[Federal Register Volume 85, Number 107 (Wednesday, June 3, 2020)]
[Rules and Regulations]
[Pages 34326-34351]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-05909]
[[Page 34325]]
Vol. 85
Wednesday,
No. 107
June 3, 2020
Part III
Environmental Protection Agency
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40 CFR Part 63
National Emission Standards for Hazardous Air Pollutants: Engine Test
Cells/Stands Residual Risk and Technology Review; Final Rule
Federal Register / Vol. 85, No. 107 / Wednesday, June 3, 2020 / Rules
and Regulations
[[Page 34326]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 63
[EPA-HQ-OAR-2018-0753; FRL-10006-68-OAR]
RIN 2060-AT01
National Emission Standards for Hazardous Air Pollutants: Engine
Test Cells/Stands Residual Risk and Technology Review
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: This action finalizes the residual risk and technology review
(RTR) conducted for the Engine Test Cells/Stands source category
regulated under national emission standards for hazardous air
pollutants (NESHAP). In addition, we are taking final action on
amendments to the Engine Test Cells/Stands NESHAP addressing periods of
startup, shutdown, and malfunction (SSM). These final amendments also
include provisions regarding electronic reporting, as well as
clarifying and technical corrections. These final amendments will
result in improved compliance and implementation of the rule.
DATES: This final rule is effective on June 3, 2020. The incorporation
by reference (IBR) of certain publications listed in the rule was
approved by the Director of the Federal Register as of May 27, 2003.
ADDRESSES: The U.S. Environmental Protection Agency (EPA) has
established a docket for this action under Docket ID No. EPA-HQ-OAR-
2018-0753. All documents in the docket are listed on the https://www.regulations.gov/ website. Although listed, some information is not
publicly available, e.g., Confidential Business Information (CBI) or
other information whose disclosure is restricted by statute. Certain
other material, such as copyrighted material, is not placed on the
internet and will be publicly available only in hard copy form.
Publicly available docket materials are available either electronically
through https://www.regulations.gov/, or in hard copy at the EPA Docket
Center, WJC West Building, Room Number 3334, 1301 Constitution Ave. NW,
Washington, DC. The Public Reading Room hours of operation are 8:30
a.m. to 4:30 p.m. Eastern Standard Time (EST), Monday through Friday.
The telephone number for the Public Reading Room is (202) 566-1744, and
the telephone number for the EPA Docket Center is (202) 566-1742.
FOR FURTHER INFORMATION CONTACT: For questions about this final action,
contact Christopher Werner, Sector Policies and Programs Division
(D243-01), Office of Air Quality Planning and Standards, U.S.
Environmental Protection Agency, Research Triangle Park, North Carolina
27711; telephone number: (919) 541-5133; fax number: (919) 541-4991;
and email address: [email protected]. For specific information
regarding the risk modeling methodology, contact Ted Palma, Health and
Environmental Impacts Division (C539-02), Office of Air Quality
Planning and Standards, U.S. Environmental Protection Agency, Research
Triangle Park, North Carolina 27711; telephone number: (919) 541-5470;
fax number: (919) 541-0840; and email address: [email protected]. For
information about the applicability of the NESHAP to a particular
entity, contact Sara Ayres, Office of Enforcement and Compliance
Assurance, U.S. Environmental Protection Agency, U.S. EPA Region 5
(Mail Code R-19J), 77 West Jackson Boulevard, Chicago, Illinois 60604;
telephone number: (312) 353-6266; and email address:
[email protected].
SUPPLEMENTARY INFORMATION:
Preamble acronyms and abbreviations. We use multiple acronyms and
terms in this preamble. While this list may not be exhaustive, to ease
the reading of this preamble and for reference purposes, the EPA
defines the following terms and acronyms here:
AAP American Academy of Pediatrics
AEGL acute exposure guideline level
APA Administrative Procedure Act
ATSDR Agency for Toxic Substances and Disease Registry
CAA Clean Air Act
CalEPA California EPA
CBI Confidential Business Information
CDC Centers for Disease Control and Prevention
CDX Central Data Exchange
CEDRI Compliance and Emissions Data Reporting Interface
CFR Code of Federal Regulations
CHIEF Clearinghouse for Inventories and Emissions Factors
CHPAC Children's Health Protection Advisory Committee
CO carbon monoxide
EPA Environmental Protection Agency
ERPG Emergency Response Planning Guideline
ERT Electronic Reporting Tool
HAP hazardous air pollutant(s)
HCl hydrochloric acid
HEM-3 Human Exposure Model, Version 1.1.0
HF hydrogen fluoride
HI hazard index
HQ hazard quotient
IARC International Agency for Research on Cancer
IRIS Integrated Risk Information System
km kilometer
MACT maximum achievable control technology
MIR maximum individual risk
NAAQS National Ambient Air Quality Standards
NAICS North American Industry Classification System
NESHAP national emission standards for hazardous air pollutants
OAQPS Office of Air Quality Planning and Standards
OHEA Office of Health and Environmental Assessment
OMB Office of Management and Budget
PB-HAP hazardous air pollutants known to be persistent and bio-
accumulative in the environment
POM polycyclic organic matter
REL reference exposure level
RFA Regulatory Flexibility Act
RfC reference concentration
RfD reference dose
RTR residual risk and technology review
SSM startup, shutdown, and malfunction
THC total hydrocarbons
TOSHI target organ-specific hazard index
tpy tons per year
[micro]g/m\3\ microgram per cubic meter
UMRA Unfunded Mandates Reform Act
VOC volatile organic compounds
Background information. On May 8, 2019, the EPA proposed revisions
to the Engine Test Cells/Stands NESHAP based on our RTR. In this
action, we are finalizing decisions and revisions for the rule. We
summarize some of the more significant public comments we timely
received regarding the proposed rule and provide our responses in this
preamble. A summary of all other public comments on the proposal and
the EPA's responses to those comments is available in the document
titled Summary of Public Comments and Responses for the Residual Risk
and Technology Review for Engine Test Cells/Stands, which is available
in the docket for this action (Docket ID No. EPA-HQ-OAR-2018-0753). A
``track changes'' version of the regulatory language that incorporates
the changes in this action is available in the docket.
Organization of this document. The information in this preamble is
organized as follows:
I. General Information
A. Does this action apply to me?
B. Where can I get a copy of this document and other related
information?
C. Judicial Review and Administrative Reconsideration
II. Background
A. What is the statutory authority for this action?
B. What is the Engine Test Cells/Stands source category and how
does the NESHAP regulate HAP emissions from the source category?
[[Page 34327]]
C. What changes did we propose for the Engine Test Cells/Stands
source category in our May 8, 2019, proposal?
III. What is included in this final rule?
A. What are the final rule amendments based on the risk review
for the Engine Test Cells/Stands source category?
B. What are the final rule amendments based on the technology
review for the Engine Test Cells/Stands source category?
C. What are the final rule amendments addressing emissions
during periods of SSM?
D. What other changes have been made to the NESHAP?
E. What are the effective and compliance dates of the standards?
IV. What is the rationale for our final decisions and amendments for
the Engine Test Cells/Stands source category?
A. Residual Risk Review for the Engine Test Cells/Stands Source
Category
B. Technology Review for the Engine Test Cells/Stands Source
Category
C. SSM for the Engine Test Cells/Stands Source Category
D. Electronic Reporting Requirements for the Engine Test Cells/
Stands Source Category
E. Technical and Editorial Changes for the Engine Test Cells/
Stands Source Category
F. Additional Issue on Which Comment Was Requested: Prior
Approval for an Aspect of Performance Testing
V. Summary of Cost, Environmental, and Economic Impacts and
Additional Analyses Conducted
A. What are the affected facilities?
B. What are the air quality impacts?
C. What are the cost impacts?
D. What are the economic impacts?
E. What are the benefits?
F. What analysis of environmental justice did we conduct?
G. What analysis of children's environmental health did we
conduct?
VI. Statutory and Executive Order Reviews
A. Executive Orders 12866: Regulatory Planning and Review and
Executive Order 13563: Improving Regulation and Regulatory Review
B. Executive Order 13771: Reducing Regulations and Controlling
Regulatory Costs
C. Paperwork Reduction Act (PRA)
D. Regulatory Flexibility Act (RFA)
E. Unfunded Mandates Reform Act (UMRA)
F. Executive Order 13132: Federalism
G. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
H. Executive Order 13045: Protection of Children From
Environmental Health Risks and Safety Risks
I. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
J. National Technology Transfer and Advancement Act (NTTAA)
K. Executive Order 12898: Federal Actions to Address
Environmental Justice in Minority Populations and Low-Income
Populations
L. Congressional Review Act (CRA)
I. General Information
A. Does this action apply to me?
Regulated entities. Categories and entities potentially regulated
by this action are shown in Table 1 of this preamble.
Table 1--NESHAP and Industrial Source Categories Affected by This Final Action
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Source category NESHAP NAICS \1\ code
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Engine Test Facilities.................. Engine Test Cells/Stands... 333120, 333618, 333111, 334312, 336111,
336120, 336112, 336992, 336312, 336350,
54171, 541380, 333611, 336411, 336412,
336414, 92711.
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\1\ North American Industry Classification System.
Table 1 of this preamble is not intended to be exhaustive, but
rather to provide a guide for readers regarding entities likely to be
affected by the final action for the source category listed. To
determine whether your facility is affected, you should examine the
applicability criteria in the appropriate NESHAP. If you have any
questions regarding the applicability of any aspect of this NESHAP,
please contact the appropriate person listed in the preceding FOR
FURTHER INFORMATION CONTACT section of this preamble.
B. Where can I get a copy of this document and other related
information?
In addition to being available in the docket, an electronic copy of
this final action will also be available on the internet. Following
signature by the EPA Administrator, the EPA will post a copy of this
final action at: https://www.epa.gov/stationary-sources-air-pollution/engine-test-cellsstands-national-emission-standards-hazardous-air.
Following publication in the Federal Register, the EPA will post the
Federal Register version and key technical documents at this same
website.
Additional information is available on the RTR website at https://www.epa.gov/stationary-sources-air-pollution/risk-and-technology-review-national-emissions-standards-hazardous. This information
includes an overview of the RTR program and links to project websites
for the RTR source categories.
C. Judicial Review and Administrative Reconsideration
Under Clean Air Act (CAA) section 307(b)(1), judicial review of
this final action is available only by filing a petition for review in
the United States Court of Appeals for the District of Columbia Circuit
(the Court) by August 3, 2020. Under CAA section 307(b)(2), the
requirements established by this final rule may not be challenged
separately in any civil or criminal proceedings brought by the EPA to
enforce the requirements.
Section 307(d)(7)(B) of the CAA further provides that only an
objection to a rule or procedure which was raised with reasonable
specificity during the period for public comment (including any public
hearing) may be raised during judicial review. This section also
provides a mechanism for the EPA to reconsider the rule if the person
raising an objection can demonstrate to the Administrator that it was
impracticable to raise such objection within the period for public
comment or if the grounds for such objection arose after the period for
public comment (but within the time specified for judicial review) and
if such objection is of central relevance to the outcome of the rule.
Any person seeking to make such a demonstration should submit a
Petition for Reconsideration to the Office of the Administrator, U.S.
EPA, Room 3000, WJC South Building, 1200 Pennsylvania Ave. NW,
Washington, DC 20460, with a copy to both the person(s) listed in the
preceding FOR FURTHER INFORMATION CONTACT section, and the Associate
General Counsel for the Air and Radiation Law Office, Office of General
Counsel (Mail Code 2344A), U.S. EPA, 1200 Pennsylvania Ave. NW,
Washington, DC 20460.
II. Background
A. What is the statutory authority for this action?
Section 112 of the CAA establishes a two-stage regulatory process
to address emissions of hazardous air pollutants (HAP) from stationary
sources. In the
[[Page 34328]]
first stage, we must identify categories of sources emitting one or
more of the HAP listed in CAA section 112(b) and then promulgate
technology-based NESHAP for those sources. ``Major sources'' are those
that emit, or have the potential to emit, any single HAP at a rate of
10 tons per year (tpy) or more, or 25 tpy or more of any combination of
HAP. For major sources, these standards are commonly referred to as
maximum achievable control technology (MACT) standards and must reflect
the maximum degree of emission reductions of HAP achievable (after
considering cost, energy requirements, and non-air quality health and
environmental impacts). In developing MACT standards, CAA section
112(d)(2) directs the EPA to consider the application of measures,
processes, methods, systems, or techniques, including, but not limited
to those that reduce the volume of or eliminate HAP emissions through
process changes, substitution of materials, or other modifications;
enclose systems or processes to eliminate emissions; collect, capture,
or treat HAP when released from a process, stack, storage, or fugitive
emissions point; are design, equipment, work practice, or operational
standards; or any combination of the above.
For these MACT standards, the statute specifies certain minimum
stringency requirements, which are referred to as MACT floor
requirements, and which may not be based on cost considerations. See
CAA section 112(d)(3). For new sources, the MACT floor cannot be less
stringent than the emission control achieved in practice by the best-
controlled similar source. The MACT standards for existing sources can
be less stringent than floors for new sources, but they cannot be less
stringent than the average emission limitation achieved by the best-
performing 12 percent of existing sources in the category or
subcategory (or the best-performing five sources for categories or
subcategories with fewer than 30 sources). In developing MACT
standards, we must also consider control options that are more
stringent than the floor under CAA section 112(d)(2). We may establish
standards more stringent than the floor, based on the consideration of
the cost of achieving the emissions reductions, any non-air quality
health and environmental impacts, and energy requirements.
In the second stage of the regulatory process, the CAA requires the
EPA to undertake two different analyses, which we refer to as the
technology review and the residual risk review. Under the technology
review, we must review the technology-based standards and revise them
``as necessary (taking into account developments in practices,
processes, and control technologies)'' no less frequently than every 8
years, pursuant to CAA section 112(d)(6). Under the residual risk
review, we must evaluate the risk to public health remaining after
application of the technology-based standards and revise the standards,
if necessary, to provide an ample margin of safety to protect public
health or to prevent, taking into consideration costs, energy, safety,
and other relevant factors, an adverse environmental effect. The
residual risk review is required within 8 years after promulgation of
the technology-based standards, pursuant to CAA section 112(f). In
conducting the residual risk review, if the EPA determines that the
current standards provide an ample margin of safety to protect public
health, it is not necessary to revise the MACT standards pursuant to
CAA section 112(f).\1\ For more information on the statutory authority
for this rule, see 84 FR 20208, May 8, 2019.
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\1\ The Court has affirmed this approach of implementing CAA
section 112(f)(2)(A): NRDC v. EPA, 529 F.3d 1077, 1083 (D.C. Cir.
2008) (``If EPA determines that the existing technology-based
standards provide an `ample margin of safety,' then the Agency is
free to readopt those standards during the residual risk
rulemaking.'').
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B. What is the Engine Test Cells/Stands source category and how does
the NESHAP regulate HAP emissions from the source category?
The EPA promulgated the Engine Test Cells/Stands NESHAP on May 27,
2003 (68 FR 28774). The standards are codified at 40 CFR part 63,
subpart PPPPP. The engine test facilities industry consists of
facilities that utilize engine test cells/stands for testing of
uninstalled stationary or uninstalled mobile engines. The source
category covered by this MACT standard currently includes 59
facilities.
As promulgated in 2003, the Engine Test Cells/Stands NESHAP applies
to engine test cells/stands located at major sources of HAP emissions.
Because the NESHAP regulates the testing of uninstalled stationary or
uninstalled mobile engines, it does not regulate the testing of any
final product (e.g., automobile, boat, or power generator). Engine test
cells/stands are used for research and development activities (e.g.,
new model development, endurance testing) and for quality control at
engine production facilities. More information about this source
category can be found in the proposal. See 84 FR 20211, May 8, 2019.
Engine test cells/stands emit HAP in the exhaust gases from
combustion of gaseous and liquid fuels in the engines tested. The
emission rates and annual emissions vary based on the size and design
of the engines tested, the types of fuels burned, and the number, type,
and duration of tests performed. Fuels used during testing include, but
are not limited to, biofuels, natural gas, propane, gasoline, kerosene,
jet fuel, diesel, and various grades of fuel oil.
The sources of emissions are the exhaust gases from combustion of
fuels in the engines being tested in the test cells/stands. The primary
HAP present in the exhaust gases from engine test cells/stands are
formaldehyde, benzene, acetaldehyde, and 1,3-butadiene.
The Engine Test Cells/Stands NESHAP provides the owner or operator
of a new or reconstructed affected source used in whole or in part for
testing internal combustion engines with rated power of 25 horsepower
or more and located at a major source of HAP emissions two compliance
options: (1) Reduce carbon monoxide (CO) or total hydrocarbons (THC)
emissions in the exhaust from the new or reconstructed affected source
to 20 parts per million by volume dry basis or less, at 15-percent
oxygen content, or (2) reduce CO or THC emissions in the exhaust from
the new or reconstructed affected source by 96 percent or more. If a
new or reconstructed affected source elects to comply with the percent
reduction emission limitation, the affected source must conduct an
initial performance test to determine the capture and control
efficiencies of the equipment and to establish operating limits to be
achieved on a continuous basis.
C. What changes did we propose for the Engine Test Cells/Stands source
category in our May 8, 2019, proposal?
On May 8, 2019, the EPA published a proposed rule in the Federal
Register for the Engine Test Cells/Stands NESHAP, 40 CFR part 63,
subpart PPPPP, that took into consideration the RTR analyses. In the
proposed rule, we proposed: No revisions to the numerical emissions
limit based on the risk analysis and technology review; to amend
provisions addressing periods of SSM; to amend provisions regarding
electronic reporting; and to make certain clarifying and technical
corrections.
III. What is included in this final rule?
This action finalizes the EPA's determinations pursuant to the RTR
provisions of CAA section 112 for the Engine Test Cells/Stands source
category. This action also finalizes
[[Page 34329]]
changes to the NESHAP for that source category, including changes to
SSM provisions, changes to electronic reporting requirements, as well
as clarifying and technical corrections. This action also reflects
certain revisions to the May 2019 proposal in consideration of comments
received during the public comment period described in section IV of
this preamble.
