penalties) in narrow, specified circumstances, as the EPA did here, penalties are not "appropriate" under §304.

The EPA's view is that an affirmative defense to civil penalties for exceedances of applicable emission standards during periods of malfunction appropriately balances competing concerns. On the one hand, citizen enforcers are concerned about additional complications in their enforcement actions. On the other hand, industrial sources are concerned about being penalized for violations caused by malfunctions that could not have prevented and were otherwise appropriately handled (as reflected in the affirmative defense criteria). The EPA has utilized its §301(a)(1) authority to issue regulations necessary to carry out the CAA in a manner that appropriately balances these competing concerns.
Commenter Name: Lorraine Gershman
Commenter Affiliation: American Chemistry Council (ACC)
Document Control Number: EPA-HQ-OAR-2006-0790-2444-A1
Comment Excerpt Number: 21
Comment: The EPA states that the affirmative defense may be raised to a "claim for civil penalties" but does not define "civil penalties". For example, are these meant to include a "civil administrative penalty" imposed by the EPA under §113(d) of the CAA? A "noncompliance" penalty sought under §120 of the CAA? A "civil penalty" imposed by a court?
It is also unclear how the affirmative defense would apply to enforcement actions by state and local governments, or to private citizen enforcement actions brought under §304 of the CAA. While in no way endorsing the EPA's affirmative defense provision, ACC believes that if retained by the Agency after reconsideration, the provisions should clearly state that it is applicable to any enforcement action.
Response: See the response to EPA-HQ-OAR-2006-0790-2444-A1, excerpt 22.
Commenter Name: Matthew Todd
Commenter Affiliation: American Fuel & Petrochemical Manufacturers (AFPM) and the American Petroleum Institute (API)
Document Control Number: EPA-HQ-OAR-2006-0790-2482-A2
Comment Excerpt Number: 29
Comment: It is unclear how the affirmative defense will apply to enforcement actions by state and local governments, or to private citizen enforcement actions under CAA §304. The March 21, 2011 final rule preamble speaks only in terms of application of the affirmative defense in an EPA enforcement action.[44] An affirmative defense should clearly state that it is applicable to enforcement actions by states or citizen-suit plaintiffs, as well.
The proposal states that: "The affirmative defense shall not be available for claims for injunctive relief."[45] The preambles to this proposed rule or the March 21, 2011 final rule do not give any explanation for why the affirmative defense would not apply to injunctive relief. If in fact the excess emissions associated with the equipment or process failure are not reasonably preventable, then there is no apparent reason why injunctive relief should be available either. As a matter of law, injunctive relief may not be available in cases where a civil penalty cannot be imposed.[46]
Maintaining liability for injunctive relief renders the affirmative defense particularly ineffective with respect to citizen suits. If the source is even potentially subject to injunctive relief, and therefore could be required to pay the citizen-plaintiff's attorneys fees even if the source successfully demonstrated that it otherwise qualified for the affirmative defense, then the affirmative defense would not accomplish the EPA's stated objective of providing relief in situations where the emission limitations cannot be met despite proper design and operation of process and control equipment.
At a minimum, the EPA should state that the affirmative defense applies to civil penalties, civil administrative penalties, noncompliance penalties, and injunctive relief, in an action brought by the EPA, a state, or a citizen-suit plaintiff. The EPA also should reword the "affirmative defense," so that it states that a source "will not be deemed in violation of" the NESHAP for excess emissions or other deviations from the standards, associated with a malfunction event, unless the event, and the source's response to the event, do not meet the criteria spelled out in the regulations.[47] Configured in that way, this provision should be called something other than an "affirmative defense," such as an "alternative standard for SSM events."
  [44] Id.
[45] Proposed §63.705.
 [46] See Sierra Club v. Otter Tail Power Co., 615 F.3d 1008 (8th Cir. 2010) (under concurrent remedy doctrine, injunctive relief for a CAA violation is barred when civil penalty is barred by statute of limitations).
[47] Compare, e.g., 40 CFR §80.613 (stating that persons demonstrating specified defenses "will not be deemed in violation" and are not "deemed liable for a violation" of diesel fuel sulfur program regulations).
Response: See the response to EPA-HQ-OAR-2006-0790-2444-A1, excerpt 22.
Commenter Name: Lorraine Gershman
Commenter Affiliation: American Chemistry Council (ACC)
Document Control Number: EPA-HQ-OAR-2006-0790-2444-A1
Comment Excerpt Number: 26
Comment: Requirement §63.11226 (a)(4) would disallow the affirmative defense if a malfunction involved bypassing control equipment or a process, and the bypass was not taken "to prevent loss of life, severe personal injury, or severe property damage." This language is both unyielding and subjective. It is unyielding in that it fails to allow any consideration of the fact that bypassing the control equipment or the process may have been an appropriate exercise of good air pollution control practices. For example, a bypass can constitute the best air pollution control practice in response to an upset in order to prevent excess emissions, e.g., to avoid fouling of pollution control equipment media that in turn would result in reduced pollution control equipment efficiency or increased pollution control equipment downtime. Additionally, in some cases the air emissions from a venting event are lower than if the facility had an uncontrolled shutdown to avoid venting. An uncontrolled shutdown could also impact other media, e.g., a wastewater dump from scrubbers, solid waste, etc. And, a shutdown would necessitate additional startup emissions. Arguably, venting for a short period due to malfunction could result in lower emission levels than a non-orderly shutdown and subsequent restart. Yet, as worded, this requirement would discourage an owner/operator from taking the less-impactful option because it would mean that he could not avail himself of an affirmative defense for the malfunction.
This requirement is subjective in its use of the word "severe." Reasonable minds could disagree on what constitutes "severe" property damage, or "severe" personal injury. Lastly, this requirement is not supported by any explanation as to why "bypassing" control equipment or a process is absolutely unacceptable except when an owner/operator is faced with these dire consequences.
Response: With regard to severe property damage, the EPA believes that a bypass of control equipment or a process, which results in a violation, should be an exception and not undertaken lightly, and has maintained the word "severe" in this criteria.
Commenter Name: Matthew Todd
Commenter Affiliation: American Fuel & Petrochemical Manufacturers (AFPM) and the American Petroleum Institute (API)
Document Control Number: EPA-HQ-OAR-2006-0790-2482-A2
Comment Excerpt Number: 37
Comment: When referring to affirmative defense requirements, the EPA should not be suggesting that they are only concerned with "severe" property damage. Nor is it clear how the Agency expects an operator, during an emergency, to decide whether the property damage that might occur due to a failure to act would be "severe." The word "severe" should be deleted from this proposed language. Any situation that presents a risk to property or equipment could be more or less "severe" in the end, but the level of potential damage cannot be precisely foreseen. In addition, there can be substantial room for disagreement about what constitutes "severe" property damage. The use of "severe" renders this requirement too subjective to be practically enforceable.
Response: See the response to EPA-HQ-OAR-2006-0790-2444-A1, excerpt 26.
Commenter Name: Matthew Todd
Commenter Affiliation: American Fuel & Petrochemical Manufacturers (AFPM) and the American Petroleum Institute (API)
Document Control Number: EPA-HQ-OAR-2006-0790-2482-A2
Comment Excerpt Number: 38
Comment: Potential "severity" is not the proper focus of affirmative defense requirements. Bypassing control equipment or the process in some cases might be an appropriate exercise of good air pollution control practices. For example, a bypass can be the appropriate response to an upset (e.g., in order to prevent fouling of the pollution control equipment media). Such a bypass could save the control device from damage and thus result in reduced control equipment downtime or increased pollutant removal.
Response: See the response to EPA-HQ-OAR-2006-0790-2444-A1, excerpt 26.
Commenter Name: Matthew Todd
Commenter Affiliation: American Fuel & Petrochemical Manufacturers (AFPM) and the American Petroleum Institute (API)
Document Control Number: EPA-HQ-OAR-2006-0790-2482-A2
Comment Excerpt Number: 42
Comment: Proposed §63.7501(a)(9) [and corresponding area rule language]:
      A written root cause analysis has been prepared, the purpose of which is to determine, correct, and eliminate the primary causes of the malfunction and the excess emissions resulting from the malfunction event at issue. The analysis shall also specify, using best monitoring methods and engineering judgment, the amount of excess emissions that were the result of the malfunction.
The EPA should clarify that the requirement to perform a RCA "to determine, correct, and eliminate the primary causes of the malfunction" does not require that identified corrective actions be completed within the demonstration period. Long- term corrective action can require facility modifications that can take months to years to design and execute or procedural changes that can take weeks to months to safely implement.
Response: The EPA did not intend to prescribe a specific methodology, given that "root cause analysis" is not a defined term in the rule. The EPA believes it has provided clear criteria within the affirmative defense provisions to support the development of an affirmative defense report. The EPA believes that these provisions will result in a minor administrative burden, but will result in sources analyzing their violation emissions to reduce or avoid those emissions in the future, which is an environmental benefit. A root cause analysis is not mandatory and is only required if a source seeks to assert an affirmative defense. However, such an analysis is beneficial in resolving or preventing violations and excess emissions whether the source seeks to assert the affirmative defense or not. A root cause analysis is one example of what constitutes good air pollution control practices to minimize emissions. A root cause analysis is not required for every malfunction, it is only required for those malfunctions for which the source chooses to assert an affirmative defense.
