National Emission Standards for Hazardous Air Pollutants: Organic Liquids Distribution (Non-Gasoline)

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

This action promulgates national emission standards for hazardous air pollutants (NESHAP) for new and existing organic liquids distribution (OLD) (non-gasoline) operations, which are carried out at storage terminals, refineries, crude oil pipeline stations, and various manufacturing facilities. These NESHAP implement section 112(d) of the Clean Air Act (CAA) by requiring all OLD operations at plant sites that are major sources to meet hazardous air pollutant (HAP) emissions standards reflecting the application of the maximum achievable control technology (MACT).

The EPA estimates that approximately 5,300 megagrams per year (Mg/yr) (5,900 tons per year (tpy)) of HAP are emitted from facilities in this source category. Although a large number of organic HAP are emitted nationwide from these operations, benzene, ethylbenzene, toluene, vinyl chloride, and xylenes are among the most prevalent. These HAP have been shown to have a variety of carcinogenic and noncancer adverse health effects.

The EPA estimates that the final standards will result in the reduction of HAP emissions from major sources with OLD operations by 60 percent. The emissions reductions achieved by the final standards, when combined with the emissions reductions achieved by other similar standards, will provide improved protection to the public and achieve a primary goal of the CAA.

DATES:

This rule is effective February 3, 2004. The incorporation by reference of certain publications listed in today's final rule is approved by the Director of the Federal Register as of February 3, 2004.

ADDRESSES:

Docket. Docket Nos. A-98-13 and OAR-2003-0138 are located at the U.S. EPA Docket Center, EPA West, Room B102, 1301 Constitution Avenue NW., Washington, DC 20460.

FOR FURTHER INFORMATION CONTACT:

For further information concerning applicability and rule determinations, contact the appropriate State or local agency representative. If no State or local representative is available, contact the EPA Regional Office staff listed in 40 CFR 63.13. For information concerning the analyses performed in developing the NESHAP, contact Martha Smith, U.S. EPA, Emission Standards Division, Waste and Chemical Processes Group, C439-03, Research Triangle Park, North Carolina 27711, (919) 541-2421, smith.martha@epa.gov.

SUPPLEMENTARY INFORMATION:

Regulated Entities. Categories and entities potentially regulated by this action include:

This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be regulated by this action. To determine whether your facility is regulated by this action, you should examine the applicability criteria in § 63.2334 of the final rule. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed in the preceding FOR FURTHER INFORMATION CONTACT section.

Docket. We have established an official public docket for this action under Docket ID Nos. A-98-13 and OAR-2003-0138. The official public docket consists of the documents specifically referenced in this action, any public comments received, and other information related to this action. All items may not be listed under both docket numbers, so interested parties should inspect both docket numbers to ensure that they have received all materials relevant to the final rule. Although a part of the official docket, the public docket does not include Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. The official public docket is the collection of materials that is available for public viewing at the Office of Air and Radiation Docket and Information Center (Air Docket) in the EPA Docket Center, (EPA/DC) EPA West, Room B102, 1301 Constitution Avenue NW, Washington, DC. The EPA Docket Center Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744. The telephone number for the Air Docket is (202) 566-1742. A reasonable fee may be charged for copying docket materials.

An electronic version of the public docket is available through EPA's electronic public docket and comment system, EPA Dockets. You may use EPA Dockets at http://www.epa.gov/edocket/ to view public comments, to access the index listing of the contents of the official public docket, and to access those documents in the public docket that are available electronically. Once in the system, select “search,” then key in the appropriate docket identification number. Although not all docket materials may be available electronically, you may still access any of the publicly available docket materials through the docket facility in the above paragraph entitled Docket.

WorldWide Web (WWW). In addition to being available in the docket, an electronic copy of today's final NESHAP will also be available on the WWW through the Technology Transfer Network (TTN). Following the Administrator's signature, a copy of the NESHAP will be posted on the TTN's policy and guidance page for newly proposed or promulgated rules at http://www.epa.gov/ttn/oarpg. The TTN provides information and technology exchange in various areas of air pollution control. If more information regarding the TTN is needed, call the TTN HELP line at (919) 541-5384.

Judicial Review. Under section 307(b)(1) of the CAA, judicial review of the final NESHAP is available only by filing a petition for review in the U.S. Court of Appeals for the District of Columbia Circuit by April 5, 2004. Under section 307(d)(7)(B) of the CAA, only an objection to a rule or procedure raised with reasonable specificity during the period for public comment can be raised during judicial review. Moreover, under section 307(b)(2) of the CAA, the requirements established by the final rule may not be challenged separately in any civil or criminal proceeding brought to enforce these requirements.

Outline. The information presented in this preamble is organized as follows:

I. Introduction

A. What Is the Purpose of NESHAP?

B. What Is the Source of Authority for Development of NESHAP?

C. What Processes and Operations Are Included in the OLD (Non-gasoline) Source Category?

II. Summary of the Final OLD NESHAP

A. What Source Categories and Subcategories Are Affected by the Final OLD NESHAP?

B. What Are the Primary Sources of HAP Emissions and What Are the Emissions?

C. What Is the Affected Source?

D. What Are the HAP Emissions Limits, Operating Limits, and Other Standards?

E. When Must I Comply With the OLD NESHAP?

F. What Are the Testing and Initial Compliance Requirements?

G. What Are the Continuous Compliance Requirements?

H. What Are the Notification, Reporting, and Recordkeeping Requirements?

III. Summary of Environmental, Energy, and Economic Impacts

A. What Facilities Are Affected by These Final NESHAP?

B. What Are the Air Quality Impacts?

C. What Are the Water Quality Impacts?

D. What Are the Solid and Hazardous Waste Impacts?

E. What Are the Energy Impacts?

F. What Are the Cost Impacts?

G. What Are the Economic Impacts?

IV. Summary of Rule Differences From Proposal

A. Rule Applicability

B. Compliance Demonstrations

C. Emission Limitations and Work Practice Standards

D. Monitoring, Recordkeeping, and Reporting

V. Summary of Responses to Major Comments

A. Rule Applicability

B. Emission Limitations and Work Practice Standards

C. Testing, Compliance Requirements, and Monitoring

D. Notifications, Reports, and Records

E. Definitions

VI. Statutory and Executive Order Reviews

A. Executive Order 12866, Regulatory Planning and Review

B. Paperwork Reduction Act

C. Regulatory Flexibility Analysis

D. Unfunded Mandates Reform Act

E. Executive Order 13132: Federalism

F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments

G. Executive Order 13045: Protection of Children From Environmental Health and Safety Risks

H. Executive Order 13211: Actions That Significantly Affect Energy Supply: Distribution, or Use

I. National Technology Transfer and Advancement Act

J. Congressional Review Act

I. Introduction

A. What Is the Purpose of NESHAP?

The purpose of the final NESHAP is to protect the public health and the environment by reducing emissions of HAP from operations that distribute organic liquids.

B. What Is the Source of Authority for Development of NESHAP?

Section 112 of the CAA requires us to list categories and subcategories of major sources and area sources of HAP and to establish NESHAP for the listed source categories and subcategories. Organic liquids distribution (non-gasoline) (major sources only) was included on the initial list of source categories published on July 16, 1992 (57 FR 31576). Major sources of HAP are those that have the potential to emit 10 tpy or more of any one HAP or 25 tpy or more of any combination of HAP.

Section 112 (d)(2) of the CAA requires NESHAP to reflect the maximum degree of reduction in emissions of HAP that is achievable. This level of control is commonly referred to as the MACT.

The MACT floor is the minimum control level allowed for NESHAP. This concept appears in section 112(d)(3) of the CAA. For new sources, the MACT floor cannot be less stringent than the HAP emissions control that is achieved in practice by the best-controlled similar source. The MACT standards for existing sources can be less stringent than standards for new sources, but they cannot be less stringent than the average HAP emissions limitation achieved by the best-performing 12 percent of existing sources in the category or subcategory (or by the best-performing five sources for categories or subcategories with fewer than 30 sources).