A. What are the final rule amendments based on the risk review for the
Engine Test Cells/Stands source category?
This section introduces the final amendments to the Engine Test
Cells/Stands NESHAP being promulgated pursuant to CAA section 112(f).
As proposed, we are finalizing our finding that risks remaining after
implementation of the existing MACT standards for this source category
are acceptable. Similarly, as proposed, we are finalizing the
determination that the current NESHAP provides an ample margin of
safety to protect public health, and that a more stringent standard is
not necessary to prevent an adverse environmental effect. Therefore, we
are not finalizing any revisions to the numerical emission limits based
on the analysis conducted under CAA section 112(f), and we are
readopting the current standards.
B. What are the final rule amendments based on the technology review
for the Engine Test Cells/Stands source category?
We determined that there are no developments in practices,
processes, and control technologies that warrant revisions to the MACT
standards for this source category. Therefore, we are not finalizing
revisions to the MACT standards under CAA section 112(d)(6).
C. What are the final rule amendments addressing emissions during
periods of SSM?
We are finalizing the proposed amendments to the Engine Test Cells/
Stands NESHAP to remove or revise provisions related to SSM. In its
2008 decision in Sierra Club v. EPA, 551 F.3d 1019 (D.C. Cir. 2008),
the Court vacated portions of two provisions in the EPA's CAA section
112 regulations governing the emissions of HAP during periods of SSM.
Specifically, the Court vacated the SSM exemption contained in 40 CFR
63.6(f)(1) and 40 CFR 63.6(h)(1), holding that under section 302(k) of
the CAA, emissions standards or limitations must be continuous in
nature and that the SSM exemption violates the CAA's requirement that
some CAA section 112 standards apply continuously. As detailed in
section IV.D.1 of the proposal preamble (84 FR 20208, May 8, 2019), the
Engine Test Cells/Stands NESHAP requires that the standards apply at
all times (see 40 CFR 63.9305(a)), consistent with the Court decision
in Sierra Club v. EPA, 551 F. 3d 1019 (D.C. Cir. 2008).
EPA is finalizing the SSM provisions as proposed without setting a
separate standard for startup and shutdown as discussed in the
proposal. See 84 FR 20226, May 8, 2019.
Further, the EPA is not finalizing standards for malfunctions. As
discussed in the May 2019 proposal preamble, the EPA interprets CAA
section 112 as not requiring emissions that occur during periods of
malfunction to be factored into development of CAA section 112
standards, although the EPA has the discretion to set standards for
malfunctions where feasible. See 84 FR 20226 (May 8, 2019), for further
discussion of the EPA's rationale for the decision not to set standards
for malfunctions, as well as a discussion of the actions a source could
take in the unlikely event that a source fails to comply with the
applicable CAA section 112(d) standards as a result of a malfunction
event, given that administrative and judicial procedures for addressing
exceedances of the standards fully recognize that violations may occur
despite good faith efforts to comply and can accommodate those
situations.
As is explained in more detail below, we are finalizing revisions
to the General Provisions table to 40 CFR part 63, subpart PPPPP, to
eliminate requirements that include rule language providing an
exemption for periods of SSM. Additionally, we are finalizing our
proposal to eliminate language related to SSM that treats periods of
startup and shutdown the same as periods of malfunction, as explained
further below. Finally, we are finalizing our proposal to revise the
recordkeeping and reporting requirements as they relate to
malfunctions, as further described below. As discussed in the proposal
preamble, these revisions are consistent with the requirement in 40 CFR
63.9305(a) that the standards apply at all times. See 84 FR 20228-29,
May 8, 2019.
D. What other changes have been made to the NESHAP?
Consistent with the proposal, the EPA is finalizing the electronic
reporting requirements, specifically that owners and operators of
engine test cells/stands submit electronic copies of required
performance test reports, performance evaluation reports, and
semiannual compliance reports through the EPA's Central Data Exchange
(CDX) using the Compliance and Emissions Data Reporting Interface
(CEDRI).
We are also finalizing additional changes to the NESHAP that
address technical and editorial corrections, as proposed and as
described in section IV.E of this preamble.
E. What are the effective and compliance dates of the standards?
The revisions to the MACT standards being promulgated in this
action are effective on June 3, 2020. The compliance date for existing
engine test cells/stands is December 1, 2020. New sources, including
those that commenced construction or reconstruction after May 8, 2019,
must comply with all of the revisions to the standards immediately upon
the effective date of this action, June 3, 2020, or upon startup,
whichever is later.
For existing affected sources, we are finalizing two changes, as
proposed, that would impact ongoing compliance requirements for 40 CFR
part 63, subpart PPPPP. As discussed elsewhere in this preamble, we are
finalizing the requirement that performance test results, performance
evaluation reports, and the semiannual reports using the new template
be submitted electronically. We are also finalizing a change to the
requirements for SSM by removing the exemption from the requirements to
meet the standard during SSM periods and by removing the requirement to
develop and implement an SSM plan, as proposed. We have experience with
similar industries that have been required to convert reporting
mechanisms, install necessary hardware, install necessary software,
become familiar with the process of submitting performance test results
electronically through the EPA's CEDRI, test these new electronic
submission capabilities, reliably employ electronic reporting, and
convert logistics of reporting processes to different time-reporting
parameters. This experience shows that a time period of a minimum of 90
days, and more typically 180 days, is generally necessary to
successfully complete these changes. Our experience with similar
industries further shows that this sort of regulated facility generally
requires a time period of 180 days to read and understand the amended
rule requirements; evaluate their operations to ensure that they can
meet the standards during periods of startup and shutdown as defined in
the rule and make any necessary adjustments; adjust parameter
monitoring and recording
[[Page 34330]]
systems to accommodate revisions; and update their operations to
reflect the revised requirements. The EPA recognizes the confusion that
multiple different compliance dates for individual requirements would
create and the additional burden such an assortment of dates would
impose. From our assessment of the timeframe needed for compliance with
the entirety of the revised requirements, the EPA considers a period of
180 days to be the most expeditious compliance period practicable, and,
thus, is finalizing the requirement that existing affected sources be
in compliance with all of the revised requirements of this rule within
180 days of the rule's effective date.
IV. What is the rationale for our final decisions and amendments for
the Engine Test Cells/Stands source category?
For each of the issues addressed in the proposed rule, this section
provides a description of what we proposed and what we are finalizing
for the issue, the EPA's rationale for the final decisions and
amendments, and a summary of key public comments and responses. For all
comments not discussed in this preamble, comment summaries, and the
EPA's responses can be found in the comment summary and response
document titled Summary of Public Comments and Responses for the
Residual Risk and Technology Review for Engine Test Cells/Stands, which
is available in the docket for this action.
A. Residual Risk Review for the Engine Test Cells/Stands Source
Category
1. What did we propose pursuant to CAA section 112(f) for the Engine
Test Cells/Stands source category?
Pursuant to CAA section 112(f), the EPA conducted a risk review and
presented the results for the review, along with our proposed decisions
regarding risk acceptability and ample margin of safety, in the May
2019 proposed rule for the Engine Test Cells/Stands source category (84
FR 20208, May 8, 2019). The results of the risk assessment are
presented briefly in Table 2 of this preamble and in more detail in the
residual risk document titled Residual Risk Assessment for the Engine
Test Cells/Stands Source Category in Support of the 2020 Risk and
Technology Review Final Rule, which is in the docket for this action.
Table 2--Engine Test Cells/Stands Inhalation Risk Assessment Results
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Maximum individual Population at Annual cancer Maximum chronic Maximum screening acute noncancer HQ
cancer risk (in 1 increased risk of incidence (cases per noncancer TOSHI \3\ \4\
million) \2\ cancer >=1-in-1 year) -------------------------------------------------------------
------------------------ million ------------------------ Based on . . .
Number of Based on . . . ------------------------ Based on . . . ------------------------
facilities \1\ ------------------------ Based on . . . ------------------------
------------------------ Actual Allowable Based on actual emissions level
Actual Allowable Actual Allowable Actual Allowable emissions emissions
emissions emissions emissions emissions emissions emissions level level
level level level level level level
--------------------------------------------------------------------------------------------------------------------------------------------------------
59................ 20 70 2,700 190,000 0.005 0.02 0.1 0.5 HQREL = 9 (acrolein) HQAEGL-1 = 0.4
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\1\ Number of facilities evaluated in the risk analysis.
\2\ Maximum individual excess lifetime cancer risk due to HAP emissions from the source category.
\3\ Maximum target organ-specific hazard index (TOSHI). The target organ system with the highest TOSHI for the source category is respiratory. The
respiratory TOSHI was calculated using the California EPA (CalEPA) chronic reference exposure level (REL) for acrolein. The EPA is in the process of
updating the Integrated Risk Information System (IRIS) reference concentration (RfC) for acrolein but did not complete this update prior to signature
of this final rule.
\4\ The maximum estimated acute exposure concentration was divided by available short-term threshold values to develop an array of hazard quotient (HQ)
values. HQ values shown use the lowest available acute threshold value, which in most cases is the REL. When an HQ exceeds 1, we also show the HQ
using the next lowest available acute dose-response value.
The results of the chronic inhalation cancer risk assessment, based
on actual emissions, show the maximum individual excess lifetime cancer
risk (MIR) posed by the 59 facilities is 20-in-1 million, with benzene,
1,3-butadiene, formaldehyde, and acetaldehyde emissions from
reciprocating engine testing as the major contributors to the risk. The
total estimated cancer incidence from this source category is 0.005
excess cancer cases per year, or one excess case every 200 years. About
2,700 people are estimated to have cancer risks greater than or equal
to 1-in-1 million from HAP emitted by this source category, with 60 of
those people estimated to have cancer risks above 10-in-1 million. The
maximum chronic noncancer target organ-specific hazard index (TOSHI)
value for the source category is 0.1 (respiratory) driven by emissions
of acrolein, acetaldehyde, formaldehyde, and naphthalene from
reciprocating engine testing. No one is exposed to TOSHI levels above
1.
The EPA also evaluated the cancer risk at the maximum emissions
allowed by the MACT standard, or ``MACT-allowable emissions.'' Risk
results from the inhalation risk assessment using the MACT-allowable
emissions indicate that the cancer MIR is 70-in-1 million with benzene,
1,3-butadiene, formaldehyde, and acetaldehyde emissions from
reciprocating engine testing driving the risks, and that the maximum
chronic noncancer TOSHI value is 0.5 at the MACT-allowable emissions
level with acrolein, acetaldehyde, formaldehyde, and naphthalene
emissions from reciprocating engine testing driving the TOSHI. The
total estimated cancer incidence from this source category considering
allowable emissions is expected to be about 0.02 excess cancer cases
per year or one excess case every 50 years. Based on MACT-allowable
emission rates, approximately 190,000 people are estimated to have
cancer risks above 1-in-1 million, with 500 of those people estimated
to have cancer risks above 10-in-1 million. No people are estimated to
have a noncancer hazard index (HI) above 1.
Table 1 of this preamble indicates that for the Engine Test Cells/
Stands source category, the maximum acute HQ could be up to 9, driven
by actual emissions of acrolein. To better characterize the potential
health risks associated with estimated worst-case acute exposures to
HAP, and in response to a key recommendation from the Science Advisory
Board's peer review of the EPA's RTR risk assessment methodologies, we
examined a wider range of available acute health metrics than we do for
our chronic risk assessments. This is in acknowledgement that there are
generally more data gaps and uncertainties in acute health reference
[[Page 34331]]
values than there are in chronic health reference values. By
definition, the acute REL represents a health-protective level of
exposure, with effects not anticipated below those levels, even for
repeated exposures. However, the level of exposure that would cause
health effects is not specifically known. Therefore, when an REL is
exceeded and an Acute Exposure Guideline Level (AEGL-1) or Emergency
Response Planning Guideline (ERPG-1) level is available (i.e., levels
at which mild, reversible effects are anticipated in the general public
for a single exposure), we typically use them as an additional
comparative measure, as they provide an upper bound for the threshold
level of exposure above which exposed individuals could experience
effects. As the exposure concentration increases above the acute REL,
the potential for effects increases. The highest refined screening
acute HQ value was 9 (based on the acute REL for acrolein). This value
includes a refinement of determining the highest HQ value that occurs
outside the boundaries of affected facilities. In this case the highest
value (9) occurs adjacent to a property boundary in a remote wooded
location. HQ values at all nearby residential locations are below 1. As
noted previously, the highest HQ occurred when the primary source of
the acrolein emissions from turbine engine testing operations was
modeled with an hourly emissions multiplier of 9.5 times the annual
emissions rate. For further information on the development of this
multiplier, see Appendix 1 of the document titled Residual Risk
Assessment for the Engine Test Cells/Stands Source Category in Support
of the 2020 Risk and Technology Review Final Rule, which is available
in the docket for this action. The analysis also conservatively assumes
all emission points at the facility impact the same receptor at the
same time. As presented in Table 2, no facilities are estimated to have
an HQ greater than 1 based on an AEGL or an ERPG.
Regarding multipathway risk screening, of the 59 facilities in the
source category, 21 facilities reported emissions of carcinogenic
hazardous air pollutants known to be persistent and bio-accumulative in
the environment (PB-HAP) (arsenic and polycyclic organic matter (POM)),
and 23 facilities reported emissions of non-carcinogenic PB-HAP
(cadmium and mercury). Three of these facilities reported emissions of
a carcinogenic PB-HAP (arsenic) that exceeded a Tier 1 cancer screening
threshold emission rate, and one facility reported emissions of non-
carcinogenic PB-HAP (cadmium and mercury) that exceeded a Tier 1
noncancer screening threshold emission rate. For facilities that
exceeded the Tier 1 multipathway screening threshold emission rate for
one or more PB-HAP, we used additional facility site-specific
information to perform a Tier 2 screening assessment and determined the
maximum chronic cancer and noncancer impacts for the source category.
Based on the Tier 2 multipathway cancer assessment, the arsenic
emissions exceeded the Tier 2 screening threshold emission rate by a
factor of 2. An exceedance of a screening threshold emission rate in
any of the tiers cannot be equated with a risk value or an HQ (or HI).
Rather, it represents a high-end estimate of what the risk or hazard
may be. For example, a screening threshold emission rate of 2 for a
non-carcinogen can be interpreted to mean that we are confident that
the HQ would be lower than 2. Similarly, a tier screening threshold
emission rate of 30 for a carcinogen means that we are confident that
the risk is lower than 30-in-1 million. Our confidence comes from the
conservative, or health-protective, assumptions encompassed in the
screening tiers: We choose inputs from the upper end of the range of
possible values for the influential parameters used in the screening
tiers, and we assume that the exposed individual exhibits ingestion
behavior that would lead to a high total exposure. The Tier 2 noncancer
screening threshold emission rate for both mercury and cadmium
emissions were below 1. Thus, based on the Tier 2 results presented
above, additional screening or site-specific assessments were not
deemed necessary.
The EPA also conducted an environmental risk screening assessment
for the Engine Test Cells/Stands source category for the following
pollutants: Arsenic, cadmium, hydrochloric acid (HCl), hydrogen
fluoride (HF), lead, mercury (methyl mercury and mercuric chloride),
and POM. In the Tier 1 screening analysis for PB-HAP (other than lead,
which was evaluated differently), arsenic and POM emissions had no
exceedances of any of the ecological benchmarks evaluated. Divalent
mercury, methyl mercury, and cadmium emissions had Tier 1 exceedances
at one facility of surface soil benchmarks by a maximum screening value
of 3. A Tier 2 screening analysis was performed for divalent mercury,
methyl mercury, and cadmium emissions. In the Tier 2 screening
analysis, there were no exceedances of any of the ecological benchmarks
evaluated for any of the pollutants. For lead, we did not estimate any
exceedances of the secondary lead National Ambient Air Quality Standard
(NAAQS). For HCl and HF, the average modeled concentration around each
facility (i.e., the average concentration of all off-site data points
in the modeling domain) did not exceed any ecological benchmark. In
addition, each individual modeled concentration of HCl and HF (i.e.,
each off-site data point in the modeling domain) was below the
ecological benchmarks for all facilities. Based on the results of the
environmental risk screening analysis, we do not expect an adverse
environmental effect as a result of HAP emissions from this source
category.
An assessment of risk from facility-wide emissions was performed to
provide context for the source category risks. The results of the
facility-wide risk assessment for both MACT sources and non-MACT
sources (i.e., sources at the facility that are not included in the
Engine Test Cells/Stands source category) indicate that 23 facilities
included in the analysis have a facility-wide cancer MIR greater than
or equal to 1-in-1 million, and 10 of those facilities have a facility-
wide cancer MIR greater than or equal to 10-in-1 million. The maximum
facility-wide cancer MIR is 70-in-1 million, mainly driven by emissions
of chromium (VI) compounds from organic solvent (miscellaneous volatile
organic compounds (VOC)) evaporation. The total estimated cancer
incidence from the whole facility is 0.03 excess cancer cases per year,
or one excess case every 33 years. Approximately 190,000 people were
estimated to have cancer risks above 1-in-1 million from exposure to
HAP emitted from both MACT and non-MACT sources at the 59 facilities in
this source category, with 6,800 of those people estimated to have
cancer risks above 10-in-1 million. The maximum facility-wide chronic
noncancer TOSHI (neurological) for the source category is estimated to
be less than 1 (at 0.4), mainly driven by emissions of lead compounds
and hydrogen cyanide from open burning of rocket propellant (an
industrial solid waste disposal process) and by trichloroethylene
emissions from liquid waste (a general waste treatment process). None
of the population around the 59 facilities are exposed to noncancer HI
levels above 1, based on facility-wide emissions.
To examine the potential for any environmental justice issues that
might be associated with the source category, the EPA performed a
demographic analysis, which is an assessment of risks to individual
demographic groups of the
[[Page 34332]]
populations living within 5 kilometers (km) and also the populations
living within 50 km of the facilities. In each case, we found that just
over 40 percent of the residents within these distances are classified
as minority (compared to a national minority average of 38 percent of
the population). When examining the population exposed to a cancer MIR
at or above 1-in-1 million, we found that only 10 percent of them are
categorized as minorities. Further, none of the population around the
facilities is exposed to a chronic noncancer TOSHI greater than 1. For
more information regarding the methodology and the results of the
demographic analysis, see the technical report titled Risk and
Technology Review-Analysis of Demographic Factors for Populations
Living Near Engine Test Cells/Stands Source Category Operations, which
is available in the docket for this action.