Commenter Name: Lorraine Gershman
Commenter Affiliation: American Chemistry Council (ACC)
Document Control Number: EPA-HQ-OAR-2006-0790-2444-A1
Comment Excerpt Number: 28
Comment: Requirement §63.11226 (a)(9) is problematic in that it requires a party to prepare a "written root cause analysis to determine, correct and eliminate the primary causes of the malfunction and the excess emissions resulting from the malfunction event at issue." This directive assumes that any and all malfunctions can be determined, corrected and eliminated. If a malfunction by definition is unavoidable, unforeseeable, and not reasonably preventable, it may be that the first time it happens its primary cause cannot be determined. If the cause cannot be determined, it cannot be corrected. So unless a party can figure out why something malfunctioned, it cannot claim to have had a "malfunction." Not only is this nonsensical, it is a significant departure in EPA policy with no justification provided. For example, in the General Provisions applicable to NSPS, the EPA recognizes that the cause of a malfunction cannot always be known. See 40 CFR 60.7(b)(2) which requires that written reports of excess emissions include the "nature and cause of any malfunction, if known...." (Emphasis added.) Lastly, requiring a party to eliminate the primary causes of the malfunction, without regard to "taking into consideration the cost of achieving such" elimination and the "non-air quality health and environmental impacts and energy requirements" associated with its elimination is unreasonable and entirely inconsistent with the criteria for standards established under §112(d) of the CAA.[10]
[10] For example, it might be theoretically possible to eliminate the excess emissions associated with the malfunction by installing totally redundant pollution control equipment, or pollution control equipment with far more capacity than needed for normal operations. But this would not reflect the performance of the best performers on which the MACT "floor" is to be based, nor would it appear to take cost and other factors into consideration as the statute requires for beyond-the-floor MACT standards. Moreover, the proposed requirement to eliminate "the primary causes of the malfunction" and not just to eliminate "the excess emissions resulting from the malfunction event" lies entirely outside of EPA's authority under the CAA, which is limited to establishing and enforcing emission limitations, not dictating plant operations.
Response: See the response to EPA-HQ-OAR-2006-0790-2782-A2, excerpt 42, regarding root cause analysis.
Commenter Name: Robert D. Bessette
Commenter Affiliation: Council of Industrial Boiler Owners (CIBO)
Document Control Number: EPA-HQ-OAR-2006-0790-2443-A1
Comment Excerpt Number: 64
Comment: The proposed criteria in the reconsideration rule for establishing an affirmative defense are poorly defined and do not reflect on whether a malfunction actually occurred. For example, the requirement that sources rely on overtime workers to address the malfunction objectively proves nothing. (76 FR 15598.) The personnel onsite at the time of the malfunction event may not be the personnel with the expertise to resolve the malfunction, yet if they do not remain onsite as overtime personnel, under the EPA's structure, that source fails to meet one of the indicia of a malfunction. Moreover, the affirmative defense criteria in some cases impose draconian obligations on malfunctioning sources without any regard for their cost-effectiveness. For example, the source must show "[r]epairs were made as expeditiously as possible . . . excess emissions (including any bypass) were minimized to the maximum extent practicable . . . [a]ll possible steps were taken to minimize the impact of the excess emissions on ambient air quality, the environment and human health." (76 FR 15598-599 (emphasis added).) This could lead to the EPA or a court imposing extreme MACT regulations on sources during malfunctions.
Response: The final rule requires that to establish the affirmative defense the owner must prove by a preponderance of evidence that repairs were made as expeditiously as possible when a violation occurs. We have re-evaluated the language concerning the use of off-shift and overtime labor, to the extent practicable, to make the repairs and believe that the language is not necessary. Thus, the language has been eliminated from the final rule. When evaluating a party's claim of the affirmative defense, we may analyze the use of labor in the context of the event when evaluating whether the repairs have been made as expeditiously as practical. See the response to EPA-HQ-OAR-2006-0790-2482-A2, excerpt 42, regarding root cause analysis. See also the response to EPA-HQ-OAR-2006-0790-2443-A1, excerpt 63.
Commenter Name: Janice Nolen
Commenter Affiliation: American Lung Association
Document Control Number: EPA-HQ-OAR-2006-0790-2471-A2
Comment Excerpt Number: 8
Comment: The EPA should review the exposure estimates to recognize that significant air emissions are likely to result from malfunctioning equipment as well. Although some malfunctions may be unpredictable and sudden, the EPA must account for the harmful emissions that occur during malfunctions when determining whether or not a facility is in compliance with emissions standards. The EPA needs to acknowledge that malfunctions are likely events which must be factored into the exposure estimates. The EPA's language implies that these are rare events, but such is not the case, as recent reports have shown (EPA, 2011d). The historical industry evidence should provide more than adequate information on likely malfunctions and exposures.
Unfortunately, the proposed "affirmative defense" option creates a loophole that will not likely reduce the risk of malfunctions, providing facilities with a way to avoid penalties that could provide incentives to reduce malfunctions. The EPA needs to close this loophole as standards need to limit emissions during all phases of operation, including when equipment fails to work properly. Assessing compliance with emissions standards based on the "good faith efforts" of boiler and incinerator operators to minimize emissions during malfunctions are not a sufficient safeguard against harmful air pollution.
Response: The EPA recognizes that even equipment that is properly designed and maintained can fail and that such failure can cause an exceedance of the relevant emission standard. The EPA is including an affirmative defense in the final rule to ensure adequate compliance while simultaneously recognizing that despite the most diligent of efforts, emission limits may be exceeded under circumstances beyond the control of the source. The EPA must establish emission standards that "limit the quantity, rate, or concentration of emissions of air pollutants on a continuous basis." 42 U.S.C. §7602(k)(defining "emission limitation and emission standard"). See generally Sierra Club v. EPA, 551 F.3d 1019, 1021 (D.C. Cir. 2008) (emissions limitations under CAA §112 must both continuously apply and meet §112's minimum stringency requirements, even during periods of startup, shutdown and malfunction). Thus, the EPA is required to ensure that §112 emissions limitations are continuous. The affirmative defense for malfunction events meets this requirement by ensuring that even where there is a malfunction, the emission limitation is still enforceable through injunctive relief. The affirmative defense provisions give the EPA the flexibility to both ensure that its emission limitations are "continuous" as required by 42 U.S.C. §7602(k), and account for unplanned upsets and thus support the reasonableness of the standard as a whole.
To the extent the comment focuses on potential exposures and risks associated with malfunctions, we note that this rulemaking is under the technology-based provisions of CAA §112 and not under CAA §112(f).
Commenter Name: Lorraine Gershman
Commenter Affiliation: American Chemistry Council (ACC)
Document Control Number: EPA-HQ-OAR-2006-0790-2444-A1
Comment Excerpt Number: 23
Comment: The individual requirements in §63.11226(a)(1) through (9) that a facility must meet to be allowed to raise an affirmative defense, a number of these requirements are not relevant to whether a malfunction, as defined in §63.2 occurred.
Malfunction means any sudden, infrequent, and not reasonably preventable failure of air pollution control and monitoring equipment, process equipment, or a 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. Failures that are caused in part by poor maintenance or careless operation are not malfunctions.
Most of the conditions for establishing an affirmative defense in §63.11226 may be relevant to determining whether the facility undertook appropriate and necessary measures to mitigate any excess emissions resulting from the specific malfunction, but do not in any way inform a determination of whether a piece of equipment has met the definition of a malfunction. For example, §63.11226(a)(2) requires that "off-shift and overtime labor, to the extent practicable" were used to make the repairs needed. ACC fails to understand how this requirement relevant to determining whether a piece of equipment has "malfunctioned". See also (a)(3), (a)(5), (a)(6), (a)(7). (a)(8) and (a)(9).
Response: The affirmative defense criteria are not requirements that a source must meet. In an action to enforce a violation of a standard caused by a malfunction, a source can choose to assert an affirmative defense. The affirmative defense is not relevant to malfunctions that do not result in violations of emission standards. The final rule requires that to establish the affirmative defense the owner must prove by a preponderance of evidence that repairs were made as expeditiously as possible when a violation occurs. We have re-evaluated the language concerning the use of off-shift and overtime labor, to the extent practicable, to make the repairs and believe that the language is not necessary. Thus, the language has been eliminated from the final rule. When evaluating a party's claim of the affirmative defense, we may analyze the use of labor in the context of the event when evaluating whether the repairs have been made as expeditiously as practical.