In developing MACT, we also consider control options that are more stringent than the floor. We may establish standards more stringent than the floor based on the consideration of cost of achieving the HAP emissions reductions, any nonair quality health and environmental impacts, and energy requirements, under CAA section 112(d)(2).

The NESHAP for organic liquids distribution were proposed on April 2, 2002 (67 FR 15674). This action announces EPA's final decisions on the NESHAP.

C. What Processes and Operations Are Included in the OLD (Non-gasoline) Source Category?

The OLD (non-gasoline) source category involves the distribution of organic liquids into, out of, or within a plant site. The distribution activities include the storage of organic liquids in storage tanks not subject to other 40 CFR part 63 standards and transfers into or out of the tanks from or to cargo tanks, containers, and pipelines. Organic liquids are those non-crude oil liquids that contain at least 5 percent by weight of any combination of the 98 HAP listed in Table 1 to subpart EEEE of part 63, and have a total liquid vapor pressure of 0.7 kilopascals (0.1 pound per square inch absolute (psia)) or greater, and all crude oils downstream of the first point of custody transfer. For the purposes of the OLD NESHAP, organic liquids do not include gasoline, fuels that are consumed or dispensed on the plant site, kerosene (No. 1 distillate oil), diesel (No. 2 distillate oil), asphalt, and heavier distillate oils and fuel oils, hazardous waste, wastewater, or ballast water. Emission sources controlled by the OLD NESHAP are storage tanks, transfer operations, transport vehicles while being loaded, and equipment leak components (valves, pumps, and sampling connections) that have the potential to leak.

The types of organic liquids and emission sources covered by the OLD NESHAP are frequently found at many types of facilities that are already subject to other NESHAP. If an emission source is in organic liquid distribution service and is already subject to an existing 40 CFR part 63 NESHAP, then that emission source is not subject to the OLD NESHAP.

II. Summary of the Final OLD NESHAP

A. What Source Categories and Subcategories Are Affected by the Final OLD NESHAP?

Today's final rule applies to the OLD source category. We did not develop any subcategories. However, OLD operations that do not meet the specified applicability criteria for relevant emission limitations and work practice standards contained in the final rule are not required to apply emission reduction measures:

B. What Are the Primary Sources of HAP Emissions and What Are the Emissions?

The primary sources of HAP emissions from the OLD source category are the loss of HAP during the filling of storage tanks with organic liquids, storage of organic liquid in storage tanks, vapor displacement during the loading of organic liquids into transport vehicles and containers, and vapor leakage from transport vehicles at transfer racks during loadings of these vehicles. The HAP emissions are also the result of leaks from equipment such as valves, pumps, and sampling connection systems. Total baseline HAP emissions from the OLD source category are approximately 5,900 tpy.

C. What Is the Affected Source?

We have defined the affected source broadly to be the collection of activities and equipment used to distribute organic liquids into, out of, or within a major source plant site. This affected source is termed the “organic liquids distribution (OLD) operation.” Four types of emission sources are included in the affected source: storage tanks storing organic liquids; transfer racks at which organic liquids are loaded into or unloaded out of transport vehicles and/or containers; the transport vehicles themselves while they are loading or unloading organic liquids at transfer racks; and equipment leak components in organic liquids service that are associated with pipelines and with storage tanks and transfer racks storing, loading, or unloading organic liquids.

Applicability of the final standards is not restricted to any specific industries, but to each OLD operation that meets the applicability criteria of the final rule. The final standards do not apply to any emission source that is subject to another 40 CFR part 63 rule.

The liquids regulated by the final rule consist of non-crude oil organic liquids that contain at least 5 percent by weight of any combination of the organic HAP compounds listed in Table 1 to subpart EEEE of part 63 and have a total liquid vapor pressure of 0.1 psia or greater, plus all crude oils downstream of the first point of custody transfer. Gasoline is specifically excluded from coverage by the final rule as are fuels consumed or dispensed on the plant site as well as kerosene (No. 1 distillate oil), diesel (No. 2 distillate oil), asphalt, and heavier distillate oils and fuel oils.

Regulatory overlaps are specifically addressed in the final rule. Many of the facilities potentially affected by the final OLD NESHAP contain activities and equipment (i.e., certain storage tanks, transfer racks, and equipment components) that are already subject to other Federal air standards (such as 40 CFR part 60, subpart Kb, for storage tanks, or subpart GGG or FFFF of 40 CFR part 63). The final rule clarifies that emission sources subject to other 40 CFR part 63 NESHAP are not subject to the OLD NESHAP. The final rule also clarifies that sources subject to other non-MACT rules must comply with the requirements of the OLD NESHAP as well as the other rules.

D. What Are the HAP Emission Limits, Operating Limits, and Other Standards?

We are promulgating the requirements of the final NESHAP in the form of HAP emission limits (i.e., percent reduction or exhaust concentration), operating limits, and work practice standards. The work practice standards are a combination of design, equipment, and operational standards.

The final NESHAP contain emission standards for storage tanks, transfer racks, transport vehicles, and equipment components at existing and new OLD operations.

The standards for storage tanks apply to tanks storing organic liquids and meeting the tank capacity and liquid HAP vapor pressure applicability criteria given in Table 2 to subpart EEEE of part 63. You have three options for control. First, you may install a closed vent system and control device with at least 95 percent control efficiency for the organic HAP listed in Table 1 to subpart EEEE of part 63. You may also choose to demonstrate that the measurement of total organic compounds (TOC) is an appropriate surrogate for organic HAP. As an alternative option to the 95 percent standard, combustion devices may meet an exhaust concentration limit of 20 parts per million by volume (ppmv) of organic HAP or TOC. Second, you may capture and route emissions to a fuel gas system or back into a process. Third, you may meet a work practice standard by using a compliant internal or external floating roof in the affected storage tank. The tank size and liquid vapor pressure applicability criteria defining tanks subject to emission reduction requirements are different for tanks at existing or new affected sources.

The owner or operator will have to install a continuous monitoring system (CMS) and establish operating limits for each control device used to control storage tanks. The CMS may be of a type to measure either organic concentration in the gas stream or an operating parameter (such as fire box temperature) of the control device. A site-specific monitoring plan must be developed and submitted by the owner or operator for each emission source.

The emission limit for transfer racks is a closed vent system and control device achieving a control efficiency of at least 98 percent for the organic HAP listed in Table 1 to subpart EEEE of part 63. You may also utilize a vapor balancing system to achieve the required control efficiency. You may also choose to demonstrate that the measurement of TOC is an appropriate surrogate for organic HAP. As an alternative option to the 98 percent standard, combustion devices may meet an exhaust concentration limit of 20 ppmv of organic HAP or TOC. Only transfer racks meeting the specified applicability criteria in the final rule are required to implement emission reduction measures. The same emission limit applies to affected transfer racks at both existing and new affected sources.

The same requirements for installing a CMS and establishing operating limits for the control device applicable to storage tanks also apply to the control systems installed on transfer racks.

A work practice standard applies to pumps, valves, and sampling connection systems. These equipment leak components in organic liquids service must be included in a leak detection and repair (LDAR) program which requires the use of a detection instrument. The term “in organic liquid service” is defined in the final rule to mean an equipment leak component that contains or contacts organic liquids having 5 percent by weight or greater of the organic HAP listed in Table 1 to subpart EEEE of part 63. Owners and operators have the option of applying the provisions from 40 CFR part 63, subpart TT, subpart UU, or subpart H for their LDAR program. The LDAR standard applies to equipment leak components at both existing and new affected sources.