The EPA weighed all health risk factors in our risk acceptability
determination, and we proposed that the residual risks from this source
category are acceptable. We then considered whether the current NESHAP
for the source category provides an ample margin of safety to protect
public health, and whether more stringent standards are necessary to
prevent an adverse environmental effect, by taking into consideration
costs, energy, safety, and other relevant factors. In determining
whether the current standards provide an ample margin of safety to
protect public health, we examined the same risk factors that we
investigated for our acceptability determination and also considered
the costs, technological feasibility, and other relevant factors
related to emission control options that might reduce risk associated
with emissions from the source category. We proposed that the 2003
Engine Test Cells/Stands NESHAP requirements provide an ample margin of
safety to protect public health. Based on the results of our
environmental risk screening assessment, we also proposed that more
stringent standards are not necessary to prevent an adverse
environmental effect.
2. How did the risk review change for the Engine Test Cells/Stands
source category?
Since proposal, neither the risk assessment nor our determinations
regarding risk acceptability, ample margin of safety, or adverse
environmental effects have changed.
3. What key comments did we receive on the risk review, and what are
our responses?
The EPA received comments in support of and against the proposed
risk review and our proposed determination that no revisions are
warranted under CAA section 112(f)(2). Comments that were not
supportive of the risk review were considered at length.
Comment: One commenter argued that the EPA had failed to quantify
and reduce the health risks posed by lead emissions. The commenter
noted that engine test cells/stands emit 0.03 tons of lead per year.
The commenter noted that lead is particularly harmful to children and
the developing fetus. The commenter was concerned the EPA had not
quantified the health risks from lead emissions and disagreed with the
Agency's determination that no individual source is causing an
exceedance of the NAAQS for Lead. The commenter asserted that EPA must
not ignore the health risks lead causes, given that lead is a well-
known toxic heavy metal with diverse and severe health impacts for
which there is no safe level for human exposure. In particular, the
commenter stated that lead is associated with neurological,
hematological, and immune effects on children and hematological,
cardiovascular, and renal effects on adults. The commenter also noted
that children are particularly sensitive to the effects of lead,
including sensory, motor, cognitive, and behavioral impacts. The
commenter further noted that no safe blood lead level in children has
been identified; that low levels of lead in blood have been shown to
affect IQ and academic achievement; and that the effects of lead
exposure cannot be remedied. According to the commenter, a recent study
found that for every 0.2 micrograms per deciliter ([mu]g/dL) of lead in
the blood, an adolescent's IQ was reduced one point. Children residing
in poverty and black children face higher exposures to lead and are
consequently more susceptible to lead's health impacts. Reproductive
effects, such as decreased sperm count in men and spontaneous abortions
in women, have been associated with lead exposure. The commenter noted
that the EPA has classified lead as a probable human carcinogen.
The commenter disagreed with the EPA's use of the 2008 lead NAAQS
as a benchmark for determining acceptable risk and argued that the
EPA's assessment of the health risks for lead was inadequate. The
commenter noted that the EPA, Centers for Disease Control and
Prevention (CDC), CalEPA, and the American Academy of Pediatrics (AAP)
acknowledge that no safe level of lead can be identified. By relying on
the lead NAAQS rather than conducting an independent risk assessment,
the commenter believed the EPA's risk assessment for lead was
inadequate because the EPA had not assessed the inhalation risks (from
breathing) and multipathway risks (from other types of exposure). The
commenter argued that the EPA cannot presume that achieving an ambient
air concentration of the NAAQS for lead is sufficient to ensure an
acceptable health risk and provide an ``ample margin of safety to
protect public health'' from lead for CAA section 112(f) purposes. The
commenter observed that the NAAQS recognizes harm (including the loss
of IQ points as an indicator of neurological harm) occurs below the
level of the NAAQS.
The commenter also noted that the Children's Health Protection
Advisory Committee (CHPAC) has advised the EPA to lower the lead NAAQS
to 0.02 micrograms per cubic meter ([mu]g/m\3\) because the 2008 Lead
NAAQS ``is insufficient to protect children's health.'' The commenter
argued that the current NAAQS addresses air-related population mean IQ
loss in excess of 2 points and recognizes that on average higher
neurological harm is occurring under the 2008 lead NAAQS. The commenter
believed that it is likely harm occurs below the level of the 2008
NAAQS and that it is unacceptable for the EPA to ignore the harm caused
by lead emissions. The commenter argued that EPA must address and
incorporate the best currently available information on children's
exposure, including the CHPAC recommendation of lowering the lead
standards to 0.02 [mu]g/m\3\ from the current NAAQS level of 0.15
[mu]g/m\3\. The commenter noted that the CDC has recognized that there
is no safe level for lead exposure and uses a reference level of 5
[mu]g/dL, while California's health benchmark level at which measurable
neurological harm can occur is 1.0 [mu]g/dL. The commenter recommended
that the EPA use the Integrated Exposure Uptake Biokinetic model for
infants and children and the Adult Lead Methodology for fetus. In
addition, the commenter suggested that the EPA should update the
residual risk assessment for this source category to include available
test data on lead in soil and waterways and to evaluate the potential
health impacts resulting from the emission of lead from each facility.
The commenter believes that additional monitoring should also be
required to ensure that lead emitted from a facility
[[Page 34333]]
is at low enough concentrations such that it does not raise an
individual's blood lead level by 1 [mu]g/dL.
Response: The EPA disagrees with the commenter's assertion that we
failed to assess risks from either lead or lead compounds for the
Engine Test Cells/Stands source category. The inhalation risks of lead
were assessed using Human Exposure Model, Version 1.5.5 (HEM-3) and the
RfC values documented in Table 1 of Appendix 8 of the document titled,
Residual Risk Assessment for the Engine Test Cells/Stands Source
Category in Support of the 2019 Risk and Technology Review Proposed
Rule. The lead NAAQS was used to assess multipathway risk from lead
emissions. See 84 FR 20218, May 8, 2019. The standard provided the
benchmark for our decision that further assessment of health impacts
from lead exposure from category sources is not necessary and is an
otherwise appropriate use of the standard.
We also disagree with the commenter's assertion that either the use
of the lead NAAQS does not sufficiently protect public health from lead
emissions from this source category or the setting of the lead NAAQS
did not reflect an adequate scientific assessment of risk. While
recognizing that lead has been demonstrated to exert ``a broad array of
deleterious effects on multiple organ systems,'' the lead NAAQS targets
the effects associated with relatively lower exposures and associated
blood lead levels, specifically nervous system effects in children,
including cognitive and neurobehavioral effects (73 FR 66976, November
12, 2008). The EPA establishes the NAAQS at a level to protect
sensitive subpopulations, such as children and pregnant women. The 2008
decision on the lead NAAQS was informed by an evidence-based framework
for neurocognitive effects in young children. In applying the evidence-
based framework, the EPA focused on a subpopulation of U.S. children,
those living near air sources and more likely to be exposed at the
level of the standard; to the same effect.\2\ In addition, in reviewing
and sustaining the primary lead NAAQS, we note that the Court
specifically noted that the lead NAAQs was targeted to protect children
living near lead sources: ``EPA explained that the scientific evidence
showing the impact of lead exposure in young children in the United
States led it `to give greater prominence to children as the sensitive
subpopulation in this review' and to focus its revision of the lead
NAAQS on the `sensitive subpopulation that is the group of children
living near [lead emission] sources and more likely to be exposed at
the level of the standard.' Given the scientific evidence on which it
relied, the EPA's decision to base the revised lead NAAQS on protecting
the subset of children likely to be exposed to airborne lead at the
level of the standard was not arbitrary or capricious.'' Coalition of
Battery Recyclers, 604 F. 3d 613, 618 (D.C. Cir. 2010).
---------------------------------------------------------------------------
\2\ See for example, 73 FR 67000/3--``The framework in effect
focuses on the sensitive subpopulation that is the group of children
living near sources and more likely to be exposed at the level of
the standard. The evidence-based framework estimates a mean air-
related IQ loss for this subpopulation of children; it does not
estimate a mean for all U.S. children''; see also 73 FR 67005/1--
``the air-related IQ loss framework provides estimates for the mean
air-related IQ loss of a subset of the population of U.S. children,
and there are uncertainties associated with those estimates. It
provides estimates for that subset of children likely to be exposed
to the level of the standard, which is generally expected to be the
subpopulation of children living near sources who are likely to be
most highly exposed.''
---------------------------------------------------------------------------
As noted in the risk assessment document, there is no reference
dose (RfD) or other comparable chronic health benchmark value for lead
compounds. In 1988, the EPA's IRIS program also reviewed the health
effects data regarding lead and its inorganic compounds and determined
that it would be inappropriate to develop an RfD for these compounds,
stating, ``A great deal of information on the health effects of lead
has been obtained through decades of medical observation and scientific
research. This information has been assessed in the development of air
and water quality criteria by the Agency's Office of Health and
Environmental Assessment (OHEA) in support of regulatory decision-
making by the Office of Air Quality Planning and Standards and by the
Office of Drinking Water. By comparison to most other environmental
toxicants, the degree of uncertainty about the health effects of lead
is quite low. It appears that some of these effects, particularly
changes in the levels of certain blood enzymes and in aspects of
children's neurobehavioral development may occur at blood lead levels
so low that a threshold has yet to be determined. The Agency's RfD Work
Group discussed inorganic lead (and lead compounds) at two meetings
(07/08/1985 and 07/22/1985) and considered it inappropriate to develop
an RfD for inorganic lead.''
The EPA's IRIS assessment for lead and lead compounds (inorganic)
(CASRN 7439-92-1) can be found at: https://www.epa.gov/iris/subst/0277.htm.
With regard to the information identified by the commenter, much of
this information was similar to information available at the time of
the 2008 NAAQS decision. For example, in 2005, the CDC recognized the
evidence of adverse health effects in children with blood lead levels
below 10 [mu]g/dL, and that there is no safe level of blood lead in
young children.\3\ The commenter also cites a benchmark analysis by
California EPA OEHHA that was completed during the time of the last
review.\4\ The quantitative relationship from this analysis of a
correlation of one IQ point change with a 1.0 [mu]g/dL change in blood
lead is actually a substantially smaller change in IQ per [mu]g/dL
blood lead than the slope of 1.75 IQ points per [mu]g/dL blood lead
used in the evidence-based framework that the Administrator relied upon
in his 2008 decision on a revised level for the lead NAAQS (73 FR
66964, November 12, 2008). Regarding the CHPAC recommendation on level
and averaging time referenced by the commenter, this was made to the
EPA in January 2015 in the context of the current NAAQS review and the
same comment was made and considered in the 2008 review that concluded
with the current lead NAAQS.
---------------------------------------------------------------------------
\3\ CDC (2005), Preventing Lead Poisoning in Young Children: A
Statement by the Centers for Disease Control and Prevention. August
2005. https://www.cdc.gov/nceh/lead/publications/prevleadpoisoning.pdf.
\4\ Carlisle, J. and K. Dowling. Development of health criteria
for school site risk assessment pursuant to health and safety code
section 901(g): Child-specific benchmark change in blood lead
concentration for school site risk assessment. Final Report.
Sacramento: Integrated Assessment Branch, OEHHA, California EPA.
April 2007.
---------------------------------------------------------------------------
We also disagree with the comment that EPA cannot presume that
achieving an ambient air concentration of the NAAQS for lead is
sufficient to ensure acceptable health risk and provide an ``ample
margin of safety to protect public health'' from lead for CAA section
112(f) purposes. The EPA considered the primary NAAQS for lead--which
incorporates an adequate margin of safety--in determining whether lead
risks (taken together with cancer and other noncancer health risks)
from air-borne lead from engine test facilities are acceptable or
unacceptable, under CAA section 112(f)(2). As explained at proposal,
ample margin of safety determinations, under CAA section 112(f)(2) are
conducted separately, in accord with the two-step framework set forth
in the Benzene NESHAP and NRDC v. EPA (the Vinyl Chloride Decision),
824 F. 2d at 1165, 1166 (D.C. Cir. 1987) and NRDC v. EPA, 902 F. 2d
962, 973-74 (D.C. Cir. 1990) (distinguishing the NAAQS process,
[[Page 34334]]
whereby the margin of safety analysis is incorporated as part of the
standard without a two-step analysis, from residual risk
determinations).\5\ See 84 FR 20218 n.28.
---------------------------------------------------------------------------
\5\ The Court was referring to the predecessor provision to the
current CAA section 112(f), but its analysis is equally applicable
to the revised provision.
---------------------------------------------------------------------------
After review of all the comments received, we determined that no
changes needed to be made to the underlying risk assessment
methodology. Additional comments and our specific responses can be
found in the document titled Summary of Public Comments and Responses
for the Residual Risk and Technology Review for Engine Test Cells/
Stands, which is available in the docket for this action.
4. What is the rationale for our final approach and final decisions for
the risk review?
The EPA evaluated all of the comments on the EPA's risk review and
determined that no changes to the review are needed. For the reasons
explained in the proposed rule, we proposed that the risks from the
Engine Test Cells/Stands source category are acceptable, and the
current standards provide an ample margin of safety to protect public
health and prevent an adverse environmental effect. Therefore, pursuant
to CAA section 112(f)(2), we are finalizing our risk review as
proposed, and we are readopting the current standards.
B. Technology Review for the Engine Test Cells/Stands Source Category
1. What did we propose pursuant to CAA section 112(d)(6) for the Engine
Test Cells/Stands source category?
Pursuant to CAA section 112(d)(6), the EPA conducted a technology
review, which focused on identifying and evaluating developments in
practices, processes, and control technologies for control of HAP
emissions from engine testing facilities. No cost-effective
developments in practices, processes, or control technologies were
identified in our technology review to warrant revisions to the
standards. More information concerning our technology review is in the
memorandum titled Technology Review for the Engine Test Cells/Stands
Source Category, which is in the docket for this action, and in the
preamble to the proposed rule (84 FR 20208, May 8, 2019).
2. How did the technology review change for the Engine Test Cells/
Stands source category?
The technology review has not changed since proposal.
3. What key comments did we receive on the technology review, and what
are our responses?
The EPA received comments in support of the proposed determination
from the technology review that no revisions were warranted under CAA
section 112(d)(6). We also received comments asserting that the
technology review was inadequate for a variety of reasons, primarily
because of failure to consider control technologies developed since the
original NESHAP.
Comment: One commenter noted that advances in diesel engine design
had greatly reduced air emissions from diesel engine test cells over
the last few years. The commenter stated that new diesel engines are
cleaner than they used to be and, as a result, emissions from engine
test cells and stands also declined because they are testing engines
that are operating more cleanly and efficiently. The commenter noted
the EPA is moving forward with new diesel truck standards. The
commenter thought the changes in the emissions from engines should
allow test cells to reduce their emissions. These advances, the
commenter argued, are developments the EPA should take into account.
The commenter thought the EPA should revise the emission standards
based on the ability to reduce emissions due to cleaner engines. The
EPA should evaluate advances in more efficient engines and operating
technology; use of lower HAP fuels; and alternative engines that do not
rely on HAP-emitting fuels. The commenter argued that the EPA did not
evaluate or take into account any of these developments, which the
commenter contended was ``unlawful, arbitrary, and capricious under
Sec. 7412(d)(6).''
Response: The EPA disagrees with the commenter's assertion that the
existing MACT standard should be lowered due to new emission standards
for diesel engines and advances in diesel engine design (presumably
under CAA sections 202 and 213). We also disagree with the commenter's
contention that by not considering these developments our technology
review is ``unlawful, arbitrary and capricious.'' CAA section 112(d)(6)
requires the EPA to conduct a technology review to determine if there
are ``developments in practices, processes, or control technologies''
that may be appropriate to incorporate into existing standards. At
proposal, we did not propose any revision to the current MACT standard
under CAA section 112(d)(6). We explained that the technology basis for
the MACT standard was the use of add-on capture systems and control
devices (i.e., thermal oxidizers or catalytic oxidizers) and that our
technology review under CAA section 112(d)(6) did not identify any new
or improved add-on control technology, or any new work practices,
operational procedures, process changes, or pollution prevention
approaches that reduce emissions in the category that have been
implemented at engine testing operations since promulgation of the
current NESHAP. See 84 FR 20225-26, May 8, 2019.
Additionally, the emission standards in 40 CFR part 63, subpart
PPPPP apply to the collection of engine test cells/stands located at a
major source of HAP emissions that are used to test uninstalled
stationary engines or uninstalled mobile engines. The subpart PPPPP
standards do not apply to individual engines or to final products, such
as automobiles or light and heavy-duty trucks. Rather, the purpose of
engine testing is to simulate the operation of a specific type of
engine under certain environmental conditions. In some cases, the
testing confirms a new or refurbished engine is assembled correctly and
will function as intended. In other cases, the testing measures the
durability and performance of a new engine design or a new engine
component.
In sum, under the CAA section 112(d)(6) technology review, the EPA
is concluding that there are no new cost-effective controls that would
achieve further emissions reductions and that the existing numerical
emission limits in the NESHAP should be retained. For these reasons,
consistent with the EPA's proposal, the emission limits in the NESHAP
are not being revised.
Comment: One commenter was concerned the EPA had not collected the
best available information on current controls and thought the EPA
should have requested information from pollution control manufacturers
and distributors, consulted with states and local air districts,
consulted with the Institute of Clean Air Companies, and requested
information from pollution control and monitoring companies regarding
developments in controls for HAP pollutants. The commenter believed
this information was readily available to the EPA and failing to
contact control manufacturers biased the EPA's technology review away
from the most current developments. The commenter thought the EPA
should have assessed the technologies and tools
[[Page 34335]]
available in the market for the control of the pollutants and provide
the information for notice-and-comment. The commenter believed that
providing this information to the public would have a positive impact
on the regulated industry, as well as community members exposed to
pollution. The commenter thought this information could lead facilities
to implement pollution controls with which they are not currently
familiar and would create jobs and increase the economic success both
of the regulated facility and the company selling the control or
monitoring tools.