Commenter Name: Lorraine Gershman
Commenter Affiliation: American Chemistry Council (ACC)
Document Control Number: EPA-HQ-OAR-2006-0790-2444-A1
Comment Excerpt Number: 25
Comment: Another subjective and particularly problematic requirement is (a)(8) which requires that: "At all times, the facility was operated in a manner consistent with good practices for minimizing emissions." ACC strongly objects to the EPA reaching beyond the equipment that malfunctioned to require a party to prove by a preponderance of the evidence that "at all times, the facility was operated in a manner consistent with good practices for minimizing emissions." (Emphasis added.) First, the EPA does not define "facility" or "affected facility" in the final area source boiler rule, nor is it included in the definitions at 40 CFR 63.2; common usage of the term facility suggests that it means the entire plant.[9] Second, and more importantly, the EPA is requiring a party to comply with a requirement that is ambiguous, highly subjective, and impossible. This is not reasoned decision-making. We note that in its proposed reconsideration of various provisions of the Chemical Manufacturing Area Source Rule ("CMAS"), the EPA has revised this requirement and changed the word "facility" to "affected source." (77 FR 4522 January 30, 2012.) If these affirmative defense provisions are included in the final reconsidered  Area Source Boiler Rule, the EPA should follow what it has done in CMAS and change "facility" to "affected source."

[9] The term "affected facility" is used in NSPS and is defined in the NSPS General Provisions at 40 CFR 60.2, but the MACT standards in Part 63 use the term "affected source," and the definition of affected source in 40 CFR 63.2 states "Affected source may be defined differently for part 63 than affected facility and stationary source in parts 60 and 61, respectively." The EPA does define the "affected source" in §63.11194 ("the collection of all existing industrial, commercial, and institutional boilers within a subcategory" or "each new or reconstructed industrial, commercial, or institutional boiler within a subcategory").

Response: We agree with the comment concerning the use of "affected facility" versus "affected source." As a result, the EPA is changing "affected facility" to "affected source."
Commenter Name: Matthew Todd
Commenter Affiliation: American Fuel & Petrochemical Manufacturers (AFPM) and the American Petroleum Institute (API)
Document Control Number: EPA-HQ-OAR-2006-0790-2482-A2
Comment Excerpt Number: 41
Comment: Proposed §63.7501(a)(8) (and corresponding area rule language):
      At all times, the facility was operated in a manner consistent with good practices for minimizing emissions; and
Proposed §63.7501(a)(8) is a general requirement and serves no purpose in the affirmative defense provisions since §63.7501(a)(3) already requires that malfunction emissions be minimized. Furthermore, this paragraph deals with the entire facility not just the malfunctioning equipment or operation. Its inclusion in the affirmative defense provisions suggests that you cannot defend yourself for a particular malfunction event if there are excess emissions (e.g., from a startup or shutdown activity) anywhere else in the facility having nothing to do with the malfunctioning operation.
Response: See the response to EPA-HQ-OAR-2006-0790-2437-A1, excerpt 18. See also the response to EPA-HQ-OAR-2006-0790-2444-A1, excerpt 25.
Commenter Name: Matthew Todd
Commenter Affiliation: American Fuel & Petrochemical Manufacturers (AFPM) and the American Petroleum Institute (API)
Document Control Number: EPA-HQ-OAR-2006-0790-2482-A2
Comment Excerpt Number: 35
Comment: The second sentence in proposed (a)(2), regarding the use of off-shift and overtime labor, is based on misperceptions that repairs are always needed and that using additional labor somehow indicates expediency. As mentioned previously, often the excess emissions have ceased prior to repair work occurring or do not require a repair to be made. Even where repairs are the critical path to minimizing emissions, work often may be managed adequately by shift personnel. In any given case, the enforcement authority may choose to question whether appropriate steps were taken to minimize emissions, so a firm requirement to bring in off-shift or overtime personnel when they are not needed serves no enforcement purpose. As proposed, this language requires use of off-shift and overtime labor if a source wants to use the affirmative defense, even if the excess emissions were stopped before such personnel could be called or no repair is needed or all needed personnel were already available onsite.
Response: See the response to EPA-HQ-OAR-2006-0790-2444-A1, excerpt 23.
Commenter Name: Matthew Todd
Commenter Affiliation: American Fuel & Petrochemical Manufacturers (AFPM) and the American Petroleum Institute (API)
Document Control Number: EPA-HQ-OAR-2006-0790-2482-A2
Comment Excerpt Number: 40
Comment: Proposed §63.7501(a)(6) (and corresponding area rule language):
      All emissions monitoring and control systems were kept in operation if at all possible, consistent with safety and good air pollution control practices; and
Proposed §63.7501(a)(7):
      All of the actions in response to the excess emissions were documented by properly signed, contemporaneous operating logs; and
Proposed §63.7501(a)(7) (and corresponding area rule language) should be revised to reflect the use of current recordkeeping technology. The use of signed logs has declined with the use of various forms of electronic recordkeeping. Rather operators are directed to focus on optimizing operations, and responding to malfunctions, if necessary, not filling out paperwork. Records are maintained of the event characteristics (often electronically), the amount of excess emissions and the supporting calculations (generally done after the event ends and kept in an engineering file), and the steps taken to deal with the event and the excess emissions (sometimes electronically, sometimes on paper). In fact, most records are electronic and thus it may not even be possible to have them "signed".
Thus, we recommend the following replace the proposed language.
 Records are maintained documenting the event, including actions taken to minimize emissions.
Response:  As an alternative, the EPA accepts electronically signed operating logs where the format and method of submission meet the regulatory criteria and are compatible with the EPA and the delegated authorities' electronic submission systems. Any source submitting records electronically should exercise due diligence to assure receipt by the EPA and the delegated authority.
Commenter Name: Matthew Todd
Commenter Affiliation: American Fuel & Petrochemical Manufacturers (AFPM) and the American Petroleum Institute (API)
Document Control Number: EPA-HQ-OAR-2006-0790-2482-A2
Comment Excerpt Number: 22
Comment: The EPA says it "has determined that malfunctions should not be viewed as a distinct operating mode." Since, as defined in §63.2, a malfunction must result in "excess" emissions, and to be "excess" emissions must exceed the emissions that occur during normal operations, it is clear that an emission occurrence cannot be both a malfunction and normal operations. The EPA made this clear in the preamble to the original finalized Part 63 General Provisions where they stated "Excess emissions occur during [SSM] when air pollution is emitted in quantities greater than anticipated by the applicable standard. ... Excess emissions are typically direct indications of noncompliance with the emission standard and, therefore, are directly enforceable." Thus, the EPA has been clear that excess emissions, a malfunction criterion, can only occur when emissions exceed the emission limit for normal operations.
The natural outgrowth of the new position that malfunctions are normal operations is to consider malfunctions in developing the emission limit for normal operations. Yet, the EPA concludes the opposite but offers no explanation of its contradictory positions that malfunctions are normal operations, but should not be considered in developing the emission limitations applicable during normal operations. In fact, the EPA specifically draws the illogical conclusion that since malfunctions are normal operations "any emissions that occur at such times do not need to be factored into development of CAA §112(d) standards, which, once promulgated, apply at all times." Once again no explanation is provided for this nonsensical statement.
Response: The commenter appears to have misinterpreted EPA's explanation for its approach to malfunctions and to have confused several concepts. The EPA has determined that CAA §112 does not require that emissions that occur during periods of malfunction be factored into development of CAA §112 standards. The EPA's position is not that "malfunctions are normal operations" as commenter claims. During periods of malfunction, the otherwise applicable standard applies. Specifically, if a malfunction occurs during a period of startup or shutdown and the standard for startup or shutdown is different than the standard during normal operations, then the standard that applies during that malfunction is the startup or shutdown work practice standard.
Further, 40 CFR 63.2 defines malfunctions a type of failure of equipment or process which causes, or have the potential to cause, "the emissions limitations" in an applicable standard to be exceeded, and does not refer to the emission limit "for normal operations" as commenter suggests. The EPA included this limitation in the definition of malfunction to ensure that minor or routine events need not be addressed by SSM plans or reported to the agency. (68 FR 32592 (May 30, 2003).) Nothing in the definition of malfunction contradicts the EPA's rationale for its approach to malfunctions.
Commenter Name: Matthew Todd
Commenter Affiliation: American Fuel & Petrochemical Manufacturers (AFPM) and the American Petroleum Institute (API)
Document Control Number: EPA-HQ-OAR-2006-0790-2482-A2
Comment Excerpt Number: 23
Comment: (Page 57) The EPA further states:
In Mossville Environmental Action Now v. EPA, 370 F.3d 1232, 1242 (D.C. Cir. 2004), the court upheld as reasonable standards that had factored in variability of emissions under all operating conditions. However, nothing in CAA §112(d) or in case law requires that the EPA anticipate and account for the innumerable types of potential malfunction events in setting emission standards. See, Weyerhaeuser v. Costle, 590 F.2d 1011, 1058 (D.C. Cir. 1978) (``In the nature of things, no general limit, individual permit, or even any upset provision can anticipate all upset situations. After a certain point, the transgression of regulatory limits caused by `uncontrollable acts of third parties,' such as strikes, sabotage, operator intoxication or insanity, and a variety of other eventualities, must be a matter for the administrative exercise of case-by-case enforcement discretion, not for specification in advance by regulation.'')
Further, it is reasonable to interpret CAA §112(d) as not requiring the EPA to account for malfunctions in setting emissions standards. For example, we note that §112 uses the concept of ``best performing'' sources in defining MACT, the level of stringency that major source standards must meet. Applying the concept of ``best performing'' to a source that is malfunctioning presents significant difficulties. The goal of best performing sources is to operate in such a way as to avoid malfunctions of their units.