A work practice standard applies to transport vehicles (cargo tanks and tank cars) loading at affected transfer racks. Each of these vehicles must have current vapor tightness certification indicating that it has been properly tested for vapor tightness. If the vehicle is equipped with vapor collection equipment, the vehicle must be tested using EPA Method 27 on an annual basis. For vehicles not so equipped, the Department of Transportation (DOT) leak tightness standards apply, and current certification indicating that these standards have been met must be retained by the owner or operator for each vehicle that loads at affected transfer racks whether the source owns the vehicle or not. The owner or operator is not required to test transport vehicles he or she does not own, but must take adequate steps to ensure that uncertified vehicles are not loaded at affected racks. These work practice standards are the same for both existing and new affected sources.

E. When Must I Comply With the OLD NESHAP?

We are requiring that all existing affected sources comply by February 5, 2007, except for floating roof storage tanks that do not initially meet the equipment standard for storage tanks in the final rule. These tanks must be in compliance following their next degassing and cleaning, or by February 3, 2014, whichever is sooner. If the first degassing and cleaning activity occurs during the 3 years following February 3, 2004, the compliance date is February 5, 2007. Existing area sources that increase their HAP emissions or their potential to emit such that they become major sources of HAP, and thus affected sources, must be in compliance within 3 years after the date they become major sources.

Any affected source that commenced construction after April 2, 2002, at a site where there were no existing OLD operations, is a new affected source. Any affected source that commenced reconstruction after April 2, 2002, at a site that was an existing OLD source, is a reconstructed source. Emissions sources at new and reconstructed affected sources that are now in operation must be in compliance on February 3, 2004, with certain exceptions. These exceptions are due to the fact that the final rule applies to some affected sources and emission sources that would not have been covered by the proposed rule, and that in some cases the final emission standards are more stringent than were proposed. In cases where an emission source at a now-operating new or reconstructed affected source would not have been required to be controlled under the proposed rule but is required to be controlled under the final rule, the emission source must be in compliance by February 5, 2007. Where an emission source at such a new or reconstructed affected source would have been subject to a less stringent control requirement under the proposed rule than applies under the final rule, the emission source must be in compliance with the final rule's requirement by February 5, 2007, and in the interim must comply with the less stringent control requirement as proposed.

New or reconstructed sources that commence construction or reconstruction after February 3, 2004 must comply upon startup.

F. What Are the Testing and Initial Compliance Requirements?

To determine the applicability of the final standards to individual operations, each OLD operation must evaluate whether any of their distributed liquids contain less than 5 percent HAP by weight and, thus, do not meet the definition of an organic liquid under the final rule. The specified test method for this is EPA Method 311 of 40 CFR part 63, appendix A, or other methods approved by the Administrator. An owner or operator may use other means (such as voluntary consensus standard methods, material safety data sheets (MSDS), or certified product data sheets) for determining the HAP content. However, if the results of an analysis by EPA Method 311 (or other approved test method) are different from the HAP content determined by another means, the EPA Method 311 (or other approved test method) results will govern compliance determinations.

Control devices used to comply with the final standards are subject to a performance test to demonstrate initial compliance with the emission limits, except that a design evaluation, conducted according to 40 CFR part 63 subpart SS, may be used for nonflare control devices.

The test methods applicable to control devices include EPA Methods 18, 25, and 25A of 40 CFR part 60, appendix A, and EPA Method 316 of 40 CFR part 63, appendix A, depending on the constituents of the gas stream being controlled and the format of the standard (organic HAP or TOC) the facility selects for its compliance demonstration. Floating roof tanks are subject to visual and seal gap inspections to determine initial compliance with the tank work practice standards. For the LDAR program for equipment components, EPA Method 21 of 40 CFR part 60, appendix A, is applicable.

Initial compliance with the emission limits for storage tanks and transfer racks consists of demonstrating that the control device achieves the required 95 or 98 percent control efficiency for organic HAP (or TOC, if used as a documented surrogate) or 20 ppmv exhaust concentration for combustion devices. The required percentage control efficiency must be applied to the Table 1 to subpart EEEE of part 63 HAP concentration found at the inlet to the control device.

Work practice standards apply to storage tanks, transfer racks, transport vehicles, and equipment components. You must perform a visual inspection before filling internal floating roof tanks. You must also conduct a measurement of seal gaps for external floating roof tanks within 90 days after filling. For transfer racks, you must ensure that vapor balancing systems or equipment for routing emissions to a fuel gas system or back to a process are properly designed and operated. For transport vehicles, you must perform vapor tightness testing for vehicles that you own and maintain documentation for all affected vehicles certifying that they are vapor-tight. Finally, for the equipment LDAR program, you must identify which 40 CFR part 63 subpart you are complying with and keep a record identifying the selected subpart.

G. What Are the Continuous Compliance Requirements?

If you use a control device, we are requiring that you monitor and record the operating parameters established during the initial performance test and calculate operating parameter values averaged on a daily basis. Continuous compliance is demonstrated if you collect CMS data as specified and maintain the operating limits established during the design evaluation or performance test.

If you are subject to work practice standards, we are requiring that you demonstrate continuous compliance by performing the required work practices and by keeping the records required to show that you are in compliance. For storage tanks, you must continue to perform the applicable inspections and seal gap measurement to ensure that the floating roofs continue to provide the proper control. For transport vehicles, you must continue performing the required vapor tightness testing on vehicles that you own and take steps to ensure that all transport vehicles loading at the OLD operation have the required certification. For equipment components, you must perform the required monitoring, keep the required records, and file the required reports consistent with the LDAR program you selected for the equipment components in the affected source.

H. What Are the Notification, Reporting, and Recordkeeping Requirements?

The notifications, records, and reports required by the final rule are generally consistent with the requirements of the General Provisions of subpart A of 40 CFR part 63. Two basic types of reports are required: notifications (such as the Initial Notification and the Notification of Compliance Status) and semiannual compliance, or periodic, reports. The Initial Notification apprises the permitting authority of applicability for existing sources or of construction for new sources.

The Notification of Compliance Status must be submitted within 60 days after the compliance demonstration activity has been completed. This report contains the results of the initial performance test, as well as all calculations and analyses used to show that the affected source has achieved and will continue to achieve compliance.

You are required to describe in your semiannual compliance reports any deviations of monitored parameters from reference values; failures to comply with the startup, shutdown, and malfunction (SSM) plan for control devices; and results of LDAR monitoring and storage tank inspections. These reports are also used to notify the permitting authority of any changes in CMS, processes, or controls since the last reporting period.

You are required to keep a copy of each notification and report, along with supporting documentation, for 5 years. Of these 5 years, the 2 most recent years must be kept on-site. The final rule allows electronic recordkeeping; however, you must be able to access all required records in a timely manner. You must keep records related to SSM, records of performance tests, and records for each continuous monitoring system. If you must comply with work practice standards, you also need to keep records for 5 years (the 2 most recent years must be kept on-site) certifying that you are in compliance with the work practices.

III. Summary of Environmental, Energy, and Economic Impacts

A. What Facilities Are Affected by the Final OLD NESHAP?

Facilities affected by the final OLD NESHAP are those facilities that carry out organic liquid distribution activities. Most of these facilities can be grouped under three general categories: stand-alone (usually for-hire) storage terminals; OLD operations collocated with a petroleum refinery, a chemical manufacturing plant site, or other manufacturing plant site; and crude oil pipeline pumping or breakout stations (containing crude oil tankage).

We estimate that in 1997, the baseline year for the final standards, there were approximately 279 collocated OLD operations, 86 stand-alone storage terminals, and 16 crude oil pipeline stations, for a total of approximately 381 existing major source plant sites with OLD operations.