Response: The EPA disagrees with the commenter. CAA section
112(d)(6) requires the EPA to review and revise standards ``as
necessary (taking into account developments in practices, processes,
and control technologies)'' no less often than every 8 years. Pursuant
to CAA section 112(d)(6), the EPA may consider cost in deciding whether
to revise existing standards. Our review of control technologies and
current industry processes and practices identified no new cost-
effective controls that would achieve further emission reductions. As
explained in the proposal preamble, the EPA completed a technology
review as part of this rulemaking, which focused on identifying and
evaluating any developments in practices, processes, and control
technologies that occurred since 2003. See 84 FR 20213-14, 20225-26,
May 8, 2019. In conducting the technology review for the Engine Test
Cells/Stands source category, the EPA looked for add-on control
technology that was not identified during the original NESHAP
development and for improvements to existing add-on controls. We also
looked for new work practices, operational procedures, process changes,
and pollution prevention alternatives that have the potential to reduce
emissions. We conducted extensive research to help us identify
developments in control technology, work practices and procedures that
could potentially reduce HAP emissions. Developments in practices,
processes, and control technologies were investigated through
discussions with industry representatives, searches of the EPA's
Reasonably Available Control Technology/Best Available Control
Technology/Lowest Achievable Emissions Rate Clearinghouse, site visits,
and literature searches. We met several times with industry
representatives and visited engine test facilities at four different
plants. We also included questions in a questionnaire that specifically
asked companies to provide information on their add-on control devices
and any work practices they use to reduce emissions. The questionnaire
was completed by multiple companies and covered over 40 individual
facilities known to operate engine test cells/stands. Fifteen of these
facilities were located at major sources of HAP, while the remainder
were located at area sources. The Agency's review found no new add-on
control technology, no developments in existing add-on control
technology, and no new work practices, operational changes, or
pollution prevention practices that would result in further reductions
in emissions from this source category. For a detailed discussion of
the findings, please refer to the Technology Review for the Engine Test
Cells/Stands Source Category memorandum, in the docket (Docket ID Item
No. EPA-HQ-OAR-2018-0753-0031).
The EPA also reviewed numerous construction and operating permits
issued by permitting authorities to major and area sources that operate
engine test facilities. As part of these reviews, we looked for any new
control technology or work practice standards required by a state or
local agency. We also provided a 45-day comment period on our proposed
conclusion that would allow industry, state, and local air agencies,
control device manufacturers, and other stakeholders to provide
information on any new technologies and work practices that we may have
overlooked. However, no new technologies or work practice approaches
were identified in the public comments we received. Commenters did not
provide any additional information on control technology for this
source category and the EPA did not receive any additional information
based on the proposal. The EPA typically has wide latitude in
determining the extent of data-gathering necessary to solve a problem
and courts generally defer to the Agency's decision to proceed on the
basis of imperfect scientific information, rather than to ``invest the
resources to conduct the perfect study.'' Sierra Club v. EPA, 167 F. 3d
658, 662 (D.C. Cir. 1999).
For these reasons, the EPA is not persuaded by these comments and
rather considers our review to be sufficiently rigorous. If any
improvements in control technology, work practices, operational
procedures, process changes, or pollution prevention approaches
occurred since the 2003 NESHAP was finalized, we would have identified
them. Since our review did not identify any improvements and no new
methods have been identified during the public comment period, we are
finalizing as proposed our determination that no changes to the
emission standards are required pursuant to CAA section 112(d)(6).
Comment: One commenter noted that no reduction in emission limits
for this source category has occurred since 2003 and stated that better
control technology is available that would make further emission
reductions possible.
Response: The EPA disagrees with the commenter. As explained
previously, our review of control technologies and current industry
processes and practices identified no new cost-effective controls that
would achieve further emission reductions. Although the commenter
stated that better technology is available, the commenter did not
identify or provide evidence demonstrating any control technology that
would achieve lower HAP emissions from engine test cells/stands. As
explained previously, the Agency's review found no new add-on control
technology, no developments in existing add-on control technology, and
no new work practices, operational changes, or pollution prevention
practices that would result in further reductions in emissions from
this source category. For a detailed discussion of the findings of our
technology review, please refer to the Technology Review for the Engine
Test Cells/Stands Source Category memorandum, which is available in the
docket (Docket ID Item No. EPA-HQ-OAR-2018-0753-0031).
Additional comments and our specific responses can be found in the
comment summary and response document titled, Summary of Public
Comments and Responses for the Residual Risk and Technology Review for
Engine Test Cells/Stands, which is available in the docket for this
action.
4. What is the rationale for our final approach for the technology
review?
The EPA evaluated all of the comments on the EPA's technology
review and determined that no changes to the review are needed. For the
reasons explained in the proposed rule, we determined that no cost-
effective developments in practices, processes, or control technologies
were identified in our technology review to warrant revisions to the
standards. More information concerning our technology review, and how
we evaluate cost effectiveness, can be found in the memorandum titled
Technology Review for the Engine Test Cells/Stands Source Category,
which is available in the docket for this action, and in the
[[Page 34336]]
preamble to the proposed rule (84 FR 20208, May 8, 2019). Therefore,
pursuant to CAA section 112(d)(6), we are finalizing our technology
review as proposed.
C. SSM for the Engine Test Cells/Stands Source Category
1. What did we propose for the Engine Test Cells/Stands source
category?
The EPA is finalizing the proposed amendments to the Engine Test
Cells/Stands NESHAP to remove or revise provisions related to SSM. In
its 2008 decision in Sierra Club v. EPA, 551 F.3d 1019 (D.C. Cir.
2008), the Court vacated portions of two provisions in the EPA's CAA
section 112 regulations governing the emissions of HAP during periods
of SSM. Specifically, the Court vacated the SSM exemption contained in
40 CFR 63.6(f)(1) and 40 CFR 63.6(h)(1), holding that under section
302(k) of the CAA, emissions standards or limitations must be
continuous in nature and that the SSM exemption violates the CAA's
requirement that some CAA section 112 standards apply continuously. The
EPA proposed the amendments to remove or revise provisions related to
SSM that are not consistent with the requirement that the standards
apply at all times. More information concerning the elimination or
revision of SSM provisions is detailed in the preamble to the proposed
rule (84 FR 20208, May 8, 2019).
2. How did the SSM provisions change for the Engine Test Cells/Stands
source category?
The EPA is finalizing the SSM provisions as proposed (84 FR 20208,
May 8, 2019) with minor changes to the General Provisions table (Table
7) and related cross-references to correct inadvertent errors made at
proposal. These include the following:
Addition of language in Table 7 indicating that several
provisions are still applicable for 180 days following the effective
date of this final rule; and
Removal of cross-references to SSM exemption-related
provisions.
We also note that because the final sentence in 40 CFR 63.8(d)(3)
refers to the General Provisions' SSM plan requirement which is no
longer applicable, the EPA is adding to the rule at 40 CFR
63.9355(c)(5) text that is identical to 40 CFR 63.8(d)(3) except that
the final sentence is replaced with the following sentence: ``The
program of corrective action should be included in the plan required
under Sec. 63.8(d)(2).'' A public comment was also received on this
issue and more information can be found in the comment summary and
response document titled Summary of Public Comments and Responses for
the Residual Risk and Technology Review for Engine Test Cells/Stands,
which is available in the docket for this action;
For reasons more fully described in the preamble at proposal, we
also proposed to revise 40 CFR 63.9305 to add regulatory text regarding
the general duty to minimize emissions. However, a typographical error
was inadvertently made at the end of the sentence, ``The general duty
to minimize emissions does not require the owner or operator to make
any further efforts to reduce emissions if levels required by the
applicable standard have been achieve.'' This sentence should have read
as follows, and we are finalizing it as such: ``The general duty to
minimize emissions does not require the owner or operator to make any
further efforts to reduce emissions if levels required by the
applicable standard have been achieved.''
Also, for reasons more fully described at proposal, we proposed to
revise 40 CFR 63.9355 to add regulatory text regarding the requirements
to record actions taken to minimize emissions and to record corrective
actions. However, in 40 CFR 63.9355(a)(6), we inadvertently left the
words ``the cause'' out of the sentence that read, ``For each failure
record the date, time and duration of each failure.'' This sentence
should have read as follows, and we are finalizing it as such: ``For
each failure record the date, time, the cause and duration of each
failure.''
Finally, while we proposed to revise the performance testing
requirement at 40 CFR 63.9321 to remove the language ``according to the
requirements in Sec. [thinsp]63.7(e)(1)'' (because 40 CFR 63.7(e)(1)
restated the SSM exemption), rule text showing this change was
inadvertently not provided in the amendatory text appearing toward the
end of the proposal document. Because this change, and the rationale
for it, was adequately described in the proposal preamble, we are
finalizing it as proposed.
3. What key comments did we receive on the SSM provisions, and what are
our responses?
The EPA received comments related to our proposed revisions to the
SSM provisions. One commenter generally supported the proposed
revisions to the SSM provisions but disagreed with the Agency's
approach to malfunctions.
Comment: One commenter disagreed with the EPA's assertion that the
Agency has the discretion to set standards for malfunctions where
feasible. The commenter asserted that the EPA has only the discretion
provided by the CAA (See, e.g., Clean Air Council v. EPA, 862 F.3d at 9
(D.C. Cir. 2018)) and that the CAA does not give the EPA authority to
set malfunction-based standards or exemptions (See 42 U.S.C. 7412(d),
(h), and 7602(k)). The commenter noted the EPA has not acted on a
petition for reconsideration that was filed when the EPA set a
malfunction standard in the Refinery Sector Rule (See Air Alliance
Houston et al. v. EPA, D.C. Cir. No. 16-1035 (filed February 7, 2016),
which held amendments in abeyance pending EPA action on
reconsideration). The commenter contends their reconsideration petition
and comments filed in support of that petition and offered at the
November 2016 public hearing have shown that the Refinery Sector Rule
malfunction exemption is unlawful and arbitrary and should be removed
from the standards. Since the EPA has not acted on the reconsideration
petition and the Court has held the case in abeyance, the commenter
said that no other similar proposals for other source categories should
be made until the Refinery Sector Rule petition is resolved. The
commenter maintains that the malfunction exemption in the Refinery
Sector Rule remains under a cloud of substantial controversy and is
unlawful and arbitrary.
Response: The EPA disagrees with the commenter's statement that the
EPA lacks the authority to set standards for malfunctions. In fact, in
the Court's decision in Sierra Club v. EPA, 551 F.3d 1019 (D.C. Cir.
2008) vacating the SSM exemption in EPA's regulations implementing CAA
section 112, the Court held that under section 302(k) of the CAA,
emissions standards or limitations must be continuous in nature and
that when CAA sections 112 and 302(k) are read together, Congress has
required that there must be continuous CAA section 112-compliant
standards. Pursuant to that holding, the EPA must apply a standard to
periods of malfunction. In this final rule, the EPA has removed the SSM
exemption and has required compliance with the existing standards
during periods of SSM. Thus, the EPA has set a standard for periods of
SSM as required by the Sierra Club decision.
The commenter's discussion of the EPA's decision in the Refinery
Sector Rule, to set a standard for a particular type of malfunction
that is different than the standards that apply in other circumstances,
is not relevant here because the standards in this final rule for
engine test cells apply to at all times, including during periods of
malfunction. The commenter also
[[Page 34337]]
characterizes the Refinery Sector Rule as containing a malfunction
exemption, so it is not clear whether the commenter's concern is with a
standard that applies during malfunctions. In any event, the
commenter's claim that the EPA has no authority to set standards for
malfunctions is inconsistent with the Sierra Club SSM case.
Additional comments and our specific responses can be found in the
comment summary and response document titled Summary of Public Comments
and Responses for the Residual Risk and Technology Review for Engine
Test Cells/Stands, which is available in the docket for this action.
4. What is the rationale for our final approach for the SSM provisions?
The EPA evaluated all of the comments on the EPA's proposed
amendments to the SSM provisions. For the reasons explained in the
proposed rule (84 FR 20208, May 8, 2019) and in section III.C of this
preamble, we are finalizing our approach for the SSM provisions as
proposed other than the minor changes detailed previously.
D. Electronic Reporting Requirements for the Engine Test Cells/Stands
Source Category
1. What did we propose for the Engine Test Cells/Stands source
category?
The EPA proposed that owners and operators of engine test cells/
stands must submit electronic copies of required performance test
reports, performance evaluation reports, and semiannual compliance
reports through the EPA's CDX using the CEDRI. More information
concerning our proposal on electronic reporting requirements can be
found in the proposed rule (84 FR 20208, May 8, 2019).
2. How did the electronic reporting provisions change for the Engine
Test Cells/Stands source category?
Since proposal, the electronic reporting provisions have not
changed.
3. What key comments did we receive on the electronic reporting
provisions, and what are our responses?
The EPA received comments both in support of and against the
proposed electronic reporting provisions.
Comment: One commenter supported the proposed use of electronic
reporting but recommended the EPA make certain changes to the proposed
reporting and recordkeeping requirements. The commenter supported
electronic reporting if it reduces regulatory burden, provides
flexibility, and creates efficiencies for regulated entities. Although
the commenter was supportive of electronic reporting, they wanted to
ensure there is an orderly transition to the new reporting system. The
commenter requested that the EPA should address the following issues:
The addition of electronic reporting should not establish
any new data requirements beyond what is currently required by the
regulation. All data reporting requirements should tie to a regulatory
citation;
The reporting system should allow companies the option to
provide explanatory comments on data or information submitted;
Electronic reporting should not place further restrictions
on who is eligible to submit a report;
Sufficient compliance time should be allowed for companies
to implement the revised requirements and to integrate EPA and company
systems;
Regulatory language should allow companies to submit
hardcopy reports if there are problems with the EPA's reporting system
availability or company systems;
Electronic reporting should allow companies to submit
reports as Portable Document Format (PDF) documents;
The reporting system should allow updates or corrections
to be submitted;
The EPA should work with other regulatory authorities
(i.e., states, local agencies) to establish comparable or compatible
electronic systems. The commenter said that electronic reporting to the
EPA would not reduce reporting burden if companies reporting
electronically to the EPA still have to submit hardcopy reports to
other agencies that do not have electronic systems; and
Any reporting templates should be available for review at
the time a rule is proposed.
Response: The EPA acknowledges the comment. The new requirement to
submit reports electronically does not establish any new data
requirements, will allow facilities to submit some performance test
results as an attachment within the electronic reporting tool (ERT) as
well as include additional information in the semiannual report in PDF,
allows facilities to make corrections to submittals through the
resubmittal process in CEDRI, provides sufficient time for facilities
to understand and comply with the new method of submitting reports, and
includes provisions allowing extensions to be approved for situations
where a facility is unable to successfully submit a report by the
reporting deadline due to circumstances beyond their control (e.g.,
outages of the EPA's CEDRI). Further, once submitted and certified,
reports can be accessed by facility personnel and authorized EPA,
Regional, state, local, and tribal reviewers.
For the semiannual compliance reports, reporters must use the
spreadsheet template provided by the EPA to submit information to
CEDRI. Additional information may be supplied through the comment field
or as additional attachments through the process described on the
Welcome tab of the spreadsheet template. In the proposal, we solicited
comment on the content, layout and overall design of the template and a
copy of the proposed template was made available in the docket (see
Engine_Test_Cells_Semiannual_Spreadsheet_Template_Draft, available at
Docket ID Item No. EPA-HQ-OAR-2018-0753-0147). 84 FR 20229, May 8,
2019. We received public comments on the draft template, which we took
into consideration when preparing the final semiannual compliance
report template. A copy of the final semiannual compliance report
template is available in the docket for this action (Docket ID No. EPA-
HQ-OAR-2018-0753). The official version of the report template is
available at the CEDRI homepage (https://www.epa.gov/electronic-reporting-air-emissions/cedri).
All facilities must submit their reports electronically. For
reports that contain information claimed as CBI, reporters will submit
redacted reports electronically and mail complete versions, including
the CBI, on a compact disc, flash drive, or other electronic storage
media to the EPA. Although facilities will not have the option to
continue submitting reports in hardcopy, the EPA provides support for
companies on the EPA's CEDRI website, accessed at https://www.epa.gov/electronic-reporting-air-emissions/cedri. An overview of the electronic
data submission process is provided in the memorandum, Electronic
Reporting Requirements for New Source Performance Standards (NSPS) and
National Emission Standards for Hazardous Air Pollutants (NESHAP)
Rules, available in Docket ID No. EPA-HQ-OAR-2018-0753.
Comment: One commenter thought that the EPA should provide a notice
and comment period only through a Federal Register document for all
future changes in reporting templates. According to the commenter, at
proposal, the EPA noted that the compliance reporting template for
engine test facilities will be available on the CEDRI website. At the
time of the proposal, the template was only available in the rule
docket. While stakeholders can review the template as
[[Page 34338]]
it exists currently, the commenter said that any future changes to the
template should be made available to affected reporters for comment
prior to being adopted. The commenter stated that facilities do not
regularly check the CEDRI website and would not be aware of any changes
to the template. If the EPA changes the template without notice, the
commenter said that facilities may use the wrong template or find they
are in noncompliance. The commenter noted that a notification of
proposed rules is required to be published in the Federal Register
pursuant to the CAA and the Administrative Procedures Act (APA). The
commenter cited both section 307(d)(3) of the CAA and section 553(b) of
the APA as support:
Section 307(d)(3) of the CAA states, in the case of any rule to
which this subsection applies, notice of proposed rulemaking shall be
published in the Federal Register, as provided under section 553(b) of
Title 5 [of the United States Code], shall be accompanied by a
statement of its basis and purpose and shall specify the period
available for public comment. (42 U.S.C. 7607(d)(3)).
Section 553(b) of the APA states that general notice of proposed
rulemaking shall be published in the Federal Register, unless persons
subject thereto are named and either personally served or otherwise
have actual notice thereof in accordance with law. Except when notice
or hearing is required by statute, it does not apply to interpretative
rules, general statements of policy, or rules of agency organization,
procedure, or practice, or when the agency for good cause finds (and
incorporates the finding and a brief statement of reasons therefor in
the rules issued) that notice and public procedure thereon are
impracticable, unnecessary, or contrary to the public interest. (5
U.S.C. 553(b).)