Again, however, the EPA fails to explain how the Mossville criterion is met for a reasonable standard of factoring in variability under all operating conditions, when no malfunction emission data is included in the database used to make the variability adjustment.
Response: See the response to EPA-HQ-OAR-2006-0790-2482-A2, excerpt 22.
SSM: Out of Scope
Commenter Name: Robert D. Bessette
Commenter Affiliation: Council of Industrial Boiler Owners (CIBO)
Document Control Number: EPA-HQ-OAR-2006-0790-2443-A1
Comment Excerpt Number: 58
Comment: In the reconsidered Area Source Boiler Rule, the EPA determined that  -  consistent with the Agency's decision in the 2011 Final Area Source Rule - it would maintain a work practice/management practice approach for SSM. (76 FR 80541.) (2012 Reconsidered Rule). CIBO supports this approach and the EPA's rationale for establishing work practice standards during periods of startup and shutdown. See 76 FR 15576-77. (2011 Final Rule) Furthermore, CIBO contends that additional work practices are not necessary to reduce emissions during SSM periods.
Response: The EPA thanks the commenter for their support and additional justification.
Commenter Name: Randal G. Oswald
Commenter Affiliation: Integrys Energy Group
Document Control Number: EPA-HQ-OAR-2006-0790-2472-A2
Comment Excerpt Number: 1
Comment: Integrys supports the work practice/management practice approach for startup and shutdown. It is not technically feasible to conduct stack testing during periods of startup and shutdown because of physical limitations and the short duration of startup and shutdown periods. The EPA is correct that operating in startup and shutdown mode for sufficient time to conduct test runs to demonstrate compliance with a stack testing requirement could result in higher emissions than would otherwise occur.
Response: The EPA thanks the commenter for their support.
Commenter Name: Samuel Denisco
Commenter Affiliation: Pennsylvania Chamber of Business and Industry
Document Control Number: EPA-HQ-OAR-2006-0790-2478-A2
Comment Excerpt Number: 8
Comment: The EPA requested comments on whether to include the use of specific fuels during shutdown and startup periods. We also oppose this provision as a standard requirement, since it would be impractical to implement in many occasions.
Response: The EPA did not request comments on this topic for this rulemaking. As stated in the preamble for the proposed reconsideration of final rule, dated December 23, 2011, we are not obligated to respond on the merits to any comments addressing aspects of the final rule beyond the topics for which comments were requested. This comment is not on an issue reopened by the December 23, 2011 FR notice and is outside the scope of the current reconsideration.
Commenter Name: Janice Nolen
Commenter Affiliation: American Lung Association
Document Control Number: EPA-HQ-OAR-2006-0790-2471-A2
Comment Excerpt Number: 7
Comment: We welcome the decision to address the startup and shutdown periods and ensure that boiler operators are trained in startup and shutdown procedures, particularly in procedures to minimize emissions. However, the proposal relies only on work practice standards during the startup and shutdown phases while not establishing numeric emission limits or other performance metrics for units for those phases. As suggested in the proposed reconsideration, we would support requiring the use of specific fuels during the startup and shutdown phases that would reduce harmful air emissions in the absence of emissions standards (EPA, 2011d).
Response: See the response to EPA-HQ-OAR-2006-0790-2478-A2, excerpt 8.
Commenter Name: Neil Gormley
Commenter Affiliation: Earthjustice et al.
Document Control Number: EPA-HQ-OAR-2006-0790-2473-A2
Comment Excerpt Number: 8
Comment: The EPA has opted to promulgate work practice standards in lieu of emissions limits for periods of startup and shutdown. Section 112(h)(1) allows the Agency to do so only if it is "not feasible to prescribe or enforce an emission standard." 42 U.S.C. §7412(h)(1). Section 112(h)(2) then defines that phrase, in relevant part, to mean that "the application of measurement methodology to a particular class of sources is not practicable due to technological or economic limitations." 42 U.S.C. §7412(h)(2) (emphasis added). The EPA has not shown that it is impracticable for sources to monitor emissions during startup and shutdown. The EPA reasons that periods of startup and shutdown are too short to permit monitoring. But the EPA has not determined the typical duration of startup and shutdown for these units. Nor does the EPA's definition of startup and shutdown require that these periods be limited to any particular length of time. It is therefore arbitrary for the EPA to conclude that enforcement of emissions limitations during these periods is impracticable. The EPA must, at a minimum, determine for which units emissions monitoring during these periods is truly impracticable and limit the work practice standard to those units.
Response: As stated in the preamble for the proposed reconsideration of final rule, dated December 23, 2011, we are not obligated to respond on the merits to any comments addressing aspects of the final rule beyond the topics for which comments were requested. This comment is not on an issue reopened by the December 23, 2011 FR notice and is outside the scope of the current reconsideration.
Recordkeeping and Reporting Requirements: Energy Assessment Report
Commenter Name: Timothy Serie
Commenter Affiliation: American Coatings Association (ACA)
Document Control Number: EPA-HQ-OAR-2006-0790-2437-A1
Comment Excerpt Number: 15
Comment: ACA generally supports the following proposed changes to the Area Source Boiler Rule:
EPA clarification that the assessment does not need to be submitted to the EPA but may be kept onsite.
Response: The EPA thanks the commenter for their support.
Commenter Name: Robert D. Bessette
Commenter Affiliation: Council of Industrial Boiler Owners (CIBO)
Document Control Number: EPA-HQ-OAR-2006-0790-2443-A1
Comment Excerpt Number: 48
Comment: CIBO supports protecting CBI to the fullest extent allowed. As CIBO stated in its Petition for Reconsideration of the final Area Source Boiler Rule, the EPA should provide CBI protection for area sources as it does for major sources.
Submission of energy assessments is not required under the final rule. CBI is equally an issue for companies operating area source boilers as it is for major source boilers and process heaters. As such, a similar approach in both rules is justified.
Response: The EPA thanks the commenter for their support and additional justification.
Commenter Name: Robert D. Bessette
Commenter Affiliation: Council of Industrial Boiler Owners (CIBO)
Document Control Number: EPA-HQ-OAR-2006-0790-2443-A1
Comment Excerpt Number: 50
Comment: The information collected to comply with the energy assessment requirement is not "emissions data." 40 CFR §2.301(e). It is not "necessary" to determine emissions emitted by a source. Id. Rather, the energy assessment includes:
   * An evaluation of operating characteristics of the facility, specifications of energy using systems, operating and maintenance procedures, and unusual operating constraints;
   * An inventory of major energy consuming systems;
   * A review of available architectural and engineering plans, facility operation and maintenance procedures and logs, and fuel usage;
   * A review of the facility's energy management practices and recommendations for improvements;
   * A list of major energy conservation measures and their energy savings potential;
   * A comprehensive report detailing the ways to improve efficiency, the cost of specific improvements, benefits, and the time frame for recouping those investments.
76 FR 80549.
The foregoing information is commercially valuable because its release would potentially provide competitors with a window into the reporter's current operations, operating costs, and expansion plans. For the EPA to require the public disclosure of information of this nature (including engineering plans or the costs of energy savings projects), ignores the competitiveness implications of such disclosure. A company that develops a method to significantly reduce its energy costs  -  whether through improved maintenance practices or new projects - will not want its competitors to be aware of such proprietary information. Similarly, that company would not want to make its competitors aware of any operating constraints that might highlight weaknesses within a facility. If energy assessments are made publically available, competitors that took a minimalist approach in conducting their own energy assessments could benefit from the disclosures of others without incurring the time and expense to independently develop those plans. See Webb v. Dep't of Health & Human Serv., 696 F.2d 101, 103 (D.C. Cir. 1982). As a result, reporters that prepare more comprehensive and detailed energy assessments would suffer irreparable harm. The EPA is not authorized under the CAA or its implementing regulations to cause companies such injuries by mandating the disclosure of proprietary information. 42 U.S.C. §7414(c); 40 C.F.R. §2.301(b)(i).
The lapse of time would not diminish the sensitivity of disclosing this information. There is no time after which this information could be released that would avoid these potential competitive harms. Given these concerns, it would not be appropriate to impose a time limit on the confidentiality of the energy assessment information.
Response: The EPA agrees with the commenter that information in an energy assessment may contain sensitive information. The requirement at 40 CFR 63.11225(c) is being amended to remove the requirement for submitting, upon request, the energy assessment.
Commenter Name: Robert D. Bessette
Commenter Affiliation: Council of Industrial Boiler Owners (CIBO)
Document Control Number: EPA-HQ-OAR-2006-0790-2443-A1
Comment Excerpt Number: 49
Comment: The EPA does have broad authority under §114 of the CAA to request information from sources. However, the EPA cannot circumvent the procedural requirements that apply to information requests by bootstrapping an information request to an unrelated rule. Here, the EPA is exercising its authority under §112. See, e.g., 76 FR 80533-34. As the EPA acknowledges, §112 directs the Agency "to develop NESHAP for area sources and which require existing and new major sources to control emissions of HAP using MACT based standards." Id. An energy assessment is not an emission standard; therefore, if the EPA would like to collect this information for policy purposes or to inform other rulemaking efforts, it must comply with the procedural requirements to issue a §114 request.