B. What Are the Air Quality Impacts?

The 1997 baseline HAP emissions from OLD operations are approximately 5,900 tpy. The final OLD NESHAP will reduce HAP from existing major sources by 3,500 tpy, a reduction of 60 percent. Such emission reductions are likely to reduce the risk of adverse effects of HAP.

Although the final OLD NESHAP do not specifically require the control of volatile organic compounds (VOC), the organic HAP emission control technologies upon which the standards are based will also significantly reduce VOC emissions from the source category. We estimate that the final OLD NESHAP will reduce nationwide VOC emissions emitted by the source category by approximately 9,900 tpy, or 70 percent, from baseline. This will have the effect of reducing adverse ozone-related health and welfare impacts.

The final OLD NESHAP will result in small increases in other air pollution emissions from combustion devices that will be installed in the next 5 years to comply with today's final rule. These increases result both from the combustion device directly and from the electrical generating plants used to generate the electricity necessary to operate the add-on controls and associated air handling equipment.

C. What Are the Water Quality Impacts?

We estimate that the final OLD NESHAP will not significantly impact water quality. The final standards do not contain requirements related to water discharges, wastewater collection, or spill containment, and no additional organic liquids are expected to enter these areas as a result of the OLD NESHAP. A few facilities may select a scrubber (depending on the specific emissions they are controlling) to control emissions from transfer racks or fixed-roof storage tanks. The impact on water quality from the use of scrubbers is not expected to be significant.

D. What Are the Solid and Hazardous Waste Impacts?

We project that there will be no significant solid or hazardous waste impact. Flares, thermal oxidizers, scrubbers, and condensers do not generate solid waste as a by-product of their operation. When adsorption systems are used, the spent activated carbon or other adsorbent that cannot be further regenerated may be disposed of in a landfill, which would contribute a small amount of solid waste.

E. What Are the Energy Impacts?

The control devices used for transfer rack and storage tank control use electric motor-driven blowers, dampers, or pumps, depending on the type of system, in addition to electronic control and monitoring systems. The installation of these devices would have a small negative energy impact. To the extent that some of the controlled organic liquids are non-gasoline fuels, the applied control measures would keep these liquids in the distribution system and thus have a positive impact on this form of energy.

F. What Are the Cost Impacts?

We have estimated the industrywide capital costs for HAP emissions control equipment to be $49.3 million for the 381 existing sources. The capital costs include the costs to purchase and install the control equipment.

We have estimated the industrywide annual costs of the final rule are $25.1 million per year for the 381 existing sources. Annual costs include fixed annual costs, such as reporting, recordkeeping and capital amortization, and variable annual costs such as natural gas. The estimated average cost of the final rule is $7,100 per ton of HAP emissions reductions for existing sources.

G. What Are the Economic Impacts?

The increases in price for petroleum and chemical products affected by the final OLD rule are less than 0.003 percent, and the price increase for distribution service covered by the final rule is 0.1 percent. Reductions in output for petroleum and chemical products are also less than 0.003 percent, and the output reduction of distribution services is less than 0.002 percent.

None of the facilities affected are expected to close as a result of incurring costs associated with the final rule. Therefore, it is likely that there is no adverse impact expected to occur for the industries affected by the final rule, such as chemical manufacturing, petroleum refineries, pipeline operators, and petroleum bulk terminal operators.

IV. Summary of Rule Differences From Proposal

A. Rule Applicability

We made several clarifications to our intent as to the composition of the OLD source category and the affected source and the overall applicability of various requirements of the final rule. We have removed the facilitywide 7.29 million gallon throughput cutoff. We found, after reanalyzing our database, that we could not support such a cutoff, since our data reanalysis indicated that MACT floor levels of control applied to facilities below the proposed facility throughput cutoff. For the final rule, we have adopted a set of applicability criteria to be applied to each type of emission source to determine whether emission reductions are required for each specific emission source. These applicability criteria were developed from our MACT floor analysis of our database.

We have written the definition of the term “organic liquid” to include any non-crude oil liquid that contains at least 5 percent by weight of any combination of the HAP listed in Table 1 to subpart EEEE of part 63 and also has a total liquid vapor pressure of at least 0.1 psia, plus all crude oil downstream of the first point of custody transfer. This reflects our reanalysis of our database, which revealed that MACT floor levels of control apply to liquids with these HAP concentrations and vapor pressures. The definition also reflects our decision to eliminate the “black oil” exemption as proposed because we identified MACT floor controls for storage of crude oil.

In response to several comments, we clarified that the OLD final rule will not regulate any emission sources that are part of another 40 CFR part 63 MACT rule's affected source, whether those sources are actually controlled or not. We also included a new section in the final rule on how owners and operators should treat regulatory overlaps (i.e., two Federal rules with applicability to the same emission source).

The final rule also corrects several of the proposed citations to 40 CFR part 63, subparts PP, SS, TT, UU, and WW and adds new ones to make the use of the referenced provisions easier for regulated sources to understand.

B. Compliance Demonstrations

The proposed rule was unclear as to how a source could use a design evaluation as an alternative to a performance test when demonstrating initial compliance for a control device. The final rule clarifies that the design evaluation (per 40 CFR part 63 subpart SS) may only be applied to nonflare control devices. Flares are subject to specific design criteria contained in the General Provisions (40 CFR 63.11(b)).

We have changed the principal test method to be used for analyzing the organic HAP content of liquids from EPA Method 18 of 40 CFR part 60, appendix A, to EPA Method 311 of 40 CFR part 63, appendix A. The EPA Method 18 is not an appropriate method for liquid analysis of the type that will be performed under the OLD NESHAP. Method 18 is appropriate for determining the HAP content in air streams, not the HAP content in liquids. We are now specifying EPA Method 311 of appendix A of 40 CFR part 63, which is titled “Analysis of Hazardous Air Pollutant Compounds in Paints and Coatings by Direct Injection into a Gas Chromatograph.” Sources may also use alternative analytical methods with EPA's approval, or rely on supplier information, MSDS, and similar analyses that do not require the source to perform any testing. If an MSDS, or similar documentation, presents the HAP content of components of a liquid as a range, then you must use the upper end of the range of values in determining the total HAP content of the liquid. If the results of an analysis by EPA Method 311 are different from the HAP content determined by another means, the EPA Method 311 results will govern compliance determinations.

The final rule allows up to 180 days after the compliance date to conduct the initial performance tests, rather than having to conduct them by the compliance date, and, thus, makes the final rule consistent with the amended General Provisions and other MACT rules.

C. Emission Limitations and Work Practice Standards

At proposal, we specified liquid vapor pressure cutoffs to determine applicability of the storage tank control requirements in terms of the annual average true vapor pressure of the stored liquid. This format was compatible with the liquid property data in our OLD database as we had received the data from industry. For the final rule, we have determined, in response to comments and after our re-analysis of our database, that the vapor pressure basis should be consistent with other NESHAP that also specify storage tank vapor pressure cutoff levels. Therefore, we have written the basis for the applicability criteria in the final OLD NESHAP to be the annual average true vapor pressure of the total organic HAP in the stored liquid.

We have also increased the time period over which an owner or operator may achieve compliance with the work practice standards for floating roof storage tanks. For any floating roof tanks that do not currently meet the equipment requirements specified in 40 CFR part 63 subpart WW, full compliance may be achieved within 10 years after the effective date of the final OLD NESHAP, or at the next degassing or cleaning of the tank, whichever occurs first. If the first degassing and cleaning activity occurs during the 3 years following the effective date of the final OLD NESHAP, the compliance date is 3 years from the effective date of the final OLD NESHAP. Fixed-roof tanks are still required to achieve compliance within 3 years after the effective date of the final OLD NESHAP.

At proposal, the emission limit and applicability throughput cutoff for transfer racks was based on each rack loading position. In re-analyzing the database since proposal, we have determined that the information for transfer racks could not be verified on the basis of individual rack loading position. We have written the final rule based on the entire transfer rack to be consistent with many other MACT rules.