The commenter stated that none of the exceptions in the APA would
apply to any future changes in reporting templates and noted that the
Federal Register is the official publication for federal agencies to
publish changes in regulatory requirements. The commenter said that
companies typically monitor the Federal Register daily, but do not
typically subscribe to the Clearinghouse for Inventories and Emissions
Factors (CHIEF) Listserv or periodically review the CEDRI website. The
commenter said that it is not practical for companies to also review
the CHIEF Listserv and CEDRI websites and that posting revised
templates to these sites is not a ``legally-sufficient substitute for
the Federal Register.'' The commenter also said that the EPA should
provide notice of any proposed changes to electronic reporting
requirements in a Federal Register notice as this approach will provide
the regulated community with the notice that they need to review any
proposed regulatory changes, provide comments, and initiate compliance
plans. The commenter believed that posting to an EPA website does not
provide adequate notice that electronic reporting requirements have
changed and recommended that the EPA only make future changes to the
template if a Federal Register notice is issued and an opportunity for
public comment is provided.
Response: The EPA disagrees that future changes to a reporting
template require public notice and comment. This rulemaking establishes
the process the EPA will use to notify owners/operators of the
availability of revised forms and provided interested parties with an
opportunity to comment on that process. The fact that the commenters
prefer a different process does not mean that the EPA lacks the
authority to adopt the process proposed. We are making the CEDRI forms
consistent with the underlying regulations, and as such, the public has
already had a chance to review and comment on the content of these
reports. These underlying regulations establish clear and objective
criteria for EPA to apply in future non-rulemaking actions. The
application of regulatory criteria to future individual situations does
not require notice and comment rulemaking, either under section 307(d)
of the CAA or the APA.
The EPA has amended the template to display the date of creation
and revision number of the template. The date of the final rule is not
included in the template.
Comment: One commenter disagreed with the EPA's proposed extension
provisions for CEDRI outages or force majeure events. The commenter
thought the proposed extension provisions were ``unlawful and
arbitrary.'' The commenter argued that the extension provisions do not
set a firm deadline to either submit required reports or to request an
extension of the reporting deadline. The commenter also disagreed with
the provision: ``[t]he decision to accept the claim . . . and allow an
extension to the reporting deadline is solely within the discretion of
the Administrator'' and with the EPA's proposed definition of ``force
majeure event.'' The commenter believed these provisions were too broad
and vague and was concerned a facility would use these provisions to
evade the compliance reporting deadlines that assure compliance with
applicable standards.
The commenter also thought that the EPA lacked the authority to
allow exceptions or extensions for a ``force majeure event'' under the
CAA. The commenters said the CAA was enacted to protect public health
and welfare, to reduce pollution and the harm it causes, including
cancer and other serious health impacts from HAP. The commenter said
that creating a ``malfunction exemption'' contravenes the CAA. The
commenter noted that the concept of ``force majeure'' comes from
contract law and is not applicable to the CAA because it is not a
contract. The commenter noted that ``force majeure is a phrase coined
primarily for the convenience of contracting parties wishing to
describe the facts that create a contractual impossibility due to an
`Act of God.' (See 6 A. Corbin, Corbin on Contracts, section 1324
(1962)). As Corbin points out, this term is outmoded and serves no
useful purpose as a test of responsibility.'' Perlman v. Pioneer
Limited Partnership, 918 F.2d 1244, 1248 n.5 (5th Cir. 1990). The
commenter urged the EPA to not apply the concept of ``force majeure''
to any part of the CAA and said that doing so would be a variation of
the prior malfunction exemptions that were found to be unlawful under
the CAA. (See, e.g., Sierra Club v. EPA, 551 F.3d 1028 (D.C. Cir.
2008); NRDC, 749 F.3d at 1062-63). The commenter argued that there is
no ``force majeure'' exception allowed for non-compliance with the CAA
or its requirements, and that the EPA may not create an exemption
because ``the Clean Air Act and amendments thereto contain no force
majeure exception.'' U.S. v. Wheeling-Pittsburgh Steel Corp., 818 F.2d
1077, 1088 (3d Cir. 1987) (refusing to provide for a free-standing
``force majeure'' exception that would have exempted emission
violations that fell outside the contractual term used in a consent
decree due to the lack of legal basis to do so). The commenter noted
that the Court explained: ``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.'' Weyerhaeuser Co. v. Costle, 590 F.2d 1011,
1058 (D.C. Cir. 1978).
The commenter thought that while CEDRI outages and some events may
be out of a facility's control, the facility owners or operators have
many factors within their control. The commenter said the EPA failed to
evaluate the steps
[[Page 34339]]
a facility could take to predict and prevent delays in the reporting of
pollution exceedances related to foreseeable types of events it defines
as ``force majeure.'' If the EPA creates a ``force majeure event''
extension provision, the commenter recommended the facility be required
to prevent similar problems in the future and report what steps it will
take in the future to prevent the same problem from recurring. When
there is such a problem, the commenter argued, the need for prompt
reporting is important for ensuring actual emission exceedances end.
The commenter asserted that allowing an unreasonable extension or not
setting any deadline would be unlawful. The commenter thought reporting
was especially important during the types of events described by the
EPA. The commenter stated that reporting is necessary to protect public
health and welfare.
The commenter also said the EPA did not identify any problems or
burdens with the electronic reporting system that could justify an
extension. The commenter noted that in a proposed rule for the
Petroleum Refinery Sector, the EPA had stated: ``We note that the
submission of ERT formatted performance test and performance evaluation
reports using CEDRI is fully operational, and there are no known or
reported system issues . . . In addition, the CDX Helpdesk staff are
available during regular business hours to support industry users in
completing their submissions electronically using CEDRI.'' The
commenter also noted the EPA found that ``over 3,400 ERT files have
been submitted to the EPA through CEDRI,'' only 43 help calls were
received, and only 9 calls were referred to EPA staff for further
assistance (see, NESHAP: Petroleum Refinery Sector Amendments,
Proposal, 83 FR 15458, 15469 (April 10, 2018). The commenter said the
EPA's proposed extension was not based on evidence of any problem with
electronic reporting in the past, based on the record provided for
public comment. The commenter said that no evidence was provided
showing that a reporting problem could not be resolved through a case-
by-case resolution or that any harm has been caused by not having an
extension provision.
The commenter was concerned that delayed reporting and potentially
failure to report would cause harm because it delays compliance
assurance by the EPA, the states, and affected community residents. The
commenter thought the extension provision would undermine the health
and environmental protections of the standards, resulting in cancer and
acute health threats from engine test facilities. The commenter urged
the EPA to set a deadline for reporting and to assure that the
extension request allows only a temporary delay in reporting, such as a
10-day extension, rather than an open-ended extension with no deadline.
Response: The EPA disagrees with these comments. The final rule
requires electronic reporting for all facilities subject 40 CFR part
63, to subpart PPPPP as proposed. The commenter questioned the limited
flexibility the EPA proposed (and is finalizing), namely inclusion of
electronic reporting provisions for reporters facing circumstances
beyond their control. The commenter asserts the case-by-case extension
of report submittal deadlines is an ``unlawful exemption [from
compliance with] the emissions standards.'' This is not the case, as
explained below. The proposed provisions the commenter questions are as
follows (emphasis added):
(3) If you are required to electronically submit a report
through CEDRI in the EPA's CDX, and due to a planned or actual
outage of either the EPA's CEDRI or CDX systems within the period of
time beginning 5 business days prior to the date that the submission
is due, you will be or are precluded from accessing CEDRI or CDX and
submitting a required report within the time prescribed, you may
assert a claim of EPA system outage for failure to timely comply
with the reporting requirement. You must submit notification to the
Administrator in writing as soon as possible following the date you
first knew, or through due diligence should have known, that the
event may cause or caused a delay in reporting. You must provide to
the Administrator a written description identifying the date, time
and length of the outage; a rationale for attributing the delay in
reporting beyond the regulatory deadline to the EPA system outage;
describe the measures taken or to be taken to minimize the delay in
reporting; and identify a date by which you propose to report, or if
you have already met the reporting requirement at the time of the
notification, the date you reported. In any circumstance, the report
must be submitted electronically as soon as possible after the
outage is resolved. The decision to accept the claim of EPA system
outage and allow an extension to the reporting deadline is solely
within the discretion of the Administrator.
(4) If you are required to electronically submit a report through
CEDRI in the EPA's CDX and a force majeure event is about to occur,
occurs, or has occurred or there are lingering effects from such an
event within the period of time beginning 5 business days prior to the
date the submission is due, the owner or operator may assert a claim of
force majeure for failure to timely comply with the reporting
requirement. For the purposes of this section, a force majeure event is
defined as an event that will be or has been caused by circumstances
beyond the control of the affected facility, its contractors, or any
entity controlled by the affected facility that prevents you from
complying with the requirement to submit a report electronically within
the time period prescribed. Examples of such events are acts of nature
(e.g., hurricanes, earthquakes, or floods), acts of war or terrorism,
or equipment failure or safety hazard beyond the control of the
affected facility (e.g., large scale power outage). If you intend to
assert a claim of force majeure, you must submit notification to the
Administrator in writing as soon as possible following the date you
first knew, or through due diligence should have known, that the event
may cause or caused a delay in reporting. You must provide to the
Administrator a written description of the force majeure event and a
rationale for attributing the delay in reporting beyond the regulatory
deadline to the force majeure event; describe the measures taken or to
be taken to minimize the delay in reporting; and identify a date by
which you propose to report, or if you have already met the reporting
requirement at the time of the notification, the date you reported. In
any circumstance, the reporting must occur as soon as possible after
the force majeure event occurs. The decision to accept the claim of
force majeure and allow an extension to the reporting deadline is
solely within the discretion of the Administrator.
There is no exception or exemption to reporting, much less an
exemption from compliance with the numerical emission standards,
rather, this regulatory provision only sets out a method for requesting
an extension of the reporting deadline. Reporters are required to
justify their request and identify a reporting date. There is no
predetermined timeframe for the length of extension that can be
granted, as this is something best determined by the Administrator
(i.e., the EPA Administrator or delegated authority as defined in 40
CFR 63.2) when reviewing the circumstances surrounding the request.
Different circumstances may require a different length of extension for
electronic reporting. For example, a tropical storm may delay
electronic reporting for a day, but a Hurricane Katrina scale event may
delay electronic reporting for much longer, especially if the facility
has no power, and, as such, the owner or operator has no ability to
either access electronically stored data or to submit reports
electronically. The Administrator (or delegated authority)
[[Page 34340]]
will be the most knowledgeable of the events leading to the request for
extension and will assess whether an extension is appropriate, and, if
so, a reasonable length for the extension. The Administrator (or
delegated authority) may even request that the report be sent in
hardcopy until electronic reporting can be resumed. While no new fixed
duration deadline is set, the regulation requires that the report be
submitted electronically as soon as possible after the CEDRI outage or
after the force majeure event resolves.
The concept of force majeure is not arbitrary, as it has been
implemented since May 2007 within the CAA requirements through the
performance test extensions requirements provided in 40 CFR 63.7(a)(4)
and 60.8(a)(1). Like the performance test extensions, the approval of a
requested extension of an electronic reporting deadline is at the
discretion of the Administrator.
The EPA disagrees that the reporting extension will undermine
enforcement because the Administrator has full discretion to accept or
reject the claim of a CEDRI system outage or force majeure. As such, an
extension is not automatic and is agreed to on an individual basis by
the Administrator. If the Administrator determines that a facility has
not acted in good faith to reasonably report in a timely manner, the
Administrator can reject the claim and find that the failure to report
timely is a deviation from the regulation. CEDRI system outages are
infrequent, but the EPA knows when they occur and whether a facility's
claim is legitimate. Force majeure events (e.g., natural disasters
impacting a facility) are also usually well-known events.
Additionally, the ability to request a reporting extension does not
apply to a broad category of circumstances; on the contrary, the scope
for submitting an extension request for an electronic report is very
limited in that claims can only be made for an event outside of the
owner's or operator's control that occurs in the 5 business days prior
to the reporting deadline. The claim must then be approved by the
Administrator, and in approving such a claim, the Administrator would
agree that something outside the control of the owner or operator
prevented the owner or operator from meeting its reporting obligation.
In no circumstance does this electronic reporting extension allow for
the owner or operator to be out of compliance with the underlying
emissions standards.
The EPA disagrees with the commenter's assumption that the
requirement to report ``as soon as possible'' makes it likely that
reporting will be significantly delayed, may lead a facility to drag
its feet in submitting reports for an extended period, or may lead to a
facility never reporting information. Each request for an extension of
the electronic reporting deadline must be approved by the Administrator
(or delegated authority), and each request must state the time
requested for the extension as well as the dates and times at which the
unsuccessful attempt(s) to access CEDRI were made in the case of a
CEDRI outage. The EPA also disagrees that a delay in reporting due to a
CEDRI outage or a force majeure event would necessitate a delay in a
corrective action that would be taken to prevent harmful and unlawful
emission exceedances. The facility must remain in compliance with all
air emissions requirements and has an ongoing responsibility under the
general duty clause of 40 CFR 63.6(e) to operate and maintain any
affected source in a manner consistent with safety and good air
pollution practices for minimizing emissions. An extension of the
deadline for submitting an electronic report in no way eliminates
culpability for exceedances of emissions limitations or the requirement
to address them.
The EPA disagrees that the force majeure extension request must
require a facility to report what steps it will take in the future to
prevent the same problem from occurring. A force majeure event for the
purpose of electronic reporting is defined as ``. . . an event that
will be or has been caused by circumstances beyond the control of the
affected facility, its contractors, or any entity controlled by the
affected facility.'' Examples of such events are acts of nature and
acts of war or terrorism. By definition, force majeure events are not
something that a facility is able to control, and, thus, there is no
way for the facility to prevent it from happening.
The EPA disagrees that the existing statistics on the use of CEDRI
and e-reporting precludes the need for a provision to account for an
outage of the CEDRI system. Prudent management of electronic data
systems builds in allowances for unexpected, non-routine delays, such
as occurred on July 1, 2016, and October 20-23, 2017, and is consistent
with the already-existing provisions afforded for unexpected, non-
routine delays in performance testing (see 40 CFR 60.8(a)(1) and (2)
and 40 CFR 63.7(a)(4)). For both electronic reporting and performance
testing, owners or operators are to conduct and complete their
activities within a short window of time; the EPA believes that it is
prudent to allow owners or operators to make force majeure claims for
situations beyond their reasonable control. The EPA also disagrees that
incidental issues with questions on completing the form or the
procedures for accessing CEDRI for which the CEDRI Helpdesk is
available, are conditions that would be considered either force majeure
or a CEDRI system outage. The existence of the Helpdesk for answering
questions on procedures in submitting reports to CEDRI have no impact
on the availability of CEDRI in such a circumstance.
The purpose of these requests for extensions are to accommodate
owners and operators in cases where they cannot successfully submit a
report electronically for reasons that are beyond their control and
occur during a short window of time prior to the reporting deadline.
The extension is not automatic, and the Administrator retains the right
to accept or reject the request. The language was added as part of the
standard electronic reporting language based on numerous comments
received on the proposal for the Electronic Reporting and Recordkeeping
Requirements for the New Source Performance Standards (80 FR 15100,
March 20, 2015).
Additional comments and our specific responses can be found in the
comment summary and response document titled Summary of Public Comments
and Responses for the Residual Risk and Technology Review for Engine
Test Cells/Stands, which is available in the docket for this action.
4. What is the rationale for our final approach for the electronic
reporting provisions?
The EPA evaluated all of the comments on the EPA's proposed
amendments to the electronic reporting provisions. For the reasons
explained in the proposed rule (84 FR 20208, May 8, 2019), we have
determined the electronic submittal of the reports addressed in this
final rule will increase the usefulness of the data contained in those
reports, is in keeping with current trends in data availability and
transparency, will further assist in the protection of public health
and the environment, will improve compliance by facilitating the
ability of regulated facilities to demonstrate compliance with
requirements and by facilitating the ability of delegated state, local,
tribal, and territorial air agencies and the EPA to assess and
determine compliance, and will ultimately reduce burden on regulated
facilities, delegated air agencies, and the EPA. Electronic reporting
also eliminates paper-based, manual processes, thereby saving time
[[Page 34341]]
and resources, simplifying data entry, eliminating redundancies,
minimizing data reporting errors, and providing data quickly and
accurately to the affected facilities, air agencies, the EPA, and the
public. Moreover, electronic reporting is consistent with the EPA's
plan \6\[thinsp]to implement Executive Order 13563 and is in keeping
with the EPA's Agency-wide policy \7\[thinsp]developed in response to
the White House's Digital Government Strategy.\8\ For more information
on the benefits of electronic reporting, see the memorandum, Electronic
Reporting Requirements for New Source Performance Standards (NSPS) and
National Emission Standards for Hazardous Air Pollutants (NESHAP),
available in Docket ID No. EPA-HQ-OAR-2018-0753.
---------------------------------------------------------------------------
\6\ U.S. EPA. Final Plan for Periodic Retrospective Reviews,
August 2011. Available at: https://www.regulations.gov/document?D=EPA-HQ-OA-2011-0156-0154.
\7\ E-Reporting Policy Statement for EPA Regulations, September
2013. Available at: https://www.epa.gov/sites/production/files/2016-03/documents/epa-ereporting-policy-statement-2013-09-30.pdf.
\8\ Digital Government: Building a 21st Century Platform to
Better Serve the American People, May 2012. Available at: https://obamawhitehouse.archives.gov/sites/default/files/omb/egov/digital-government/digital-government.html.
---------------------------------------------------------------------------
E. Technical and Editorial Changes for the Engine Test Cells/Stands
Source Category
1. What did we propose for the Engine Test Cells/Stands source
category?