To issue a valid §114 request, the EPA must comply with the Paperwork Reduction Act (PRA), which requires that the Agency receive approval from OMB before issuing similar §114 requests to ten (10) or more respondents collecting substantially similar information in any 12-month period. 5 CFR §1320.3(c). The OMB's approval is in the form of an Information Collection Request (ICR), which must go through public notice and comment.
Response: See the response to EPA-HQ-OAR-2006-0790-2443-A1, excerpt 50.
Commenter Name: Robert D. Bessette
Commenter Affiliation: Council of Industrial Boiler Owners (CIBO)
Document Control Number: EPA-HQ-OAR-2006-0790-2443-A1
Comment Excerpt Number: 51
Comment: CIBO objects to requiring sources to submit their energy assessments even if they are afforded CBI status because those protections are not necessarily complete or permanent. Such protections are insufficient because the EPA CBI determinations are subject to reevaluation. 40 CFR §2.205(h). The EPA has the discretion to modify prior CBI determinations and conclude that CBI is no longer entitled to confidential treatment because of a change in applicable law or newly discovered or changed facts. Id.
For the foregoing reasons, entities should only be required to submit a certification that the energy assessment was conducted.
Response: See the response to EPA-HQ-OAR-2006-0790-2443-A1, excerpt 50.
Commenter Name: Robert D. Bessette
Commenter Affiliation: Council of Industrial Boiler Owners (CIBO)
Document Control Number: EPA-HQ-OAR-2006-0790-2443-A2
Comment Excerpt Number: 9
Comment: It appears that in the final Area Source Boiler Rule, the EPA requires submission of the energy assessment report only upon request. This approach is contrary to the approach taken in the final Major Source Boiler Rule, where §63.7530(e) provides: [y]ou must include with the Notification of Compliance Status a signed certification that the energy assessment was completed according to Table 3 to this subpart and is an accurate depiction of your facility. (76 FR 15675.)  Considering the express text of the final regulations, submission of energy assessment reports is not required under the final Boiler rule. CBI is equally an issue for companies operating area source boilers as it is for major source boilers and process heaters. As such, a similar approach in both rules is justified. The EPA has provided no justification for requiring submission of the energy assessment reports for area sources while not requiring their submission for major sources. From a review of its response to comments it appears it was the EPA's intention to treat energy assessment reports for area sources similarly to their treatment for major sources. Specifically, in the Response to Comments Document, Vol.2, p.461, the EPA states:
      In the final rule, the energy assessment is not required to be submitted to EPA or the permitting agency. The final rule requires that the permitting agency be notified that the energy assessment has been conducted according to the requirement in the final rule. The facility is required to keep records that the work practices and management practices were complied with.
It appears that the EPA did not fully incorporate its intentions with regard to the treatment of CBI in the final Area Source Boiler Rule. Considering this, CIBO recommends that the EPA reconsider revising the text of §63.11241(c) to read as follows: "If you own or operate an existing affected boiler with a heat input capacity of 10 million Btu per hour or greater, you must submit a signed certification in the Notification of Compliance Status report that an energy assessment  of the boiler and its energy use systems was completed  according to Table 2 of this subpart and is an accurate depiction of your facility and submit, upon request, the energy assessment report.
Response: See the response to EPA-HQ-OAR-2006-0790-2443-A1, excerpt 50.
Recordkeeping and Reporting Requirements: Out of Scope
Commenter Name: Grif Bond
Commenter Affiliation: Environmental, Health & Safety Communications Panel (EHSCP)
Document Control Number: EPA-HQ-OAR-2006-0790-2432-A1
Comment Excerpt Number: 5
Comment: In addition, the EPA has proposed to amend 40 CFR 63.11225 (d) to allow records to be maintained at a central location provided they are readily accessible by computer or other means. We believe that this makes far more sense than requiring records to be maintained onsite. This is more cost-effective and we believe will allow for better records management. The EHSCP strongly supports the EPA's efforts to update record retention requirements to be consistent with current technology and allow the use of electronic document management thus providing regulated entities the flexibility to choose the record retention approach that is most appropriate for their operational and business conditions.
Response: The EPA thanks the commenter for their support and additional justification.
 Commenter Name: Barbara Patton
Commenter Affiliation: AT&T Services, Inc.
Document Control Number: EPA-HQ-OAR-2006-0790-2436-A1
Comment Excerpt Number: 6
Comment: The EPA has proposed to amend 40 CFR 63.11225(d) to allow records to be maintained at a central location provided they are readily accessible by computer or other means.  We believe that this makes far more sense than requiring records to be maintained on site. This is more cost-effective and we believe will allow for better records management. The EHSCP strongly supports the EPA's efforts to update record retention requirements to be consistent with current technology and allow the use of electronic document management thus providing regulated entities the flexibility to choose the record retention approach that is most appropriate for their operational and business conditions.
Response: The EPA thanks the commenter for their response and additional justification.
Commenter Name: Arthur Marin
Commenter Affiliation: Northeast States for Coordinated Air Use Management (NESCAUM)
Document Control Number: EPA-HQ-OAR-2006-0790-2454-A1
Comment Excerpt Number: 6
Comment: NESCAUM recommends that the EPA insert language requiring sources asserting exemptions from the Area and Major Source Boiler Rules to maintain records to support their exemption determination.
Response: As stated in the preamble for the proposed reconsideration of final rule, dated December 23, 2011, we are not obligated to respond on the merits to any comments addressing aspects of the final rule beyond the topics for which comments were requested. This comment is not on an issue reopened by the December 23, 2011 FR notice and is outside the scope of the current reconsideration.
Commenter Name: Grif Bond
Commenter Affiliation: Environmental, Health & Safety Communications Panel
Document Control Number: EPA-HQ-OAR-2006-0790-2432-A1
Comment Excerpt Number: 4
Comment: The EPA has proposed to amend 40 CFR 63.11225 (c)(2) to specify that records of fuel usage and type are only required for boilers that are subject to numerical emissions limits. Requiring fuel records for units that are not subject to emissions limits would result in unnecessary administrative burdens without any corresponding environmental benefit. Therefore the EHSCP supports this proposal.
Response: The EPA thanks the commenter for their support and additional justification.
Commenter Name: Barbara Patton
Commenter Affiliation: AT&T Services, Inc.
Document Control Number: EPA-HQ-OAR-2006-0790-2436-A1
Comment Excerpt Number: 5
Comment: The EPA has proposed to amend 40 CFR 63.11225(c)(2) to specify that records of fuel usage and type are only required for boilers that are subject to numerical emissions limits. Requiring fuel records for units that are not subject to emissions limits would result in unnecessary administrative burdens without any corresponding environmental benefit. Therefore the EHSCP supports this proposal.
Response: The EPA thanks the commenter for their support and additional justification.
Commenter Name: Barbara Patton
Commenter Affiliation: AT&T Services, Inc.
Document Control Number: EPA-HQ-OAR-2006-0790-2436-A1
Comment Excerpt Number: 4
Comment: The EPA is proposing to amend 40 CFR 63.11223(b)(6)(iii) to specify that the type and amount of fuel need only be included on the biennial report if the unit was physically and legally capable of using more than one type of fuel during that period. This clarification serves to resolve some of the confusion posed by the 2011 final rule. Therefore, the EHSCP supports this proposed clarification.
Response: The EPA thanks the commenter for their comment and support.
Commenter Name: John V. Corra
Commenter Affiliation: Wyoming Department of Environmental Quality (Wyoming DEQ)
Document Control Number: EPA-HQ-OAR-2006-0790-2420-A1
Comment Excerpt Number: 1
Comment: Wyoming DEQ has concerns regarding the overlap of requirements in the rules with those in the General Provisions, particularly recordkeeping and reporting. Complying with both the General Provisions and the requirements in the rule causes confusion for both the state and industry. This confusion often results in small companies, with limited resources, having to hire a third party contractor to ensure compliance. Wyoming DEQ recommends that the EPA add language that waives the recordkeeping and reporting general provisions when there are very specific, detailed requirements for recordkeeping and reporting within the rule.
Response: As stated in the preamble for the proposed reconsideration of final rule, dated December 23, 2011, we are not obligated to respond on the merits to any comments addressing aspects of the final rule beyond the topics for which comments were requested. This comment is not on an issue reopened by the December 23, 2011 FR notice and is outside the scope of the current reconsideration. Nevertheless, we note that Table 8 of Subpart JJJJJJ clarifies the relationship to the General Provisions and specifies where Subpart JJJJJJ requirements apply in lieu of specific General Provision requirements, and that parties had an opportunity to comment on this issue in 2010.