In response to requests by commenters and after re-analyzing our database, we added 40 CFR part 63 subpart H as one of the LDAR programs that may be used to comply with the work practice standard for equipment. We also clarified that only equipment leak components associated with the affected source need to be included in a source's LDAR program.

D. Monitoring, Recordkeeping, and Reporting

The proposed rule contained detailed procedures for performing monitoring and for carrying out quality assurance checks on the monitors. The final rule incorporates the monitoring provisions of 40 CFR part 63, subpart SS, and requires owners and operators to submit their own monitoring plan for approval by the applicable title V permitting authority. In accordance with subpart SS, the final rule allows the use of organic monitors in addition to monitors that measure an operating parameter of the control device (such as temperature). This will provide more flexibility in the way a source determines operating limits and monitors operation of control systems. In response to several comments, the averaging time for the monitored data is daily, which is consistent with 40 CFR part 63 subpart SS.

Following proposal, we reviewed the proposed requirements to file reports and keep records and determined that these requirements could be streamlined by reorganizing the pertinent rule sections and deleting certain records and reports that were duplicative or unnecessary for ensuring that sources were maintaining compliance with the standards. We also responded to comments requesting flexibility in the way a source generates and submits reports by allowing a source to combine the reports required by different MACT rules or to send the periodic reports required under the final OLD NESHAP along with those required by title V of the CAA. We have incorporated provisions to allow these forms of combined reporting, as well as an allowance for multiple Notifications of Compliance Status for the same affected source to be submitted together. We have included specific references to the periodic reporting requirements in 40 CFR part 63, subparts SS, TT, UU, and WW, which had been inadvertently omitted from the proposal.

V. Summary of Responses to Major Comments

A. Rule Applicability

Comment: Several commenters stated that the Agency should revise the definition of “OLD operation” to be the combination or group of emission units used to transfer organic liquids into or out of a plant site in order to provide a clear definition of the OLD source category. Two of the commenters stated that EPA's definition of “OLD operation” is inconsistent with its source category listing. The proposed definition captures facilities that receive organic liquids but do not serve as distribution points, and from which such liquids are not obtained for further use and processing. These commenters urged EPA to limit the source category so that facilities and activities that do not serve as distribution points, or are merely managing organic liquids without distribution, are not captured in the final rule. Other commenters urged EPA to clarify that the final rule will not apply to end-users of organic liquid products, but rather only to manufacturers and distributors of those organic liquid products in the SIC/NAICS codes listed at proposal.

Response: The commenter's suggested definition for “OLD operation” is more appropriate for the affected source definition to clearly establish the limits of the affected source, but is not appropriate for describing the source category as a whole.

Further, we disagree with the commenters that our definition of OLD operation and, thus, the OLD source category is inconsistent with the source category listing by including facilities that receive organic liquids without further distributing them to end users. We consider the distribution network to include both outgoing and incoming transfers and storage of organic liquids, whether offsite or onsite. Thus, while the types of facilities identified by the commenters may never distribute the liquids offsite, the activities, equipment, and emissions that occur at such receiving and end-use facilities are part of the overall organic liquid distribution network.

The final rule is clear that the source category includes OLD operations that are collocated with other (such as manufacturing) activities at major source plant sites. Since the source category includes distribution operations in many industrial categories, we have not included any reference to SIC or NAICS codes in the final rule.

Comment: One commenter noted that the Technical Support Document (TSD) indicates that “tanks and other liquid handling equipment involved solely in activities within the plant site would not be considered to be OLD emission sources * * *,” but the provisions of the proposed rule and the definition of “OLD operation” do not support this position.

Similarly, commenters recommended that the affected source not include dedicated equipment used to transfer and store organic liquids between on-site process units.

Response: Our intent for the final rule is to reduce HAP emissions from the storage and transfer of organic liquids within a distribution network. It is our judgment that the distribution network ends only when the organic liquids reach a final destination where they are consumed or are introduced into an operation included in another source category. Therefore, the OLD network includes the transfer and storage of organic liquids involving any equipment identified in the affected source for OLD and that are not subject to another MACT rule. Further, in our judgement, there is no practical difference in the types of equipment in use and the types of available emission controls are identical for both inter- and intra-plant site transfers.

Based on these considerations, it is our intent that equipment used to store or transfer organic liquids that occur “within” a plant site are considered part of the OLD distribution network and part of the OLD affected source unless such equipment is subject to another MACT standard. Therefore, we have not excluded from the final rule “tanks and other liquid handling equipment involved solely in activities within the plant site,” and we have written the definition of OLD operation to include transfers and storage of organic liquids “into, out of, or within a plant site.” Thus, if an emission source meets the relevant HAP content, vapor pressure, and capacity or throughput criteria, the emission reduction requirements of the final rule apply to that emission source even if it transfers or stores organic liquids wholly within a plant site.

Comment: Several commenters requested that EPA clarify the relationship between applicability and affected source. These commenters felt that restricting the affected source to only those emission points that are subject to controls could result in a very narrow definition of the affected source. It could also result in triggering the MACT new source requirements by the addition of a relatively small component to an OLD operation, if the rest of the OLD operation were exempt from controls. This does not appear to be EPA's intent, but rather an inadvertent consequence of the manner in which the proposed rule addresses emission points that are exempt from controls.

Another commenter stated that EPA's proposed affected source definition is unlawful because EPA chose a broad definition that allows equipment to be replaced without the replacement becoming a new source.

Response: We agree with the commenters that the proposed rule did not contain a clear definition of the affected source, primarily because of confusion that occurred as the result of the two different definitions of “affected source” that were inadvertently created in the proposed rule.

While the intent of proposed § 63.2338(b)(2) was to provide additional detail to supplement the definition in § 63.2338(b)(1), we understand the confusion that this created by appearing to present a different and conflicting affected source definition. In the final rule, we have defined “affected source” as “* * * the collection of activities and equipment used to distribute organic liquids into, out of, or within a facility that is a major source of HAP.”

We also agree with the commenters that the affected source should include all of the pertinent emission sources without regard to the applicability criteria that cause certain equipment to be subject to different requirements of the final rule. Therefore, the final rule, in § 63.2338(b), presents a description of the affected source in which all of the pertinent emission sources are listed, without regard to their control requirements under the final rule. We have also written § 63.2338(b)(1) to define the affected source as “the collection of activities and equipment.” This clarifies our intention to have a broad interpretation of affected source.

We acknowledge that a broad definition in many circumstances allows individual emission points (such as a single storage tank, pump, etc.) to be replaced without the new source standards being applied to that new piece of equipment. Using a broad definition of affected source is, however, within our discretion in selecting the best approach for the standards for a particular source category. The term “affected source” refers to the collection of processes, activities, or equipment to which a MACT standard applies. In other MACT rules, we have adopted either a broader or narrower definition of affected source for given categories depending on the nature of particular MACT requirements and the strategies available for meeting them. A broader definition permits emission reduction requirements to apply to a larger group of processes, activities, and equipment. This approach encourages owners or operators to develop and utilize more innovative and economically efficient control strategies. Using a narrower definition of affected source frequently leads to difficulties for facilities in managing differing requirements for individual pieces of equipment without achieving substantive emission reduction.

For the purpose of determining MACT, however, we chose to utilize the approach of examining the emission sources individually. In our industry survey, we requested data for each emission source rather than from the entire OLD operation. By evaluating the data on an emission source basis, we were able to establish MACT floors for each type of emission source without having to consider how each facility controlled emissions on a facilitywide basis. For example, we established MACT floors for storage tanks based on facilities with the best controlled storage tanks, even if those facilities did not utilize the best controlled transfer racks.