The EPA proposed the following technical and editorial changes to
the existing NESHAP for the source category:
Revising the monitoring requirements in 40 CFR 63.9307 to
add THC as a continuous emission monitoring option and to add
Performance Specification 8A and EPA Method 25A;
Revising the initial compliance requirements in 40 CFR
63.9320 to include a provision for the performance test to be used to
demonstrate compliance;
Revising Tables 3 and 4 to 40 CFR part 63, subpart PPPPP,
to add an alternative compliance option; and
Revising section 40 CFR 63.9350 to address the reporting
of performance tests and performance evaluations.
2. How did the technical and editorial changes change for the Engine
Test Cells/Stands source category?
Since proposal, the technical and editorial changes have not
changed.
3. What key comments did we receive on the technical and editorial
changes, and what are our responses?
While no comments were received on the particular technical and
editorial changes detailed above, additional comments of a technical
and editorial nature were received. Our specific responses to those
comments can be found in the document titled Summary of Public Comments
and Responses for the Residual Risk and Technology Review for Engine
Test Cells/Stands, which is available in the docket for this action.
4. What is the rationale for our final approach for the technical and
editorial changes?
Because no comments were received on the technical and editorial
changes that the EPA proposed, we determined that these changes should
be finalized as proposed.
F. Additional Issue on Which Comment Was Requested: Prior Approval for
an Aspect of Performance Testing
1. What did we propose for the Engine Test Cells/Stands source
category?
In the proposal, the EPA specifically solicited comment on an
aspect of initial performance testing. According to the existing
regulations, if an affected source owner or operator elects to comply
with the percent reduction emission limitation, an initial performance
test must be conducted to determine the capture and control
efficiencies of the equipment and to establish the operating limits to
be achieved on a continuous basis. Performance tests are to be
conducted under representative operating conditions, and the source is
required to document the operating conditions during the test and
explain why the conditions represent normal operation. In discussions
prior to our May 2019 proposal, industry stakeholders raised the issue
that, for facilities with multiple test cells/stands, it is difficult
to define ``normal'' operation due to the several types of engine tests
conducted, the varying operation conditions for the engine tests, the
number of cells/stands, different kinds of test fuels, and the complex
emission capture system. Thus, affected sources have felt the need to
request approval on the testing protocol prior to conducting the
performance tests to limit tests to representative cells. We requested
comment on whether this process of requesting prior approval for
determining what is considered ``normal'' operation for a specific
affected facility is reasonable and appropriate for the one-time
required performance test. More information concerning our request for
comment on this aspect of initial performance testing can be found in
the proposed rule (84 FR 20208, May 8, 2019).
2. How did the performance testing issue change for the Engine Test
Cells/Stands source category?
Since proposal, this issue has not changed.
3. What key comments did we receive on the performance testing issue,
and what are our responses?
One commenter commented more broadly on the issue of performance
testing.
Comment: One commenter recommended that the EPA streamline
requirements calling for Agency approval of alternate testing protocols
and monitoring. The commenter said that this requirement creates
unnecessary compliance complexity for facilities with multiple test
cells and further stated that it was difficult to comply with this
requirement when determining the capture efficiency for a cell that is
not a permanent total enclosure (PTE), which is the case for cells in
large complexes. The commenter said that in situations where there are
temporary total enclosures (TTE), demonstrating TTE as defined by EPA
Method 204 is challenging because of the size and set-up at a large
facility (e.g., approximately 90 cells). The gas-to-gas protocol, the
commenter said, is not practical to implement due to the size and
complexity of multiple cells within a large complex. The TTE
requirements cannot be met as prescribed because:
The test method requires the construction of a TTE over
all of the test cells in order to measure emissions at exhaust points
from the test cell building. With many cells and the volume of air flow
involved, construction of a TTE is impossible because the temporary
structure would be the size of a large building.
Measuring all of the emission points from a test cell
building at one location is not practical as this would require
simultaneous testing at one location of exhaust volume and THC
concentration from over 100 locations (90+ general ventilation exhaust
points, scavenge air exhaust points systems, emission analyzer vents,
and regenerative thermal oxidizers).
The low CO volume generated from scavenge air and air
handling units associated with the general ventilation system can be
difficult to measure accurately and background CO levels can interfere
with obtaining accurate
[[Page 34342]]
measurements for determining capture efficiency in testing TTE.
Approval is needed to limit tests to ``representative''
cells. From a practical perspective, the absence of a definition of
what is representative (e.g., test type, common engine type, common
fuel, CO measurement methods) results in delayed approvals from
regulatory authorities as there is no defined basis for approval.
Other TTE EPA Method 204 issues include:
[cir] A source must request alternative approval to deviate from
EPA Method 204 requirements to use a single analyzer. The rule does not
address the ability to use various calibration gases based on
concentration ranges for several capture points.
[cir] Current rule excludes an allowance for measuring CO instead
of VOC or THC, triggering the need for regulatory authority approval to
measure CO. In most cases, VOC is too low of a concentration to measure
from test cell operations.
[cir] When testing capture efficiency, an entity must lock room air
handling system in place in order to accurately measure air flow from
this source and generate valid data. This can trigger changes in
ambient conditions for the engine test.
To address these issues, the commenter recommended the EPA should:
1. Step 1: Define 100-percent capture to exclude general
ventilation, scavenge air systems, and test bench emissions. Based on
testing experience and data, these sources represent less than 1
percent of the emissions.
[cir] Due to the size, number, and configuration of test cells, it
is difficult to determine capture efficiency and meet the TTE
requirements.
[cir] Alternatively, the EPA could establish a default capture rate
for the de minimis emissions to avoid facilities having to undertake
costly testing when the capture is known to be nearly complete.
2. Step 2: If a PTE cannot be met and the gas-to-gas protocol and
TTE requirements are triggered:
[cir] Allow for a representative test and include a definition
describing the requirements for representative test conditions in order
to measure CO from various points from the enclosure. This would
include testing a representative test cycle (e.g., durability) on a
single common engine/fuel type.
[cir] Modify requirements to allow for multiple analyzers with
different measurement spans.
[cir] If testing of capture efficiency must be conducted, the test
method should allow for the locking of the room air handling system.
This is not considered normal operation but is necessary because
facilities cannot accurately measure air flow when the system is in a
constant state of adjusting.
[cir] Allow measurement of CO, not just THC or HAP.
Response: The EPA is not amending the test procedures and protocols
required by this subpart at this time. The EPA also notes that the
ability to use either alternative methods or deviations of methods may
be pursued on a case by case basis through the site-specific test plan
and the alternative method procedures of 40 CFR 63.7(e)(2). Sources may
also request approval of a broadly applicable alternative test method
through the EPA Measurement Technology Group.
4. What is the rationale for our final approach for the performance
testing issue?
The EPA evaluated all of the comments on the EPA's proposed changes
regarding initial performance testing. For the reasons explained
previously, we determined that no changes should be made to current
practice. Although affected sources may still request approval on the
testing protocol, this practice will continue to not be required.
V. Summary of Cost, Environmental, and Economic Impacts and Additional
Analyses Conducted
A. What are the affected facilities?
There are currently 59 engine test cells/stands facilities
operating in the United States that conduct engine testing operations
and are subject to the Engine Test Cells/Stands NESHAP. The 40 CFR part
63, subpart PPPPP, affected source is the collection of all equipment
and activities associated with engine test cells/stands used for
testing uninstalled stationary or uninstalled mobile engines located at
a major source of HAP emissions. A new or reconstructed affected source
is a completely new engine testing source that commenced construction
after May 14, 2002, or meets the definition of reconstruction and
commenced reconstruction after May 14, 2002.
B. What are the air quality impacts?
At the current level of control, emissions of total HAP from the
source category are estimated to be approximately 163 tpy. This
represents a reduction in HAP emissions of about 80 tpy due to the
current (2003) Engine Test Cells/Stands NESHAP. These final amendments
require all affected sources subject to the emission standards in the
Engine Test Cells/Stands NESHAP to operate without the SSM exemption.
We do not expect that eliminating the SSM exemption will result in
reduced emissions since the existing NESHAP requires that the operating
limits established during the performance test for demonstrating
continuous compliance must be met at all times.
Indirect or secondary air emissions impacts are impacts that would
result from the increased electricity usage associated with the
operation of control devices (i.e., increased secondary emissions of
criteria pollutants from power plants). Energy impacts consist of the
electricity and steam needed to operate control devices and other
equipment. The EPA expects no secondary air emissions impacts or energy
impacts from this rulemaking.
C. What are the cost impacts?
The EPA estimates that each facility in the source category will
experience costs as a result of the final amendments. These costs are
estimated as part of the reporting and recordkeeping costs of the final
rule. Each facility will experience costs to read and understand the
rule amendments. The total cost for this activity is estimated to be
$4,029 annually, inclusive of all affected entities. Facilities will
also experience costs associated with the elimination of the SSM
exemption (including labor hours required for re-evaluation of
previously developed SSM record systems), and costs associated with the
requirement to electronically submit performance test, performance
evaluation, and semi-annual compliance reports using CEDRI (including
labor hours needed to become familiar with CEDRI and the reporting
template for semi-annual compliance reports). There costs were also
estimated as part of the reporting and recordkeeping costs of the rule
amendments, however, we do not expect any net change in cost to result
from elimination of the SSM exemption or the addition of the electronic
reporting requirements. Therefore, the total estimated cost of this
action, beyond the costs that would have been incurred by industry
pursuant to the regulations in effect prior to this final rule, is
$4,029 annually.
D. What are the economic impacts?
Economic impact analyses focus on changes in market prices and
output levels. If changes in market prices and output levels in the
primary markets are significant enough, impacts on other markets may
also be examined. Both the magnitude of costs associated with a
[[Page 34343]]
rule and the distribution of those costs among affected facilities can
have a role in determining how the market will change in response to
the rule. As presented in section VI.C of this preamble, the total
estimated cost of this final rule is approximately $4,029 annually.
These costs are not expected to result in a significant market impact,
regardless of whether they are passed on to the purchaser or absorbed
by the firms.
E. What are the benefits?
The EPA is not finalizing changes to the emission limit
requirements and estimates the proposed changes to SSM, recordkeeping,
reporting, and monitoring are not economically significant. Because
these final amendments are not considered economically significant, as
defined by Executive Order 12866, and because no emission reductions
were estimated, we did not estimate any benefits from reducing
emissions.
F. What analysis of environmental justice did we conduct?
Executive Order 12898 (59 FR 7629, February 16, 1994) establishes
federal executive policy on environmental justice. Its main provision
directs federal agencies, to the greatest extent practicable and
permitted by law, to make environmental justice part of their mission
by identifying and addressing, as appropriate, disproportionately high
and adverse human health or environmental effects of their programs,
policies, and activities on minority populations and low-income
populations in the United States.
To examine the potential for any environmental justice issues that
might be associated with the source category, the EPA performed a
demographic analysis, which is an assessment of risks to individual
demographic groups of the populations living within 5 kilometers (km)
and within 50 km of the facilities. In the analysis, we evaluated the
distribution of HAP-related cancer and noncancer risks from the Engine
Test Cells/Stands source category across different demographic groups
within the populations living near facilities.\9\
---------------------------------------------------------------------------
\9\ Demographic groups included in the analysis are: White,
African American, Native American, other races and multiracial,
Hispanic or Latino, children 17 years of age and under, adults 18 to
64 years of age, adults 65 years of age and over, adults without a
high school diploma, people living below the poverty level, people
living two times the poverty level, and linguistically isolated
people.
---------------------------------------------------------------------------
The results of the demographic analysis are summarized in Table 3
below. These results, for various demographic groups, are based on the
estimated risk from actual emissions levels for the population living
within 50 km of the facilities.
Table 3--Engine Test Cells/Stands Demographic Risk Analysis Results
[Engine Test Cells/Stands source category: Demographic assessment results--50 km study area radius]
----------------------------------------------------------------------------------------------------------------
Population with
cancer risk
greater than or Population with
equal to 1 in 1 HI greater than 1
million
----------------------------------------------------------------------------------------------------------------
Nationwide Source category
----------------------------------------------------------------------------------------------------------------
Total Population....................................... 317,746,049 2,745 0
----------------------------------------------------------------------------------------------------------------
White and minority by percent
----------------------------------------------------------------------------------------------------------------
White.................................................. 62 90 0
Minority............................................... 38 10 0
----------------------------------------------------------------------------------------------------------------
Minority by percent
----------------------------------------------------------------------------------------------------------------
African American....................................... 12 3 0
Native American........................................ 0.8 0.4 0
Hispanic or Latino (includes white and nonwhite)....... 18 2 0
Other and Multiracial.................................. 7 4 0
----------------------------------------------------------------------------------------------------------------
Income by percent
----------------------------------------------------------------------------------------------------------------
Below Poverty Level.................................... 14 13 0
Above Poverty Level.................................... 86 87 0
----------------------------------------------------------------------------------------------------------------
Education by percent
----------------------------------------------------------------------------------------------------------------
Over 25 and without a High School Diploma.............. 14 9 0
Over 25 and with a High School Diploma................. 86 91 0
----------------------------------------------------------------------------------------------------------------
Linguistically isolated by percent
----------------------------------------------------------------------------------------------------------------
Linguistically Isolated................................ 6 2 0
----------------------------------------------------------------------------------------------------------------
The results of the Engine Test Cells/Stands source category
demographic analysis indicate that emissions from the source category
expose approximately 2,700 people to a cancer risk at or above 1-in-1
million and no people to a chronic noncancer TOSHI greater than 1 based
on actual or allowable emissions. Regarding cancer risk, the specific
demographic results indicate that the percentage of the population
potentially impacted by engine test cells/stands emissions is greater
than its corresponding nationwide percentage for the following
demographics: White (90 percent for the source category compared to 62
percent nationwide), Above Poverty Level (87
[[Page 34344]]
percent for the source category compared to 86 percent nationwide), and
Over 25 and with a High School Diploma (91 percent for the source
category compared to 86 percent nationwide). The remaining demographic
group percentages (including the groups explicitly designated as
minority) are the same or less than the corresponding nationwide
percentages.
The EPA, therefore, reaffirms its determination that this final
rule will not have disproportionately high and adverse human health or
environmental effects on minority, low income, or indigenous
populations because it maintains the level of environmental protection
for all affected populations without having any disproportionately high
and adverse human health or environmental effects on any population,
including any minority, low income, or indigenous populations.
The methodology and the results of the demographic analysis are
presented in a technical report, Risk and Technology Review Analysis of
Demographic Factors for Populations Living Near Engine Test Cells/
Stands Source Category Operations, available in the docket for this
action.
G. What analysis of children's environmental health did we conduct?
The EPA does not believe the environmental health or safety risks
addressed by this action present a disproportionate risk to children.
This action's health and risk assessments are contained in the
document, Residual Risk Assessment for the Engine Test Cells/Stands
Source Category in Support of the 2020 Risk and Technology Review Final
Rule, which is available in the docket for this action.
VI. Statutory and Executive Order Reviews
Additional information about these statutes and Executive Orders
can be found at https://www.epa.gov/laws-regulations/laws-and-executive-orders.
A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review
This action is not a significant regulatory action and was,
therefore, not submitted to the Office of Management and Budget (OMB)
for review.
B. Executive Order 13771: Reducing Regulations and Controlling
Regulatory Costs
This action is not an Executive Order 13771 regulatory action
because this action is not significant under Executive Order 12866.
C. Paperwork Reduction Act (PRA)
The information collection activities in this rule have been
submitted for approval to the Office of Management and Budget (OMB)
under the PRA. The Information Collection Request (ICR) document that
the EPA prepared has been assigned EPA ICR number 2066.09. You can find
a copy of the ICR in the docket for this rule, and it is briefly
summarized here. The information collection requirements are not
enforceable until OMB approves them.
We are finalizing changes to the reporting and recordkeeping
requirements for the Engine Test Cells/Stands NESHAP in the form of
eliminating the SSM reporting and SSM plan requirements and requiring
electronic submittal of all compliance reports (including performance
test reports). Any information submitted to the Agency for which a
claim of confidentiality is made will be safeguarded according to the
Agency policies set forth in title 40, chapter 1, part 2, subpart B--
Confidentiality of Business Information (see 40 CFR part 2; 41 FR
36902, September 1, 1976; amended by 43 FR 40000, September 8, 1978; 43
FR 42251, September 20, 1978; 44 FR 17674, March 23, 1979).
Respondents/affected entities: Respondents are owners or operators
of engine test cells/stands facilities subject to the Engine Test
Cells/Standards NESHAP.
Respondent's obligation to respond: Mandatory (40 CFR part 63,
subpart PPPPP).
Estimated number of respondents: On average, over the next 3 years,
approximately 12 existing major sources will be subject to these
standards, of which seven are subject to emission limits, monitoring,
recordkeeping, and reporting requirements. It is also estimated that
one additional respondent will become subject to the emission standards
over the 3-year period and two additional respondents will be subject
only to the notification requirements.
Frequency of response: On average, this collection is expected to
produce 18 responses per year.
Total estimated burden: 1,000 hours (per year). Burden is defined
at 5 CFR 1320.3(b).
Total estimated cost: $4,029 (per year), which is inclusive of the
cost of familiarization with regulatory requirements, plus $2,900
annualized capital or operation and maintenance costs. An agency may
not conduct or sponsor, and a person is not required to respond to, a
collection of information unless it displays a currently valid OMB
control number. The OMB control numbers for the EPA's regulations in 40
CFR are listed in 40 CFR part 9. When OMB approves this ICR, the Agency
will announce that approval in the Federal Register and publish a
technical amendment to 40 CFR part 9 to display the OMB control number
for the approved information collection activities contained in this
final rule.
D. Regulatory Flexibility Act (RFA)
I certify that this action will not have a significant economic
impact on a substantial number of small entities under the RFA. In
making this determination, the impact of concern is any significant
adverse economic impact on small entities. During the original
rulemaking, an ICR was sent to over 100 companies representing over 300
individual facilities. Using that information, along with discussion
with industry stakeholders, it was determined that there were no major
sources that were also owned by small entities. A review of the 59
facilities currently in this source category also concluded that none
are owned by small entities. Thus, this action will not impose any
requirements on small entities.