Compliance: Initial compliance schedule for existing boilers subject to tune-ups
Commenter Name: Alicia Meads
Commenter Affiliation: National Association of Manufacturers (NAM)
Document Control Number: EPA-HQ-OAR-2006-0790-2446-A1
Comment Excerpt Number: 11
Comment: The EPA is proposing to amend 40 CFR 63.11196 to specify that all existing boilers subject to the tune-up requirement would have 2 years (by March 21, 2013) in which to demonstrate initial compliance, instead of 1 year to demonstrate initial compliance. The EPA requested comment on whether the initial compliance period for the tune-up requirement should be extended to 3 years. (76 FR 80535.)
For many of the same reasons discussed above, the NAM recommends that this compliance period should be extended to 3 years. See 76 FR 15579, Table 4 (identifying 183,000 existing area source boilers). Combining a potential shortage of environmental engineers with the long range planning required for testing and work at facilities, it will be difficult to schedule and complete the testing needed to comply with the tune-up requirements in time to meet a 2 year deadline, particularly for facilities with multiple boilers.
Response: The EPA acknowledges this commenter's concerns regarding the time allowed for existing boilers subject to the tune-up requirement to demonstrate initial compliance. Numerous other commenters also recommended that the initial compliance period should be extended to 3 years. In the December 23, 2011 proposed reconsideration of final rule action, we specifically requested comment on whether the initial compliance period for the tune-up requirement should be extended to 3 years. The EPA has determined that it is appropriate to provide a 3-year initial compliance period. In the final rule, the EPA is amending 40 CFR 63.11196 to specify that all existing boilers subject to the tune-up requirement will have 3 years (by March 21, 2014) in which to demonstrate initial compliance, instead of 1 year as specified in the 2011 final rule (76 FR 15554, March 21, 2011) or 2 years as specified in the proposed reconsideration of final rule action (76 FR 80532, December 23, 2011). The extension to the initial compliance period should alleviate the industry's concerns regarding having the time to schedule and complete the tune-ups, especially for facilities with numerous affected boilers.
--------------------------------------------------------------------------------
Commenter Name: Lorraine Gershman
Commenter Affiliation: American Chemistry Council (ACC)
Document Control Number: EPA-HQ-OAR-2006-0790-2444-A1
Comment Excerpt Number: 4
Comment: Because the EPA has also proposed revisions to the NHSM Rule,[5] many sources are uncertain as to how their secondary materials will be classified, and therefore whether the combustion unit will be regulated under the boiler area source rule or the CISWI Rule.[6] Since resolving this issue will effectively amend the work practice standard by revising the scope of its applicability, ACC believes that there will be a substantial number of affected units for which the waste/fuel determination will need to be made and the work practice requirements completed. ACC urges the EPA to set the compliance deadline at 3 years from March 21, 2011, the promulgation date of the Final Rule.
[5] 76 FR 80452
[6] 76 FR 80452
Response: See the response to EPA-HQ-OAR-2006-0790-2446-A1, excerpt 11.
Commenter Name: S. William Becker
Commenter Affiliation: National Association of Clean Air Agencies (NACAA)
Document Control Number: EPA-HQ-OAR-2006-0790-2455-A1
Comment Excerpt Number: 35
Comment: The EPA has also requested public comment on whether the compliance date for boiler tune-ups for area sources should be extended to March 2013, as the EPA is currently proposing, or if the compliance date should be extended to March 2014. To be consistent with the initial compliance date for boiler tune-ups at major sources, the EPA should extended the compliance date for area sources to March 2014. Although the tune-up requirements do not appear overly burdensome, affected sources will still need sufficient time to determine what needs to be included in the tune-up protocol, when to schedule the initial tune-up, and to develop the reporting protocol that needs to be submitted to the EPA or to the delegated state or local agency. Further, there appears to be no reason why the smaller area sources should not have the full 3 years to comply that is currently afforded to major sources. Extending the compliance date for tune-ups would also allow extra time for states to identify and provide outreach and compliance assistance to area source facilities. This assistance is very important, because many of these sources have had little prior experience in understanding and complying with complex air regulations. The EPA is not providing states additional funding to implement these new standards. Having sufficient time before the compliance deadline to assistance affected area sources will help ease the implementation burden for states and will almost certainly minimize violations after the compliance date.
Response: See the response to EPA-HQ-OAR-2006-0790-2446-A1, excerpt 11.
Commenter Name: Paul Noe
Commenter Affiliation: American Forest & Paper Association (AF&PA) et al.
Document Control Number: EPA-HQ-OAR-2006-0790-2426-A1
Comment Excerpt Number: 5
Comment: We agree with extending the compliance date for the initial tune-up for the reasons outlined below. The EPA should also clarify that §63.11223(b)(7), which provides the option to postpone a tune-up for non-operating units until up to 1 week following startup, applies to the required initial tune-up as well as the required ongoing tune-ups.
Response: See the response to EPA-HQ-OAR-2006-0790-2446-A1, excerpt 11, regarding the initial compliance date for existing boilers subject to the tune-up requirement.
The EPA does not believe it is necessary to clarify the regulatory language regarding postponement of the initial tune-up for non-operating boilers. Paragraphs (a) and (b) of 40 CFR 63.11214 specify that boilers subject to the tune-up requirements must conduct a performance tune-up according to 40 CFR 63.11223(b). By specifying 40 CFR 63.11223(b) in its entirety, paragraph (b)(7) is included.
Commenter Name: Paul Noe
Commenter Affiliation: American Forest & Paper Association (AF&PA) et al.
Document Control Number: EPA-HQ-OAR-2006-0790-2426-A1
Comment Excerpt Number: 7
Comment: We support the EPA's proposal to extend the initial compliance period past 1 year. The EPA should extend the deadline for the initial tune-up to 3 years from promulgation of the March 2011 final rule in order to allow companies adequate time to complete the initial tune-ups and also to harmonize rule compliance dates for existing sources. The EPA did not provide an opportunity to comment on the early initial tune-up deadline as it was not raised in the proposed rule nor did the Agency provide adequate justification in the March 2011 final rule for shortening the compliance time for units required to conduct a tune-up. As the EPA has noted, there are companies (especially those with many boilers or boilers that operate only on certain schedules) that will not be able to meet the 1 year compliance time.
The EPA estimated that there are 183,000 existing area source boilers. (76 FR 15579, Table 4.) Affected sources will have to develop procedures and train personnel or engage contractors for the tune-ups required by this rule. Sites will be required to set up recordkeeping practices and compliance assurance procedures to meet the requirements of this rule. For many companies, 1 year is not enough time to complete the initial tune-up and associated compliance activities.
Response: See the response to EPA-HQ-OAR-2006-0790-2446-A1, excerpt 11.
Commenter Name: Robert D. Bessette
Commenter Affiliation: Council of Industrial Boiler Owners (CIBO)
Document Control Number: EPA-HQ-OAR-2006-0790-2443-A1
Comment Excerpt Number: 5
Comment: We support the EPA's proposal to extend the initial compliance period past 1 year. The EPA should extend the deadline for the initial tune-up to 3 years from promulgation of the March 2011 final rule in order to allow companies adequate time to complete the initial tune-ups and also to harmonize rule compliance dates for existing sources. The EPA did not provide an opportunity to comment on the early initial tune-up deadline as it was not raised in the proposed rule nor did the Agency provide adequate justification in the March 2011 final rule for shortening the compliance time for units required to conduct a tune-up. As the EPA has noted, there are companies (especially those with many boilers or boilers that operate only on certain schedules) that will not be able to meet the 1 year compliance time. (76 FR 80535.)
Response: See the response to EPA-HQ-OAR-2006-0790-2446-A1, excerpt 11.
Commenter Name: Lorraine Gershman
Commenter Affiliation: American Chemistry Council (ACC)
Document Control Number: EPA-HQ-OAR-2006-0790-2444-A1
Comment Excerpt Number: 3
Comment: ACC recommends that the EPA extend the initial tune-up compliance deadline to 3 years from March 21, 2011, the date of promulgation of the final rule. This extension would allow companies sufficient time to complete the initial tune-ups and to harmonize rule compliance dates for existing sources. The EPA did not provide adequate justification in the final rule for shortening the compliance time that it had originally proposed for units requiring a tune-up. As the EPA has noted in this reconsideration proposal, there are companies (especially those with many boilers or boilers that operate only on certain schedules) that will not be able to meet the 1 year compliance time.
The EPA estimated that there are 183,000 existing area source boilers. (76 FR 15579, Table 4.) Affected sources will have to develop procedures and train personnel or engage contractors for the tune-ups required by this rule, and will also be required to set up recordkeeping practices and compliance assurance. For many companies, one additional year would not be enough time to complete these initial compliance requirements.

Response: See the response to EPA-HQ-OAR-2006-0790-2446-A1, excerpt 11.
Commenter Name: Michael L. Krancer
Commenter Affiliation: Pennsylvania Department of Environmental Protection (PA DEP)
Document Control Number: EPA-HQ-OAR-2006-0790-2449-A1
Comment Excerpt Number: 4
Comment: Section 112(i)(3)(A) of the CAA requires existing sources to demonstrate compliance a expeditiously as practicable but no later than 3 years after the effective date of such standard. While PA DEP believes that a 2-year period for the initial compliance demonstration for the tune up requirement should provide adequate time to complete tune-ups on existing sources, we believe that a 3-year compliance deadline for the tune-up requirements would be consistent with section §112(i) of the CAA.