Our selected approach for the final OLD NESHAP is consistent with the 40 CFR part 63 General Provisions, as amended (67 FR 16582, April 5, 2002), which adopt a broader definition of affected source such that future MACT standards will generally adopt a definition of affected source which consists of all existing HAP-emitting equipment and activities that are at a single contiguous site and are within a specific category or subcategory.

Comment: Several commenters recommended that compounding, blending, and packaging operations be included in the affected source, but with no control requirements. According to the commenters, this would result in a more accurate investment basis for OLD operations at a site, would clarify which MACT affected source these operations are associated with, and would avoid the potential for future regulatory overlap.

One commenter supported the inclusion of small containers (pails, drums, portable tanks, and isotainers) as part of the OLD affected source but urged that small containers be excluded from controls in the final rule.

Response: We have written the definition of affected source in the final rule to include storage tanks and transfer racks used to store or transfer organic liquids regardless of the particular operation or activity such tanks and transfer racks were supporting, including such operations and activities as packaging, blending, and compounding.

We have not defined the affected source to single out the operations identified by the commenter because the changes that were made to the definition provide the necessary clarity. The final rule makes it clear that equipment used in operations such as these would be part of the affected source if they meet the general criteria of storing or transferring organic liquids and they are not subject to another MACT rule. Equipment meeting the affected source criteria in § 63.2338 of the final rule are to be included as emission sources in the initial Notifications and Reports required under §§ 63.2382 and 63.2386 of the final rule.

Finally, we have included containers in the definition of affected source. This is consistent with how we have re-defined the affected source to include equipment even if control is not required under the final rule. The re-analysis of our data after reviewing the public comments resulted in a finding that the floor level of control for existing container filling operations is no emission reduction. We did, however, identify a MACT floor level of control for new source container filling. As discussed in more detail later in this preamble, we have determined that there are no feasible or cost-effective beyond-the-floor alternatives for the filling of containers at existing sources. Therefore, the final rule includes control requirements only for container filling operations that are new sources.

Comment: A number of commenters stated that the inclusion of cargo tanks as part of the affected source is inappropriate. These commenters pointed out that third parties typically provide cargo tanks and they are not generally under the common control of the OLD facilities. The commenters also stated that, if the OLD operation owner purchases either new cargo tanks or a fleet of existing cargo tanks, they should not be included in the reconstruction cost evaluation and potentially trigger new source MACT requirements at the OLD operation.

Response: As discussed in the proposal preamble and the TSD, and in previous rulemakings including the Gasoline Distribution MACT NESHAP (40 CFR part 63, subpart R), cargo tanks (consisting of tank trucks and tank cars, and renamed as “transport vehicles” in the final rule) can be a significant source of emissions while being loaded at transfer racks. Transport vehicles (whether owned/leased by the facility or operated by other firms) must be included in the affected source to ensure that MACT control will extend to these sources. As the final rule makes clear in Table 4 to subpart EEEE of part 63, the owner or operator must have vapor tightness documentation for each transport vehicle loading at an affected transfer rack. Third parties in many cases will be responsible for getting periodic testing (EPA Method 27 or DOT test) performed and for providing the certification papers to the facilities.

The acquisition of additional transport vehicles, whether by the source owner or by third parties, would not be included in the reconstruction cost evaluation and would not trigger any different control requirements for the liquid transfer operation. The items that define the affected source are the stationary infrastructure of the facility; that is, the combination of tanks, transfer racks, and equipment leak components. The primary mission of transport vehicles is transporting the liquids on roadways. Thus, they are not part of the stationary infrastructure of the facility. The objective of the “reconstruction” provisions of the CAA is to prevent an existing source from avoiding more stringent new source standards by perpetually rebuilding existing equipment rather than installing new equipment. The purchase of transport vehicles should have no impact on the triggering of more stringent standards for the storage tanks or transfer racks at an affected source. Also, at an OLD operation, facilitywide emission rates are impacted by the size, throughput capacity, and number of storage tanks and transfer racks. From the standpoint of overall emissions, it makes no difference if one vehicle is loaded ten times or if ten identical vehicles are loaded once. Therefore, the number of individual transport vehicles or the acquisition of additional transport vehicles should not be included as part of the infrastructure of the facility that is considered in determining “reconstruction” cost. The acquisition of additional containers by an owner or operator of an OLD facility would also not be considered in the determination of “reconstruction” costs.

Comment: Three commenters stated that EPA needed to clarify that only pipelines with equipment leak components (i.e., pumps, valves, or sampling connection systems) associated with a storage tank or transfer rack included in the affected source will be subject to the LDAR requirements. Commenters requested that a pipeline that transfers organic liquids directly to or from a process unit that does not pass through a transfer rack or storage vessel subject to the rule is not to be included in the affected source or in the calculation of throughput used in applicability determinations.

Commenters also stated that the exclusions from the OLD rule should include pipeline equipment leak components used to directly transfer organic liquids across plant site boundaries into or out of storage tanks not subject to another MACT standard or process equipment that are not storage tanks, and unloading facilities and pipeline equipment used to transfer organic liquids from ships, barges, tank trucks, or tank cars into a storage tank covered by other MACT standards or process equipment that are not storage tanks.

Response: Pipelines themselves are not and never were part of the affected source definition. Only equipment leak components that are part of a pipeline were considered part of the affected source at proposal. We know of no reason as to why equipment leak components associated with a pipeline that transfers organic liquids should not be part of the affected source for the final rule, regardless of whether the organic liquid being transferred is deposited in a storage tank subject to the final rule or to another MACT standard. If the pipeline's equipment leak components are subject to another MACT standard, then they are not subject to the final OLD NESHAP. If the pipeline's equipment leak components are not subject to another MACT standard and the pipeline is in organic liquids service, then the equipment leak components are subject to the requirements of the final OLD NESHAP.

Finally, the final rule does not include a facility-level throughput calculation to determine whether or not a facility is subject to the final rule. Therefore, there is no longer a need to clarify the relationship of pipelines to the throughput applicability determination.

Comment: We received a large number of comments concerning the proposed applicability criteria of 7.29 million gallons per year, which would have excluded facilities from the OLD rule if their facility throughput was less than 7.29 million gallons of organic liquids. Several commenters supported the cutoff and requested clarification on the procedures for determining throughput. Other commenters questioned the appropriateness of excluding from control those facilities that are in the source category and have emission sources that could be controlled by the final OLD rule.

Response: We proposed a facility-level throughput cutoff believing it was a useful criterion to identify smaller facilities at which controls would not be required based on our understanding that such facilities were not typically required to be controlled under other rules. We re-analyzed the database to determine if MACT floors existed for facilities with throughputs less than 7.29 million gallons of organic liquids, and determined that MACT floors exist for facilities with throughputs of less than 7.29 million gallons. Therefore, we can not support the proposed 7.29 million gallon cutoff.

However, as a result of our re-analysis of the database, we determined that throughput cutoffs for certain emission points were justified. The throughput cutoffs are now a part of the applicability criteria used to determine which transfer racks are subject to control.

Comment: Several commenters requested clarification of the relationship between the OLD rule and other existing rules and future rules.

Response: We agree with the commenters that the final OLD NESHAP must be explicit in describing the specific applicability of other 40 CFR part 63 NESHAP for sources that potentially may be drawn into more than one subpart. Section 63.2338(c)(1) of the final rule states that storage tanks, transfer racks, and equipment leak components that are part of an affected source under another 40 CFR part 63 NESHAP are excluded from the definition of affected source, even in cases where the other rule does not require a reduction in emissions from the emission source.

Comment: Several commenters stated that EPA needs to address overlap between the OLD NESHAP and other non-40 CFR part 63 existing rules, such as the Storage Tank New Source Performance Standard (40 CFR part 60, subpart Kb), the Benzene Storage Tank and Benzene Transfer Operations NESHAP (40 CFR part 61, subparts Y and BB, respectively), and Resource Conservation and Recovery Act (RCRA) regulations.