E. Unfunded Mandates Reform Act (UMRA)
This action does not contain any unfunded mandate as described in
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect
small governments. The action imposes no enforceable duty on any state,
local, or tribal governments or the private sector.
F. Executive Order 13132: Federalism
This action does not have federalism implications. It will not have
substantial direct effects on the states, on the relationship between
the national government and the states, or on the distribution of power
and responsibilities among the various levels of government.
G. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This action does not have tribal implications as specified in
Executive Order 13175. The EPA does not know of any engine test cell/
stand facilities owned or operated by Indian tribal governments. Thus,
Executive Order 13175 does not apply to this action.
[[Page 34345]]
H. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
This action is not subject to Executive Order 13045 because it is
not economically significant as defined in Executive Order 12866, and
because the EPA does not believe the environmental health or safety
risks addressed by this action present a disproportionate risk to
children. This action's health and risk assessments are contained in
sections III and IV of the proposal preamble (84 FR 20208, May 8, 2019)
and further documented in the risk report titled Residual Risk
Assessment for the Engine Test Cells/Stands Source Category in Support
of the 2020 Risk and Technology Review Final Rule, which is available
in the docket for this action.
I. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
This action is not subject to Executive Order 13211, because it is
not a significant regulatory action under Executive Order 12866.
J. National Technology Transfer and Advancement Act (NTTAA)
This rulemaking does not involve technical standards.
K. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
The EPA believes that this action does not have disproportionately
high and adverse human health or environmental effects on minority
populations, low-income populations, and/or indigenous peoples, as
specified in Executive Order 12898 (59 FR 7629, February 16, 1994).
The documentation for this decision is contained in section IV.B of
the proposal preamble (84 FR 20208, May 8, 2019), section IV.A of this
preamble, and the technical report, Risk and Technology Review Analysis
of Demographic Factors for Populations Living Near Engine Test Cells/
Stands Source Category Operations, which is available in the docket for
this rulemaking.
L. Congressional Review Act (CRA)
This action is subject to the CRA, and the EPA will submit a rule
report to each House of the Congress and to the Comptroller General of
the United States. This action is not a ``major rule'' as defined by 5
U.S.C. 804(2).
List of Subjects in 40 CFR Part 63
Environmental protection, Administrative practice and procedures,
Air pollution control, Engine test cells/stands, Hazardous substances,
Incorporation by reference, Intergovernmental relations, Reporting and
recordkeeping requirements.
Dated: March 11, 2020.
Andrew R. Wheeler,
Administrator.
For the reasons set forth in the preamble, 40 CFR part 63 is
amended as follows:
PART 63--NATIONAL EMISSION STANDARDS FOR HAZARDOUS AIR POLLUTANTS
FOR SOURCE CATEGORIES
0
1. The authority citation for part 63 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart PPPPP--National Emission Standards for Hazardous Air
Pollutants for Engine Test Cells/Stands
0
2. Section 63.9295 is amended by revising paragraph (a) to read as
follows:
Sec. 63.9295 When do I have to comply with this subpart?
(a) Affected sources. (1) If you start up your new or reconstructed
affected source before May 27, 2003, you must comply with the emission
limitations in this subpart no later than May 27, 2003; except that the
compliance date for the requirements promulgated at Sec. Sec. 63.9295,
63.9305, 63.9340, 63.9350, 63.9355, 63.9375, and Table 7 of 40 CFR part
63, subpart PPPPP, revised on June 3, 2020 is December 1, 2020.
(2) If you start up your new or reconstructed affected source on or
after May 27, 2003, you must comply with the emission limitations in
this subpart upon startup; except that if the initial startup of your
new or reconstructed affected source occurs after May 27, 2003, but on
or before May 8, 2019, the compliance date for the requirements
promulgated at Sec. Sec. 63.9295, 63.9305, 63.9340, 63.9350, 63.9355,
63.9375, and Table 7 of this subpart as revised on June 3, 2020 is
December 1, 2020.
(3) If the initial startup of your new or reconstructed affected
source occurs after May 8, 2019, the compliance date is June 3, 2020 or
the date of startup, whichever is later.
* * * * *
0
3. Section 63.9305 is revised to read as follows:
Sec. 63.9305 What are my general requirements for complying with this
subpart?
(a) Prior to December 1, 2020, you must be in compliance with the
emission limitation that applies to you at all times, except during
periods of startup, shutdown, or malfunction (SSM) of your control
device or associated monitoring equipment. On and after December 1,
2020, you must be in compliance with the applicable emission limitation
at all times.
(b) If you must comply with the emission limitation, you must
operate and maintain your engine test cell/stand, air pollution control
equipment, and monitoring equipment in a manner consistent with safety
and good air pollution control practices for minimizing emissions at
all times. The general duty to minimize emissions does not require the
owner or operator to make any further efforts to reduce emissions if
levels required by the applicable standard have been achieved.
Determination of whether a source is operating in compliance with
operation and maintenance requirements will be based on information
available to the Administrator that may include, but is not limited to,
monitoring results, review of operation and maintenance procedures,
review of operation and maintenance records, and inspection of the
affected source.
(c) For affected sources prior to December 1, 2020, you must
develop a written SSM plan (SSMP) for emission control devices and
associated monitoring equipment according to the provisions in Sec.
63.6(e)(3). The plan will apply only to emission control devices, and
not to engine test cells/stands.
0
4. Section 63.9307 is amended by revising paragraphs (c)(1), (2), and
(4) to read as follows:
Sec. 63.9307 What are my continuous emissions monitoring system
installation, operation, and maintenance requirements?
* * * * *
(c) * * *
(1) You must install, operate, and maintain each CEMS according to
the applicable Performance Specification (PS) of 40 CFR part 60,
appendix B (PS- 3, PS-4A, or PS-8).
(2) You must conduct a performance evaluation of each CEMS
according to the requirements in 40 CFR 63.8 and according to PS-3 of
40 CFR part 60, appendix B, using Reference Method 3A or 3B for the
O2 CEMS, and according to PS-4A of 40 CFR part 60, appendix
B, using Reference Method 10 or 10B for the CO CEMS, and according to
PS-8 of CFR part 60, appendix B, using Reference Method 25A for the THC
CEMS. If the fuel used in the engines being tested is natural gas, you
may use ASTM D 6522-00, Standard Test Method for Determination of
Nitrogen Oxides, Carbon Monoxide and Oxygen Concentrations in Emissions
from
[[Page 34346]]
Natural Gas Fired Reciprocating Engines, Combustion Turbines, Boilers,
and Process Heaters Using Portable Analyzers (incorporated by
reference, see Sec. 63.14). As an alternative to Method 3B, you may
use ANSI/ASME PTC 19.10-1981, ``Flue and Exhaust Gas Analyses [Part 10,
Instruments and Apparatus],'' (incorporated by reference, see Sec.
63.14).
* * * * *
(4) All CEMS data must be reduced as specified in Sec. 63.8(g)(2)
and recorded as CO or THC as carbon concentration in parts per million
by volume, dry basis (ppmvd), corrected to 15 percent O2
content.
* * * * *
0
5. Section 63.9320 is amended by revising paragraphs (b) and (c) to
read as follows:
Sec. 63.9320 What procedures must I use?
* * * * *
(b) You must conduct an initial performance evaluation of each
capture and control system according to Sec. Sec. 63.9321, 63.9322,
63.9323 and 63.9324, and each CEMS according to the requirements in 40
CFR 63.8 and according to the applicable Performance Specification of
40 CFR part 60, appendix B (PS-3, PS-4A, or PS-8).
(c) The initial demonstration of compliance with the carbon
monoxide (CO) or THC concentration limitation consists of either the
first 4-hour rolling average CO or THC concentration recorded after
completion of the CEMS performance evaluation if CEMS are installed or
the average of the test run averages during the initial performance
test. You must correct the CO or THC concentration at the outlet of the
engine test cell/stand or the emission control device to a dry basis
and to 15 percent O2 content according to Equation 1 of this
section:
[GRAPHIC] [TIFF OMITTED] TR03JN20.012
Where:
Cc = concentration of CO or THC, corrected to 15 percent
oxygen, ppmvd
Cunc = total uncorrected concentration of CO or THC,
ppmvd
%O2d = concentration of oxygen measured in gas stream,
dry basis, percent by volume
* * * * *
0
6. Section 63.9321 is amended by revising paragraph (a) introductory
text to read as follows:
Sec. 63.9321 What are the general requirements for performance tests?
(a) You must conduct each performance test required by Sec.
63.9310 under the conditions in this section unless you obtain a waiver
of the performance test according to the provisions in Sec. 63.7(h).
Prior to December 1, 2020, the performance test must also be conducted
according to the requirements in Sec. 63.7(e)(1).
* * * * *
0
7. Section 63.9330 is amended by revising paragraph (a) to read as
follows:
Sec. 63.9330 How do I demonstrate initial compliance with the
emission limitation?
(a) You must demonstrate initial compliance with the emission
limitation that applies to you according to Table 4 to this subpart.
* * * * *
0
8. Section 63.9340 is amended by revising paragraph (c) to read as
follows:
Sec. 63.9340 How do I demonstrate continuous compliance with the
emission limitations?
* * * * *
(c) Startups, shutdowns, and malfunctions:
(1) For affected sources prior to December 1, 2020, consistent with
Sec. Sec. 63.6(e) and 63.7(e)(1), deviations that occur during a
period of SSM of control devices and associated monitoring equipment
are not violations if you demonstrate to the Administrator's
satisfaction that you were operating in accordance with Sec.
63.6(e)(1).
(2) The Administrator will determine whether deviations that occur
during a period you identify as an SSM of control devices and
associated monitoring equipment are violations, according to the
provisions in Sec. 63.6(e).
0
9. Section 63.9350 is amended by:
0
a. Revising paragraph (a)(6) and;
0
b. Adding paragraph (a)(7);
0
c. Revising paragraph (c) introductory text;
0
d. Adding paragraph (c)(5);
0
e. Revising paragraph (d) introductory text;
0
f. Adding paragraph (d)(11);
0
g. Revising paragraph (e); and
0
h. Adding paragraphs (f) through (i).
The revisions and additions read as follows:
Sec. 63.9350 What reports must I submit and when?
(a) * * *
(6) For affected sources prior to December 1, 2020, if you had an
SSM of a control device or associated monitoring equipment during the
reporting period and you took actions consistent with your SSMP, the
compliance report must include the information in paragraphs Sec.
63.10(d)(5)(i).
(7) Beginning on December 1, 2020, submit all semiannual compliance
reports following the procedure specified in paragraph (g) of this
section.
* * * * *
(c) For each deviation from an emission limit, the semiannual
compliance report must include the information in paragraphs (b)(1)
through (3) of this section and the information included in paragraphs
(c)(1) through (4) of this section, except that on and after December
1, 2020 the semiannual compliance report must also include the
information included in paragraph (c)(5) of this section.
* * * * *
(5) An estimate of the quantity of each regulated pollutant emitted
over any emission limit, and a description of the method used to
estimate the emissions.
(d) For each CEMS or CPMS deviation, the semiannual compliance
report must include the information in paragraphs (b)(1) through (3) of
this section and the information included in paragraphs (d)(1) through
(10) of this section, except that on and after December 1, 2020, the
semiannual compliance report must also include the information included
in paragraph (d)(11) of this section.
* * * * *
(11) The total operating time of each new or reconstructed engine
test cell/stand during the reporting period.
(e) Prior to December 1, 2020, if you had an SSM of a control
device or associated monitoring equipment during the semiannual
reporting period that was not consistent with your SSMP, you must
submit an immediate SSM report according to the requirements in Sec.
63.10(d)(5)(ii).
(f) Within 60 days after the date of completing each performance
test or performance evaluation required by this subpart, you must
submit the results of the performance test following the procedures
specified in paragraphs (f)(1) through (3) of this section.
(1) Data collected or performance evaluations of CMS measuring
relative accuracy test audit (RATA) pollutants using test methods
supported by the EPA's Electronic Reporting Tool (ERT) as listed on the
EPA's ERT website (https://www.epa.gov/electronic-reporting-air-emissions/electronic-reporting-tool-ert) at the time of the test.
Submit the results of the performance test or performance evaluation to
the EPA via the Compliance and Emissions Data Reporting Interface
(CEDRI), which can be accessed through the EPA's Central Data Exchange
(CDX) (https://cdx.epa.gov/). The data must be submitted in a file
format generated through the use of the EPA's ERT.
[[Page 34347]]
Alternatively, you may submit an electronic file consistent with the
extensible markup language (XML) schema listed on the EPA's ERT
website.
(2) Data collected or performance evaluations of CMS measuring RATA
pollutants using test methods that are not supported by the EPA's ERT
as listed on the EPA's ERT website at the time of the test. The results
of the performance test or performance evaluation must be included as
an attachment in the ERT or an alternate electronic file consistent
with the XML schema listed on the EPA's ERT website. Submit the ERT
generated package or alternative file to the EPA via CEDRI.
(3) If you claim some of the information submitted under paragraph
(f) of this section is CBI, you must submit a complete file, including
information claimed to be CBI, to the EPA. The file must be generated
through the use of the EPA's ERT or an alternate electronic file
consistent with the XML schema listed on the EPA's ERT website. Submit
the file on a compact disc, flash drive, or other commonly used
electronic storage medium and clearly mark the medium as CBI. Mail the
electronic medium to U.S. EPA/OAQPS/CORE CBI Office, Attention: Group
Leader, Measurement Policy Group, MD C404-02, 4930 Old Page Rd.,
Durham, NC 27703. The same file with the CBI omitted must be submitted
to the EPA via the EPA's CDX as described in paragraph (f)(1) of this
section.
(g) If you are required to submit reports following the procedure
specified in this paragraph, you must submit reports to the EPA via
CEDRI, which can be accessed through the EPA's CDX (https://cdx.epa.gov/). You must use the appropriate electronic report template
on the CEDRI website (https://www.epa.gov/electronic-reporting-air-emissions/compliance-and-emissions-data-reporting-interface-cedri) for
this subpart. The report must be submitted by the deadline specified in
this subpart, regardless of the method in which the report is
submitted. If you claim some of the information required to be
submitted via CEDRI is CBI, submit a complete report, including
information claimed to be CBI, to the EPA. The report must be generated
using the appropriate form on the CEDRI website. Submit the file on a
compact disc, flash drive, or other commonly used electronic storage
medium and clearly mark the medium as CBI. Mail the electronic medium
to U.S. EPA/OAQPS/CORE CBI Office, Attention: Group Leader, Measurement
Policy Group, MD C404-02, 4930 Old Page Rd., Durham, NC 27703. The same
file with the CBI omitted must be submitted to the EPA via the EPA's
CDX as described earlier in this paragraph.
(h) If you are required to electronically submit a report through
CEDRI in the EPA's CDX, you may assert a claim of EPA system outage for
failure to timely comply with the reporting requirement. To assert a
claim of EPA system outage, you must meet the requirements outlined in
paragraphs (h)(1) through (7) of this section.
(1) You must have been or will be precluded from accessing CEDRI
and submitting a required report within the time prescribed due to an
outage of either the EPA's CEDRI or CDX systems.
(2) The outage must have occured within the period of time
beginning five business days prior to the date that the submission is
due.
(3) The outage may be planned or unplanned.
(4) You must submit notification to the Administrator in writing as
soon as possible following the date you first knew, or through due
diligence should have known, that the event may cause or has caused a
delay in reporting.
(5) You must provide to the Administrator a written description
identifying:
(i) The date(s) and time(s) when CDX or CEDRI was accessed and the
system was unavailable;
(ii) A rationale for attributing the delay in reporting beyond the
regulatory deadline to EPA system outage;
(iii) Measures taken or to be taken to minimize the delay in
reporting; and
(iv) The date by which you propose to report, or if you have
already met the reporting requirement at the time of the notification,
the date you reported.
(6) The decision to accept the claim of EPA system outage and allow
an extension to the reporting deadline is solely within the discretion
of the Administrator.
(7) In any circumstance, the report must be submitted
electronically as soon as possible after the outage is resolved.
(i) If you are required to electronically submit a report through
CEDRI in the EPA's CDX, you may assert a claim of force majeure for
failure to timely comply with the reporting requirement. To assert a
claim of force majuere, you must meet the requirements outlined in
paragraphs (i)(1) through (5) of this section.
(1) You may submit a claim if a force majeure event is about to
occur, occurs, or has occurred or there are lingering effects from such
an event within the period of time beginning five business days prior
to the date the submission is due. For the purposes of this section, a
force majeure event is defined as an event that will be or has been
caused by circumstances beyond the control of the affected facility,
its contractors, or any entity controlled by the affected facility that
prevents you from complying with the requirement to submit a report
electronically within the time period prescribed. Examples of such
events are acts of nature (e.g., hurricanes, earthquakes, or floods),
acts of war or terrorism, or equipment failure or safety hazard beyond
the control of the affected facility (e.g., large scale power outage).
(2) You must submit notification to the Administrator in writing as
soon as possible following the date you first knew, or through due
diligence should have known, that the event may cause or has caused a
delay in reporting.
(3) You must provide to the Administrator:
(i) A written description of the force majeure event;
(ii) A rationale for attributing the delay in reporting beyond the
regulatory deadline to the force majeure event;
(iii) Measures taken or to be taken to minimize the delay in
reporting; and
(iv) The date by which you propose to report, or if you have
already met the reporting requirement at the time of the notification,
the date you reported.
(4) The decision to accept the claim of force majeure and allow an
extension to the reporting deadline is solely within the discretion of
the Administrator.
(5) In any circumstance, the reporting must occur as soon as
possible after the force majeure event occurs.
0
10. Section 63.9355 is amended by:
0
a. Revising paragraphs (a) introductory text and (a)(3);
0
b. Adding paragraphs (a)(6) through (8);
0
c. Revising paragraphs (b)(2), (c) introductory text, and (c)(2) and
(4); and
0
d. Adding paragraph (c)(5).
The revisions and additions read as follows:
Sec. 63.9355 What records must I keep?
(a) You must keep the records as described in paragraphs (a)(1)
through (5) of this section. After June 3, 2020, you must also keep the
records as described in paragraphs (a)(6) through (8) of this section.