Response: See the response to EPA-HQ-OAR-2006-0790-2446-A1, excerpt 11.
Commenter Name: Barbara Patton
Commenter Affiliation: AT&T Services, Inc.
Document Control Number: EPA-HQ-OAR-2006-0790-2436-A1
Comment Excerpt Number: 2
Comment: The EPA specifically requested comment on whether the initial tune -  up compliance date should be extended to 3 years following the effective date of the 2011 rule. Extending the compliance date to 3 years would provide consistency with the time frames allowed for existing boilers subject to work practices under the Major Source Boiler Rule. This extension would further provide industry more flexibility in order to comply with the tune-up requirement. The EHSCP supports this further extension.
Response: See the response to EPA-HQ-OAR-2006-0790-2446-A1, excerpt 11.
Commenter Name: Robert D. Bessette
Commenter Affiliation: Council of Industrial Boiler Owners (CIBO)
Document Control Number: EPA-HQ-OAR-2006-0790-2443-A1
Comment Excerpt Number: 2
Comment: The original tune-up requirement could not have been completed within 1 year of the rule's promulgation by most area source facilities, and the 1-year deadline was therefore irrational. Many area sources are on the verge of not being able to meet that deadline for scheduling or fuel versus waste reasons identified below and will either shut down or face non-compliance actions despite the fact the EPA has proposed moving the deadline for valid reasons. There are also likely thousands of small sources that are not aware of the rule and its applicability to their units.
Response: See the response to EPA-HQ-OAR-2006-0790-2446-A1, excerpt 11.
Commenter Name: Robert D. Bessette
Commenter Affiliation: Council of Industrial Boiler Owners (CIBO)
Document Control Number: EPA-HQ-OAR-2006-0790-2443-A1
Comment Excerpt Number: 3
Comment: In the proposed reconsideration rule, the EPA proposes to allow 2 years for initial compliance, requiring the tune-up by March 21, 2013. (76 FR 80535.) The EPA also seeks comment on whether 3 years is more appropriate, requiring the tune-up by around March 2014. (76 FR 80535.)
The timing of initial compliance should be resolved in favor of providing sources with ample time to meet the requirements of the tune-up. The tune-up on its face requires a significant amount of lead time. It includes, for example, stack testing for CO and O2 per 40 CFR 63.11223(b)(5). The EPA estimated that there are 183,000 existing area source boilers (76 FR 15579, Table 4.) Affected sources will have to develop procedures and train personnel or engage contractors for the tune-ups required by this rule. Sites will be required to set up recordkeeping practices and compliance assurance procedures to meet the requirements of this rule. For many facilities, 1 year is not enough time to complete the initial tune-up and associated compliance activities, especially where a facility has multiple area sources on site.
Response: Response:See the response to EPA-HQ-OAR-2006-0790-2446-A1, excerpt 11.
Commenter Name: Robert D. Bessette
Commenter Affiliation: Council of Industrial Boiler Owners (CIBO)
Document Control Number: EPA-HQ-OAR-2006-0790-2443-A1
Comment Excerpt Number: 7
Comment: The proposed amended §63.11223(b)(5), which is applicable to both initial and continuous compliance demonstrations for work practices, requires that the tune-up be conducted "while burning the type of fuel that provided the majority of the heat input to the boiler over the 12 months prior to the tune-up." The facility also has to state in its Notification of Compliance Status that "No secondary materials that are solid waste were combusted in any affected unit." [§63.11225(a)(4)(iv)]. Each of these leads to a timing concern that supports the 3-year compliance timeline for the initial tune-up requirement.
Response: See the response to EPA-HQ-OAR-2006-0790-2446-A1, excerpt 11.
Commenter Name: Jessica Bridges
Commenter Affiliation: U.S. Clean Heat & Power Association (USCHPA)
Document Control Number: EPA-HQ-OAR-2006-0790-2451-A1
Comment Excerpt Number: 1
Comment: The EPA now proposes that all existing boilers subject to the tune-up requirement would have 2 years (by March 21, 2013) in which to demonstrate initial compliance. The EPA is requesting comment whether this should be extended to 3 years. Consistent with USCHPA's comments in the Major Source Docket filed today February 21, 2012 we support the extension to 3 years.
Response: See the response to EPA-HQ-OAR-2006-0790-2466-A1, excerpt 11.
Commenter Name: Grif Bond
Commenter Affiliation: Environmental, Health & Safety Communications Panel (EHSCP)
Document Control Number: EPA-HQ-OAR-2006-0790-2432-A1
Comment Excerpt Number: 1
Comment: The 3-year initial compliance date originally provided by the proposed rule would have allowed for staggering of the tune-ups over 3 years, while the final rule required initial tune-ups be conducted within 1 year of the effective date of the 2011 final rule. Performance of the initial tune-up within 1 year is simply not practical for industries that have a large number of affected or seasonal boilers. The EHSCP supports the EPA's proposal to extend the time frame allowed to complete these initial tune-ups.
Additionally, the EPA specifically requested comment on whether the initial tune -  up compliance date should be extended to 3 years following the effective date of the 2011 rule. Extending the compliance date to 3 years would provide consistency with the timeframes allowed for existing boilers subject to work practices under the Major Source Boiler Rule. This extension would further provide industry more flexibility in order to comply with the tune-up requirement. The EHSCP supports this further extension.
Response: See the response to EPA-HQ-OAR-2006-0790-2446-A1, excerpt 11.
Commenter Name: Barbara Patton
Commenter Affiliation: AT&T Services, Inc.
Document Control Number: EPA-HQ-OAR-2006-0790-2436-A1
Comment Excerpt Number: 1
Comment: As the EPA noted, the 3-year initial compliance date originally provided by the proposed rule would have allowed for staggering of the tune-ups  over 3 years, while the final rule required initial tune-ups be conducted within 1 year of the effective date of the 2011 final rule. Performance of the initial tune-up within 1 year is simply not practical for industries that have a large number of affected or seasonal boilers. The EHSCP supports the EPA's proposal to extend the time frame allowed to complete these initial tune-ups.
Response: See the response to EPA-HQ-OAR-2006-0790-2446-A1, excerpt 11.
Commenter Name: Michael G. Dowd
Commenter Affiliation: Virginia Department of Environmental Quality (VADEQ)
Document Control Number: EPA-HQ-OAR-2006-0790-2434-A1
Comment Excerpt Number: 3
Comment: VADEQ recommends that EPA allow the full 3 years originally provided in the proposed rule for initial compliance for tune-ups. Not only would the additional time allow facilities with many small boilers to schedule and complete the testing needed to comply with the tune-up requirements but would also give states additional time to provide outreach to facilities that may not be aware of the regulation.
Response: See the response to EPA-HQ-OAR-2006-0790-2446-A1, excerpt 11.
Commenter Name: Andrea Grant
Commenter Affiliation: Castle Oil Corporation
Document Control Number: EPA-HQ-OAR-2006-0790-2462-A2
Comment Excerpt Number: 7
Comment: Based on the foregoing, Castle Oil Corporation urges the EPA to adopt the following provisions:
Extend the time for initial compliance for those boilers subject to the tune-up management practice;
Response: See the response to EPA-HQ-OAR-2006-0790-2446-A1, excerpt 11.
Commenter Name: Renee Lesjak Bashel
Commenter Affiliation: National Steering Committee, Small Business Ombudsman and Small Business Environmental Assistance Programs (SBO/SBEAP)
Document Control Number: EPA-HQ-OAR-2006-0790-2459-A2
Comment Excerpt Number: 7
Comment: Extend initial compliance schedule through 2014 at a minimum.
While we support the EPA's proposal to extend the tune-up requirements from 1 year to 2 in the rule, we believe businesses will need more than 2 years. For the majority of area sources affected by this rule, this is their first experience with environmental regulations. As technical assistance providers, we will need sufficient time to identify and notify the affected sources. In addition, vendors capacity to meet the needs of all affected sources in both major and area source rules will be challenged in the space of only 1 or 2 years.
Response: See the response to EPA-HQ-OAR-2006-0790-2446-A1, excerpt 11.
Commenter Name: Heather Parent
Commenter Affiliation: State of Maine Department of Environmental Protection (Maine DEP)
Document Control Number: EPA-HQ-OAR-2006-0790-2470-A2
Comment Excerpt Number: 1
Comment: Maine DEP supports delaying the compliance date for this regulation until May 21, 2014. Maine DEP continues to receive several calls each month from sources just becoming aware of this regulation. Most Maine boiler owners have informed us they already perform tune-ups to maximize their units' efficiency during Maine's cold winters, but not all tune-up technicians perform tune-ups as prescribed in the proposed rule. Several boiler owners had their boilers tuned this summer, but under the proposed rule would be required to do another costly tune up to fit the EPA prescribed method.
Response: See the response to EPA-HQ-OAR-2006-0790-2446-A1, excerpt 11.
Commenter Name: Pamela F. Faggert
Commenter Affiliation: Dominion
Document Control Number: EPA-HQ-OAR-2006-0790-2424-A1
Comment Excerpt Number: 4
Comment: Extension of Deadline to Complete Initial Tune-ups
We support the EPA's proposed 1-year extension (from March 21, 2012 to March 21, 2013) to complete initial tune-ups for boilers and process heaters subject to work practice standards.