Response: We have written 40 CFR 63.2396 to address the overlap between the final OLD NESHAP and those rules cited by the commenters. If meeting the requirements of another rule does not result in an owner or operator fully meeting the requirements of the OLD NESHAP, then the owner or operator must modify the compliance methods to come into full compliance with the OLD NESHAP while remaining in compliance with the other rule.

Comment: One commenter, whose facility is subject to 40 CFR part 63, subpart Y (Marine Loading), pointed out that 40 CFR part 63, subpart SS, § 63.983(b) and (c), imposes an initial leak detection standard for closed vent systems that is more stringent than the detection standard contained in subpart Y; § 63.983(c)(1)(v) specifies only the use of methane for calibration of the instrument used to conduct the initial EPA Method 21 sweeps in subpart SS, while subpart Y is more flexible; subpart Y and subpart SS conflict on the response required if a leak is found; and, for closed vent systems that contain bypass lines, subpart Y contains an exemption on closure requirements for maintenance vents, but subpart SS does not allow that exemption. The commenter stated that this is appropriate for subpart Y due to the “batch” nature of tank vessel loading, and that it would be inappropriate to impose the subpart SS requirement on part of their facility.

Response: If an OLD emission source is required to be controlled under the final OLD NESHAP and that emission source is already controlled in a “shared” control device, then the owner or operator is required to be in compliance with both NESHAP or the NESHAP that impose the more stringent emission standard and/or work practices.

If an OLD emission source is in OLD operation part of the year and “in service” for another NESHAP for the rest of the year, then that OLD emission source is required to be in compliance with the final OLD NESHAP when that emission source is in OLD operation, even if the requirements between the two NESHAP rules are different. The owner or operator still has the option to permanently comply with whichever NESHAP provides the most stringent emission standard and/or work practices.

Comment: One commenter noted several conflicts between 40 CFR part 63, subparts SS and Y, and the proposed OLD NESHAP; specifically, performance tests on incinerators using specified test methods and conflicting language regarding the temperature monitoring location. The commenter claimed that the proposed control device evaluation in 40 CFR 63.2362(g) that would be submitted according to the requirements of 40 CFR 63.985(b)(1)(i) is an unnecessarily burdensome requirement for a facility that has source test data less than 5 years old showing that the control device more than adequately controls emissions. For such facilities, the commenter requested that existing data be allowed to be used in lieu of a design evaluation.

Response: We have written the performance test and design evaluation requirements in § 63.2362 of the final rule and Table 5 to subpart EEEE of part 63 to more clearly specify the use of the 40 CFR part 63, subpart SS, procedures and also to clarify that prior test results may be used, in many cases, to demonstrate compliance with the final OLD NESHAP. The final rule also allows owners or operators the flexibility of applying for approval to use alternative test methods.

Comment: Two commenters recommended that EPA clarify the OLD boundary by incorporating the concept of “intervening storage tanks,” which has been used in several other MACT standards such as the Hazardous Organic NESHAP (HON) and the Polymers and Resins rules. Under this concept, if a bulk tank in a centralized tank farm area has received organic liquids from outside the plant site and feeds that material to another storage tank at the process unit (an “intervening storage tank”), the bulk tank is assigned to the organic liquid distribution operation and the intervening storage tank to the process unit.

Response: We have evaluated the comment concerning the concept of “intervening storage tanks” and have determined that such a concept is neither appropriate nor needed for the final OLD NESHAP. The “intervening storage tank” concept is specifically to help facilities identify which storage tanks are part of the affected source of a particular MACT source category. The intent of the final OLD NESHAP is to supplement other NESHAP and apply to all remaining unregulated storage tanks that are in OLD operation. To incorporate similar “intervening storage tank” language in the final OLD rule is at best unnecessary and at worst could lead to excluding tanks that should be covered by the final OLD NESHAP.

Comment: Several commenters recommended that EPA clarify that the emission limitations and work practice standards identified in § 63.2346 apply whenever an emission source is in OLD operation, but not when the emission source is not in OLD operation. Commenters pointed out that the proposal stated that affected facilities must be in compliance with the emission limitations at all times except for periods of startup, shutdown, or malfunction. They felt that periods of “non-operation of the affected source” should be included on this list.

Commenters recommended that § 63.2374(c) be clarified such that for demonstrating continuous compliance data averages should only include data collected when vapors from OLD operations are being routed to the control device.

Response: It was our intent in the proposed rule that the emission limitations and work practice standards apply only when an emission source is transferring or storing an organic liquid or when an equipment leak component is in organic liquids service. Because there are no emissions from storage tanks or transfer racks during periods of “non-operation of the affected source,” there is no need for the emission limitations to apply during these times. In addition to periods when the entire affected source is not in operation, there may be periods when any one of the emissions sources within the affected source is not in operation or is not in OLD operation. During these periods, the emission limitations for all other emission sources would still apply, but the emission limitations would not apply to the emission source not in OLD operation. This intention has been clarified in § 63.2350 of the final rule.

We agree with the comment that only data collected during times when emissions are being routed to the control device should be used in demonstrating continuous compliance and have written § 63.2374(c) of the final rule to the effect that data are not to be used when collected during “periods when emissions from organic liquids are not routed to the control device.”

Comment: One commenter felt that the proposed rule should be modified to allow pilot flames to be turned off during flare shutdowns and when all the sources serviced by the flare are shut down.

A second commenter thought EPA should reconsider the continuous compliance requirements for thermal incinerators that utilize “bladder tanks,” which collect emissions in a bladder until a sufficient quantity is collected to use the incinerator, so that the oxidizer does not have to be operated continuously. The commenter suggested changing the rule language to require sites to maintain the average fire box temperature only during times that vapors are introduced to the control device.

Response: The requirement to continuously maintain a flare pilot flame is part of the 40 CFR part 63 General Provisions, which state that a pilot flame is required for an open flare during periods when emissions may be vented to the flare. If the flare is shutdown (out of service), there is no need to require a pilot flame because no emissions will be vented to the flare. Where the emissions sources serviced by the flare are shutdown, we agree that operating a pilot flame during such periods would be nonproductive because there are no emissions to be vented to the flare. We have written Table 9 to subpart EEEE of part 63 to allow an owner or operator not to maintain the pilot flame when all emission sources serviced by the flare are shutdown (out of service). However, we are requiring in the final rule that owners and operators make a demonstration to the permitting authority that it will not experience a deviation and to keep records of each time the pilot flame is extinguished and relit.

We also agree with the commenter that it is unnecessary to maintain the average fire box temperature in thermal incinerators during periods when emissions are not vented to the incinerator. Therefore, we have written Table 9 to subpart EEEE of part 63 to clarify that the average fire box temperature in thermal incinerators need only be maintained while emissions are being vented to the control device. The final rule requires the owner or operator to monitor both this temperature and the time periods when vapors are flowing to the device. We also note that an owner or operator may have to increase the firebox temperature some time before emissions are vented back into the incinerator in order to comply with the average fire box temperature requirement.

Comment: We received several comments concerning the definition of “organic liquid” that affects the applicability of the proposed standards. One commenter asserted that the exemption of most organic liquids containing less than 5 percent HAP by weight is in violation of the requirements of the CAA. Another commenter claimed that the 5 percent HAP cutoff is legally permissible on “de minimis” grounds.

Two commenters recommended that EPA revise its definition of “organic liquid” to exclude liquids that are not predominantly organic in order to exclude from regulation those liquids that contain very small amounts of organic material such as predominantly aqueous or inorganic liquids. The commenters felt that these liquids should not be included in the final OLD NESHAP because they do not emit significant amounts of organics to the environment and controlling them will not provide the intended emission reductions.