* * * * *
(3) Records of the occurrence and duration of each malfunction of
the air pollution control equipment, if applicable, as required in
Sec. 63.9355.
* * * * *
(6) In the event that an affected unit fails to meet an applicable
standard,
[[Page 34348]]
record the number of failures. For each failure record the date, time,
the cause, and duration of each failure.
(7) For each failure to meet an applicable standard, record and
retain a list of the affected sources or equipment, an estimate of the
quantity of each regulated pollutant emitted over any emission limit,
and a description of the method used to estimate the emissions.
(8) Record actions taken to minimize emissions in accordance with
Sec. 63.9305, and any corrective actions taken to return the affected
unit to its normal or usual manner of operation.
(b) * * *
(2) For affected sources prior to December 1, 2020, the records in
Sec. 63.6(e)(3)(iii) through (v) related to SSM.
* * * * *
(c) For each CEMS, you must keep the records as described in
paragraph (c)(1) through (5) of this section.
* * * * *
(2) Previous (i.e., superceded) versions of the performance
evaluation plan as required in paragraph (c)(5) of this section.
* * * * *
(4) For affected sources prior to December 1, 2020, the records in
Sec. 63.6(e)(3)(iii) through (v) related to SSM of the control device
and associated monitoring equipment.
(5) The owner or operator shall keep these written procedures on
record for the life of the affected source or until the affected source
is no longer subject to the provisions of this part, to be made
available for inspection, upon request, by the Administrator. If the
performance evaluation plan is revised, the owner or operator shall
keep previous (i.e., superseded) versions of the performance evaluation
plan on record to be made available for inspection, upon request, by
the Administrator, for a period of 5 years after each revision to the
plan. The program of corrective action should be included in the plan
required under Sec. 63.8(d)(2).
* * * * *
0
11. Section 63.9360 is amended by adding paragraph (d) to read as
follows;
Sec. 63.9360 In what form and how long must I keep my records?
* * * * *
(d) Any records required to be maintained by this part that are
submitted electronically via the EPA's CEDRI may be maintained in
electronic format. This ability to maintain electronic copies does not
affect the requirement for facilities to make records, data, and
reports available upon request to a delegated air agency or the EPA as
part of an on-site compliance evaluation.
0
12. Section 63.9375 is amended in the definition of ``Deviation'' by
revising paragraph (3) to read as follows:
Sec. 63.9375 What definitions apply to this subpart?
* * * * *
Deviation * * *
(3) Prior to December 1, 2020, fails to meet any emission
limitation or operating limit in this subpart during malfunction,
regardless of whether or not such failure is permitted by this subpart.
* * * * *
0
13. Table 3 to subpart PPPPP is amended by revising the entry ``1. The
CO or THC outlet concentration emission limitation'' to read as
follows:
Table 3 to Subpart PPPPP of Part 63--Requirements for Initial Compliance Demonstrations
*****
----------------------------------------------------------------------------------------------------------------
For each new or reconstructed
affected source complying with . . You must . . . Using . . . According to the following
. requirements . . .
----------------------------------------------------------------------------------------------------------------
1. The CO or THC outlet a. Demonstrate CO or i. EPA Methods 3A and You must demonstrate that
concentration emission limitation. THC emissions are 20 10 of appendix A to the outlet concentration
ppmvd or less. 40 CFR part 60 for CO of CO or THC emissions
measurement or EPA from the test cell/stand
Method 25A of or emission control device
appendix A to 40 CFR is 20 ppmvd or less,
part 60 for THC corrected to 15 percent O2
measurement; or content, using the average
of the test runs in the
performance test.
ii. A CEMS for CO or This demonstration is
THC and O2 at the conducted immediately
outlet of the engine following a successful
test cell/stand or performance evaluation of
emission control the CEMS as required in
device. Sec. 63.9320 (b). The
demonstration consists of
the first 4-hour rolling
average of measurements.
The CO or THC
concentration must be
corrected to 15 percent O2
content, dry basis using
Equation 1 in Sec.
63.9320.
* * * * * * *
----------------------------------------------------------------------------------------------------------------
0
14. Table 4 of subpart PPPPP is revised to read as follows:
Table 4 to Subpart PPPPP of Part 63--Initial Compliance With Emission
Limitations
[As stated in Sec. 63.9330, you must demonstrate initial compliance
with each emission limitation that applies to you according to the
following table:]
------------------------------------------------------------------------
You have demonstrated initial
For the . . . compliance if . . .
------------------------------------------------------------------------
1. CO or THC concentration The first 4-hour rolling average CO
emission limitation. or THC concentration is 20 ppmvd or
less, corrected to 15 percent O2
content if CEMS are installed or
the average of the test run
averages during the performance
test is 20 ppmvd or less, corrected
to 15 percent O2 content.
2. CO or THC percent reduction The first 4-hour rolling average
emission limitation. reduction in CO or THC is 96
percent or more, dry basis,
corrected to 15 percent O2 content.
------------------------------------------------------------------------
[[Page 34349]]
0
15. Table 5 of subpart PPPPP is revised to read as follows:
Table 5 to Subpart PPPPP of Part 63--Continuous Compliance With Emission
Limitations
[As stated in Sec. 63.9340, you must demonstrate continuous compliance
with each emission limitation that applies to you according to the
following table:]
------------------------------------------------------------------------
For the . . . You must . . . By . . .
------------------------------------------------------------------------
1. CO or THC concentration a. Demonstrate CO i. Collecting the
emission limitation. or THC emissions CPMS data according
are 20 ppmvd or to Sec.
less over each 4- 63.9306(a), reducing
hour rolling the measurements to
averaging period. 1-hour averages used
to calculate the 3-
hr block average; or
ii. Collecting the
CEMS data according
to Sec.
63.9307(a), reducing
the measurements to
1-hour averages,
correcting them to
15 percent O2
content, dry basis,
according to Sec.
63.9320.
2. CO or THC percent reduction a. Demonstrate a i. Collecting the
emission limitation. reduction in CO CPMS data according
or THC of 96 to Sec.
percent or more 63.9306(a), reducing
over each 4-hour the measurements to
rolling 1-hour averages; or
averaging period. ii. Collecting the
CEMS data according
to Sec.
63.9307(b), reducing
the measurements to
1-hour averages,
correcting them to
15 percent O2
content, dry basis,
calculating the CO
or THC percent
reduction according
to Sec. 63.9320.
------------------------------------------------------------------------
0
16. Table 7 of subpart PPPPP is revised to read as follows:
Table 7 to Subpart PPPPP of Part 63--Applicability of General Provisions to Subpart PPPPP
[As stated in 63.9365, you must comply with the General Provisions in Sec. Sec. 63.1 through 15 that apply to
you according to the following table:]
----------------------------------------------------------------------------------------------------------------
Applicable to subpart
Citation Subject PPPPP Explanation
----------------------------------------------------------------------------------------------------------------
Sec. 63.1(a)(1)-(12)........ General Applicability...... Yes...................
Sec. 63.1(b)(1)-(3)......... Initial Applicability Yes................... Applicability to subpart
Determination. PPPPP is also specified in
Sec. 63.9285.
Sec. 63.1(c)(1)............. Applicability After Yes...................
Standard Established.
Sec. 63.1(c)(2)............. Applicability of Permit No.................... Area sources are not
Program for Area Sources. subject to subpart PPPPP.
Sec. 63.1(c)(5)............. Notifications.............. Yes...................
Sec. 63.1(d)................ [Reserved].................
Sec. 63.1(e)................ Applicability of Permit Yes...................
Program Before Relevant
Standard is Set.
Sec. 63.2................... Definitions................ Yes................... Additional definitions are
specified in Sec.
63.9375.
Sec. 63.3................... Units and Abbreviations.... Yes...................
Sec. 63.4................... Prohibited Activities and Yes...................
Circumvention.
Sec. 63.5(a)................ Construction/Reconstruction Yes...................
Sec. 63.5(b)................ Requirements for Existing, Yes...................
Newly Constructed, and
Reconstructed Sources.
Sec. 63.5(d)................ Application for Approval of Yes...................
Construction/
Reconstruction.
Sec. 63.5(e)................ Approval of Construction/ Yes...................
Reconstruction.
Sec. 63.5(f)................ Approval of Construction/ Yes...................
Reconstruction based on
Prior State Review.
Sec. 63.6(a)................ Compliance With Standards Yes...................
and Maintenance
Requirements-Applicability.
Sec. 63.6(b)(1)-(7)......... Compliance Dates for New Yes................... Sec. 63.9295 specifies
and Reconstructed Sources. the compliance dates.
Sec. 63.6(c)(1)-(2)......... Compliance Dates for No.................... Subpart PPPPP does not
Existing Sources. establish standards for
existing sources.
Sec. 63.6(c)(5)............. Compliance Dates for Yes................... Sec. 63.9295(b) specifies
Existing Sources. the compliance date if a
new or reconstructed area
source becomes a major
source.
Sec. 63.6(e)(1)(i).......... Operation and Maintenance.. Yes before December 1, See Sec. 63.9305 for
2020. No on and after general duty requirement.
December 1, 2020.
Sec. 63.6(e)(1)(ii)......... Operation and Maintenance.. Yes before December 1,
2020. No on and after
December 1, 2020.
Sec. 63.6(e)(1)(iii)........ Operation and Maintenance.. Yes...................
Sec. 63.6(e)(3)............. SSM Plan................... Yes before December 1,
2020. No on and after
December 1, 2020.
[[Page 34350]]
Sec. 63.6(f)(1)............. Compliance Except During Yes before December 1,
SSM. 2020. No on and after
December 1, 2020.
Sec. 63.6(f)(2)-(3)......... Methods for Determining Yes...................
Compliance.
Sec. 63.6(g)(1)-(3)......... Use of Alternative Yes...................
Standards.
Sec. 63.6(h)................ Compliance With Opacity/ No.................... Subpart PPPPP does not
Visible Emission Standards. establish opacity
standards and does require
continuous opacity
monitoring systems (COMS).
Sec. 63.6(i)(1)-(16)........ Extension of Compliance.... No.................... Compliance extension
provisions apply to
existing sources which do
not have emission
limitations in subpart
PPPPP.
Sec. 63.6(j)................ Presidential Compliance Yes...................
Exemption.
Sec. 63.7(a)(1)-(2)......... Performance Test Dates..... Yes...................
Sec. 63.7(a)(3)............. Performance Test Required Yes...................
By the Administrator.
Sec. 63.7(b)-(d)............ Performance Test Yes...................
Requirements-Notification,
Quality Assurance,
Facilities Necessary for
Safe Testing, Conditions
During Testing.
Sec. 63.7(e)(1)............. Conditions for Conducting Yes before December 1,
Performance Tests. 2020. No, see Sec.
63.9321, on and after
December 1, 2020.
Sec. 63.7(e)(2)-(4)......... Conduct of Performance Yes...................
Tests.
Sec. 63.7(f)................ Alternative Test Methods... Yes...................
Sec. 63.7(g)-(h)............ Performance Testing Yes...................
Requirements-Data
Analysis, Recordkeeping,
Reporting, Waiver of Test.
Sec. 63.8(a)(1)-(2)......... Monitoring Requirements-- Yes................... Subpart PPPPP contains
Applicability. specific requirement for
monitoring at Sec.
63.9325.
Sec. 63.8(a)(4)............. Additional Monitoring No.................... Subpart PPPPP does not have
Requirements. monitoring requirement for
flares.
Sec. 63.8(b)................ Conduct of Monitoring...... Yes...................
Sec. 63.8(c)(1)............. Continuous Monitoring Yes...................
System (CMS) Operation and
Maintenance.
Sec. 63.8(c)(1)(i).......... General Duty to Minimize Yes before December 1,
Emissions and CMS 2020. No on and after
Operation. December 1, 2020.
Sec. 63.8(c)(1)(ii)......... Operation and Maintenance Yes...................
of CMS.
Sec. 63.8(c)(1)(iii)........ Requirement to Develop SSM Yes before December 1,
Plan for CMS. 2020. No on and after
December 1, 2020.
Sec. 63.8(c)(2)-(3)......... Monitoring System Yes...................
Installation.
Sec. 63.8(c)(4)............. CMS........................ No.................... Sec. 63.9335(a) and (b)
specifies the
requirements.
Sec. 63.8(c)(5)............. COMS....................... No.................... Subpart PPPPP does not have
opacity or VE standards.
Sec. 63.8(c)(6)-(8)......... CMS Requirements........... Yes................... Except that subpart PPPPP
does not require COMS.
Sec. 63.8(d)(1)-(2)......... CMS Quality Control........ Yes...................
Sec. 63.8(d)(3)............. CMS Quality Control........ Yes before December 1,
2020. No on and after
December 1, 2020.
Sec. 63.8(e)................ CMS Performance............ Yes................... Except for Sec.
63.8(e)(5)(ii) which
applies to COMS.
Sec. 63.8(f)(1)-(5)......... Alternative Monitoring Yes...................
Method.
Sec. 63.8(f)(6)............. Alternative to Relative Yes...................
Accuracy Test.
Sec. 63.8(g)................ Data Reduction............. Yes before December 1, Sec. Sec. 63.9335 and
2020. No on and after 63.9340 specify monitoring
December 1, 2020. data reduction.
Sec. 63.9(a)-(b)............ Notification Requirements.. Yes...................
Sec. 63.9(c)................ Request for Compliance No.................... Compliance extension to not
Extension. apply to new or
reconstructed sources.
Sec. 63.9(d)................ Notification of Special Yes...................
Compliance Requirements
for New Sources.
Sec. 63.9(e)................ Notification of Performance No.................... Subpart PPPPP does not
Test. require performance
testing.
Sec. 63.9(f)................ Notification of Opacity/VE No.................... Subpart PPPPP does not have
test. opacity/VE standards.
Sec. 63.9(g)(1)............. Additional Notifications Yes...................
When Using CMS.
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Sec. 63.9(g)(2)............. Additional Notifications No.................... Subpart PPPPP does not have
When Using CMS. opacity/VE standards.
Sec. 63.9(g)(3)............. Additional Notifications Yes...................
When Using CMS.
Sec. 63.9(h)................ Notification of Compliance Yes...................
Status.
Sec. 63.9(i)................ Adjustment of Submittal Yes...................
Deadlines.
Sec. 63.9(j)................ Change in Previous Yes...................
Information.
Sec. 63.10(a)............... Recordkeeping/Reporting.... Yes...................
Sec. 63.10(b)(1)............ General Recordkeeping Yes...................
Requirements.
Sec. 63.10(b)(2)(i)......... Recordkeeping of Occurrence Yes before December 1,
and Duration of Startups 2020. No on and after
and Shutdowns. December 1, 2020.
Sec. 63.10(b)(2)(ii)........ Recordkeeping of Occurrence Yes before December 1, See Sec. 63.9355 for
and Duration of 2020. No on and after recordkeeping of (1) date,
Malfunctions. December 1, 2020. time, and duration; (2)
listing of affected source
or equipment, and an
estimate of the quantity
of each regulated
pollutant emitted over the
standard; and (3) actions
to minimize emissions and
correct the failure.
Sec. 63.10(b)(2)(iii)....... Recordkeeping of Yes...................
Maintenance on Controls
and Monitoring Equipment.
Sec. 63.10(b)(2)(iv)-(v).... Actions Taken to Minimize Yes before December 1,
Emissions During SSM. 2020. No on and after
December 1, 2020.
Sec. 63.10(b)(2)(vi)-(xi)... CMS Records................ Yes...................
Sec. 63.10(b)(2)(xii)....... Records.................... Yes...................
Sec. 63.10(b)(2)(xiii)...... Records.................... Yes...................
Sec. 63.10(b)(2)(xiv)....... Records.................... Yes...................
Sec. 63.10(b)(3)............ Recordkeeping for Yes...................
Applicability
Determinations.
Sec. 63.10(c)(1)-(6), (9)- Additional Recordkeeping Yes...................
(14). for CMS.
Sec. 63.10(c)(7)-(8)........ Records of Excess Emissions No.................... Specific language is
and Parameter Monitoring located at Sec. 63.9355
Exceedances for CMS. of subpart PPPPP.
Sec. 63.10(c)(15)........... Records Regarding the SSM Yes before December 1,
Plan. 2020. No on and after
December 1, 2020.
Sec. 63.10(d)(1)............ General Reporting Yes...................
Requirements.
Sec. 63.10(d)(2)............ Report of Performance Test Yes...................
Results.
Sec. 63.10(d)(3)............ Reporting of Opacity or VE No.................... Subpart PPPPP does not have
Observations. opacity/VE standards.
Sec. 63.10(d)(4)............ Progress Reports for No.................... Compliance extensions do
Sources with Compliance not apply to new or
Extensions. reconstructed sources.
Sec. 63.10(d)(5)............ SSM Reports................ Yes before December 1, On and after December 1,
2020. No on and after 2020, see Sec. 63.9350
December 1, 2020. for malfunction reporting
requirements.
Sec. 63.10(e)(1) and (2)(i). Additional CMS Reports..... Yes...................
Sec. 63.10(e)(2)(ii)........ Additional CMS Reports..... No.................... Subpart PPPPP does not
require COMS.
Sec. 63.10(e)(3)............ Excess Emissions/CMS No.................... Specific language in
Performance Reports. located in Sec. 63.9350
of subpart PPPPP.
Sec. 63.10(e)(4)............ COMS Data Reports.......... No.................... Subpart PPPPP does not
require COMS.
Sec. 63.10(f)............... Waiver for Recordkeeping/ Yes...................
Reporting.
Sec. 63.11.................. Control Device Requirements/ No.................... Subpart PPPPP does not
Flares. specify use of flares for
compliance.
Sec. 63.12.................. State Authority and Yes...................
Delegations.
Sec. 63.13.................. Addresses.................. Yes...................
Sec. 63.14.................. Incorporation by Reference. Yes................... ASTM D 6522-00 and ANSI/
ASME PTC 19.10-1981
(incorporated by
reference--See Sec.
63.14).
Sec. 63.15.................. Availability of Information/ Yes...................
Confidentiality.
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[FR Doc. 2020-05909 Filed 6-2-20; 8:45 a.m.]
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