Response: The EPA thanks the commenter for their support. We would like to point out, however, that process heaters are not one of the categories of sources being regulated under this area source action.
Commenter Name: Russell A. Wozniak
Commenter Affiliation: Dow Chemical Company
Document Control Number: EPA-HQ-OAR-2006-0790-2423-A1
Comment Excerpt Number: 2
Comment: Dow supports the extension of the initial compliance date for existing boilers subject to tune-up requirements at least to March 21, 2013.
Dow supports the EPA's proposal to extend the compliance date for completing tune-ups for existing boilers to March 21, 2013. Dow would also support extending the deadline for the initial tune-up to 3 years from promulgation of the March 2011 final rule (March 21, 2014) in order to harmonize these dates to some degree with the Boiler MACT Rule, which allows 3 years to complete all of the required tune-ups. This additional time will be used by sites to secure resources to complete the tune-ups and to establish internal work practices and procedures to manage the repetitive task of conducting tune-ups in the future.
Response: The EPA thanks the commenter for their support and additional justification.
Commenter Name: Derek Grasso
Commenter Affiliation: Covanta Energy Corporation
Document Control Number: EPA-HQ-OAR-2006-0790-2430-A2
Comment Excerpt Number: 1
Comment: Covanta supports the proposed amendment to establish the initial tune-up compliance date as March 21, 2013. Tune-up of Covanta's boilers involves a facility outage, when the boiler is shut down for an extended period and required maintenance is conducted. These periods are scheduled months or even a year in advance and must be coordinated with the electric utility, fuel suppliers and maintenance contractors. Providing 2 years instead of 1 for the initial compliance period will allow Covanta to maintain its existing outage schedule and coordinate the required pre and post outage CO emissions testing.
Response: The EPA thanks the commenter for their support and additional justification.
Commenter Name: Timothy Serie
Commenter Affiliation: American Coatings Association (ACA)
Document Control Number: EPA-HQ-OAR-2006-0790-2437-A1
Comment Excerpt Number: 2
Comment: ACA generally supports the following proposed changes in the Area Source Boiler Rule:
Proposal to require an initial tune-up by March 21, 2014 and revision to the requirement for subsequent tune-ups only for oil-fired boilers equal to or less than 5 MMBtu/hr to tune-up once every 5 years; however, the EPA should extend the deadline for the initial tune-up to 3 years from promulgation of the March 2011 final rule in order to allow companies adequate time to complete the initial tune-ups and also to harmonize rule compliance dates for existing sources
Response: The EPA thanks the commenter for their support.
Commenter Name: Donald R. Schregardus
Commenter Affiliation: Deputy Assistant Secretary of the Navy, Clean Air Act Services Steering Committee, Department of Defense (DOD)
Document Control Number: EPA-HQ-OAR-2006-0790-2418
Comment Excerpt Number: 2
Comment: Alternatively, or in conjunction with a public statement regarding a deadline extension, the EPA could issue an enforcement discretion guidance letter publicly stating that it will not enforce against facilities missing the March 21, 2012, tune-up deadline while it is reconsidering the rule.
The EPA recently issued a comparable letter regarding its reconsideration of the NESHAP for Major Source Boilers and Process Heaters and NSPS/Emission Guidelines for CISWI. A similar letter regarding the NESHAP for Area Source Boilers would effectively alleviate much of the concern discussed above.
Recommendation: The EPA should extend the deadline for initial tune-ups for existing area source boilers at least 1 year from March 21, 2012, to March 21, 2013 and, as soon as possible, either publicly confirm that the area source rule will be stayed for 90 days if the deadline is not extended before the March 21, 2012, or, issue an enforcement discretion guidance letter assuring that the EPA will not enforce the March 21, 2012 deadline pending reconsideration.
Response: As the EPA's response to EPA-HQ-OAR-2006-0790-2446-A1, excerpt 11, explains, we are finalizing an initial compliance date of March 21, 2014 for existing boilers subject to the tune-up requirement.
40 CFR 63.11196(a)(1) of the March 21, 2011, final rule (76 FR 15554) requires that owners and operators of existing affected boilers subject to the tune-up requirement complete the initial boiler tune-up by March 21, 2012. In addition, 40 CFR 63.11225(a)(4) requires that owners and operators of existing affected boilers subject to the tune-up requirement submit their NOCS no later than 120 days after the applicable compliance date specified in 40 CFR 63.11196. That means that those owners and operators were required to submit their NOCS by July 19, 2012. The Notification must include, among other information, a certification that states "This facility complies with the requirements in §63.11214 to conduct an initial tune-up of the boiler."
On March 13, 2012, the EPA issued a No Action Assurance (NAA) to all owners and/or operators of existing industrial boilers and commercial and institutional boilers at area sources of HAP emissions stating that we would not enforce the requirement to conduct an initial tune-up by March 21, 2012. The NAA was primarily based upon the EPA's concern that sources were reporting a shortage of qualified individuals to prepare boilers for tune-ups and then conduct those tune-ups by the regulatory deadline, as well as upon the uncertainty in the regulated community resulting from the pending reconsideration of the Area Source Boiler Rule. The March 13, 2012, NAA states that it remains in effect until either (1) 11:59 PM EDT, October 1, 2012, or (2) the effective date of a final rule addressing the proposed reconsideration of the Area Source Boiler Rule, whichever occurs earlier.
As the July 19, 2012, NOCS deadline approached, a final rule addressing the proposed reconsideration of the Area Source Boiler Rule had not been issued, and thus the NAA continued to remain in effect. Nothing that the EPA learned since the issuance of the original NAA letter led us to question our original concerns about the feasibility of all sources timely completing an initial tune-up. Further, sources that did not complete a tune-up could not certify that they conducted one. Thus, on July 18, 2012, the EPA extended the NAA for sources required to complete an initial tune-up by March 21, 2012, to also include the deadline for submitting the NOCS regarding the initial tune-up. In addition, given that no final rule addressing the proposed reconsideration of the Area Source Boiler Rule had been issued as of July 18, 2012, the pending reconsideration continued to create uncertainty in the regulated community. Thus, the NAA letter also amended the expiration date of the March 13, 2012, NAA, such that the NAA would remain in effect until either (1) 11:59 PM EST, December 31, 2012, or (2) the effective date of a final rule addressing the proposed reconsideration of the Area Source Boiler Rule, whichever occurs earlier.
This final rule addressing the proposed reconsideration revises the compliance date for existing affected boilers subject to a tune-up from March 21, 2012, to March 21, 2014. The July 19, 2012, deadline for submitting the NOCS regarding the initial tune-up is reset to July 19, 2014, as a result of revising the compliance date for existing affected boilers subject to a tune-up to March 21, 2014. Owners or operators that had not yet conducted their boiler tune-up, but submitted a NOCS by July 19, 2012, simply to notify the EPA that the tune-up had not been completed, will need to submit a revised NOCS after their boiler tune-up is conducted. The NAA letters can be found at: http://www.epa.gov/ttn/atw/boiler/area_source_nna_2012-03-13.pdf.
Commenter Name: Donald R. Schregardus
Commenter Affiliation: Deputy Assistant Secretary of the Navy, Clean Air Act Services Steering Committee, Department of Defense (DOD)
Document Control Number: EPA-HQ-OAR-2006-0790-2418
Comment Excerpt Number: 1
Comment: Some military facilities already perform annual boiler tune-ups. However, at some facilities, the last tune-up may not fully conform to the documentation requirements of the final rule because the information was not yet available to those who performed the tune-ups. The proposed extension would save time and resources at these facilities by allowing them to retain their current tune-up schedule and prevent them from performing an additional off-cycle tune-up.
Other military facilities may not have performed a tune-up within the last year and will need to perform a tune-up by March 21, 2012.
Without assurance that the deadline will be extended or that the Area Source Boiler Rule will be temporarily stayed, many of these facilities will perform tune-ups only to find it is no longer required. The preamble to the proposed amendments states: "If the Agency has not taken final action on the initial compliance date for tune-ups prior to the date (March 21, 2012) for initial compliance, we could stay the effectiveness of the rule for 90 days, as allowed under CAA section 307(d)(7)(B), so that the Agency could complete reconsideration." The use of the word "could" does not assure facilities that the March 21, 2012, deadline will not be enforced in the event that the EPA does not complete its reconsideration before that time. Many facilities cannot wait until March to see if the rule is amended or stayed. Due to the complexities of federal fiscal requirements, some military facilities need to make financial arrangements well in advance of this deadline to ensure the tune-ups are completed. The EPA could resolve this regulatory uncertainty by publicly stating that they will stay the area source rule for 90 days if the deadline is not extended before March 21, 2012.
Response: See the response to EPA-HQ-OAR-2006-0790-2418, excerpt 2.
Commenter Name: Stephen E. Woock
Commenter Affiliation: Weyerhaeuser
Document Control Number: EPA-HQ-OAR-2006-0790-2452-A1
Comment Excerpt Number: 2