Finally, several commenters added that EPA should provide a list of common materials within the petroleum industry that will not be regulated, such as kerosene (No. 1 distillate oil), diesel (No. 2 distillate oil), asphalt, and heavier distillate oils and fuel oils.

Response: The EPA disagrees that the proposed exemption of organic liquids containing less than 5 percent HAP-by-weight can be justified by de minimis principles. The EPA's de minimis authority exists to help avoid excessive regulation of tiny amounts of pollutants, where regulation would yield a result contrary to a primary legislative goal. It is unavailable “where the regulatory function does provide benefits, in the sense of furthering the regulatory objectives, but the agency concludes that the acknowledged benefits are exceeded by the costs.” EDF v. EPA, 82 F.3d 451, 466 (D.C. Cir. 1996); Public Citizen v. Young, 831 F.2d 1108, 1112-13 (D.C. Cir. 1987); Alabama Power v. EPA, 636 F.2d 323, 360-61 & n.89 (D.C. Cir. 1979). Accordingly, a de minimis exemption to section 112(d)(3) is unavailable, because it would frustrate a primary legislative goal by carving out tons of HAP emissions from regulation. The EPA's rejection of the de minimis concept has already been affirmed by the U.S. Court of Appeals for the District of Columbia Circuit, in National Lime Ass'n v. EPA, 233 F.3d 625, 640 (D.C. Cir. 2000) (“NLA”), in which the court rejected the petitioner's claim that in light of both the high costs and low quantities of HAP at issue in that case, EPA should read a de minimis exception into the requirement that it regulate all HAP emitted by major sources. In that case, the Court found that “EPA reasonably rejected this argument on the ground that the statute ‘does not provide for exceptions from emissions standards based on de minimis principles where a MACT floor exists.’ ” NLA at 640.

Contrary to the commenter's request, EPA sees no reason to revisit this fundamental issue, and rejects the assertion that both EPA and the court decided this issue incorrectly in NLA. Section 112 of the CAA is replete with careful definitions of volume-or effect-based limitation on regulation, indicating that Congress has already defined what amounts of HAP emissions are too small to warrant MACT standards. The requirement to adopt MACT emission limitations, for example, applies without exception to “each category or subcategory of major sources * * * of [HAP].” CAA section 112(d)(1). For sources below the major source threshold, however, EPA has discretion to require “generally available control technologies or management practices.” CAA section 112(d)(5). Congress has thus itself defined volumetrically which sources' emissions are small enough not to warrant mandatory MACT standards.

Congress likewise defined several MACT exceptions applicable where emissions have de minimis health effects. Section 112(d)(4) of the CAA allows EPA to establish standards less stringent than MACT for HAP with an established health threshold, so long as it sets a standard below the health threshold with “an ample margin of safety.” Section 112(b)(3)(C) of the CAA directs EPA to de-list HAP—precluding section 112(d) MACT standards—if EPA determines that “there is adequate data on the health and environmental effects of the substance to determine that emissions, ambient concentrations, bioaccumulation or deposition of the substance may not reasonably be anticipated to cause any adverse effects to the [sic] human health or adverse environmental effects.” Section 112(c)(9)(B)(i) of the CAA lets EPA delete source categories from the category list—the consequence again being no MACT control—if it determines that, for emissions of carcinogenic HAP, “no source in the category * * * emits such [HAP] in quantities which may cause a lifetime risk of cancer greater than one in one million to the individual in the population who is most exposed to emissions of such pollutant from the source.” For noncarcinogens, EPA may delete source categories if it determines that “emissions from no source in the category or subcategory * * * exceed a level which is adequate to protect public health with an ample margin of safety and no adverse environmental effect will result from emissions from any source.” CAA section 112(c)(9)(B)(ii). Moreover, in defining which source modifications trigger additional regulatory standards, CAA section 112(g)(1)(A) mentions a “greater than de minimis increase in actual emission of a [HAP].” This shows that Congress knew how to use the de minimis concept when it considered such was appropriate in section 112, and the fact that it did not use it in section 112(d)(3) supports EPA's—and the D.C. Circuit's—conclusion that it is unavailable to support an exception to a MACT floor.

The EPA does not find persuasive the commenter's reliance on CMA v. EPA, 217 F.3d 861, 866 (D.C. Cir. 2000) for the proposition that the overall purpose of section 112 is protecting human health and the environment, and that, therefore, as long as this general purpose is met, EPA may fashion de minimis exceptions from MACT. First, this position appears to assume that the issue is to be drawn on a clean slate, while in fact the same court has affirmed EPA's view that section 112(d)(3) provides no discretion to use a de minimis rationale to avoid MACT, and the CMA case was not faced with it. Second, the commenter appears to give prominence to an over-arching statutory goal over the specific language of the statutory provisions themselves, in assessing whether those provisions are “extraordinarily rigid” regarding EPA's otherwise-inherent de minimis authority; the logical extension of such an approach would be to find that no single provision in the CAA could restrict EPA's de minimis authority, in light of the CAA's over-arching purpose “to promote the public health and welfare.” CAA section 101(b)(1). Third, the commenter does not present any statutory arguments to overcome those that EPA presented to the court—and which the court affirmed—in NLA, beyond noting that CAA section 112(d)(8) is even more extraordinarily rigid in requiring regulation of coke ovens than is otherwise the case for MACT standards. Finally, EPA is unable to discern the basis for the commenter's suggestion that EPA has in fact “been relying on” de minimis authority in the MACT program “for years,” and is not aware of any instance in which EPA has explicitly created such an exception from an identified MACT floor. Therefore, and for the additional reasons discussed below, EPA does not believe it is appropriate or necessary to revisit the Agency's and the D.C. Circuit's prior conclusions regarding the availability of the de minimis principle in the final OLD NESHAP.

However, for the final rule, we are promulgating a 5 percent HAP by weight threshold for non-crude oil liquids in the definition of an organic liquid. No such cutoff is being adopted for crude oil. There are several reasons why we believe such a cutoff is appropriate for the final OLD NESHAP, which EPA believes support the use of a non-crude oil 5 percent cutoff without having to rely upon a legally unavailable de minimis theory. During the planning and development of the proposed rule, we intended to reduce HAP emissions from the distribution of organic liquid products that were either pure HAP liquids, mixtures of HAP and non-HAP liquids, or crude oils. As stated, our intent was to focus on products (including crude oil, which is a naturally occurring product) “intended for further use or processing.” Therefore, we focused our data gathering efforts on five 2-digit Standard Industrial Classification (SIC) codes that we believed represented the vast majority of the facilities nationwide engaged in the distribution of what we considered to be organic liquid products.

We surveyed facilities in these five 2-digit SIC codes asking broad questions about the liquids that they distributed that contained organic HAP. In evaluating and analyzing the data, we discovered that the types of liquids containing organic HAP, including some non-product liquids and liquids with very low organic HAP contents, were more diverse than we had expected. In addition, the types of facilities engaged in distribution of such liquids, were greater than we had assumed in developing the proposed rule, as was the degree to which unforseen facility types were distributing and controlling emissions from such liquids.

As stated above, such low HAP content non-crude oil liquids were not initially anticipated to be covered by the OLD rule, and may in many cases be the result of impurities or contaminants and not the result of an intended formulation of a product. These types of non-crude oil liquids (those with small HAP contents) can be found at many facilities outside the five 2-digit SIC that we targeted. At this point, based on the data collected for the OLD rule, we cannot ascertain the representativeness of our data for those industries in other 2-digit SIC codes that we did not survey. Nor can we ascertain how many additional emission sources (controlled or uncontrolled) might need to be added to the database to adequately assess the MACT floor for these facilities and non-crude oil liquids and make final, enforceable regulatory decisions. We believe that our current data are insufficient for this purpose and do not provide enough information about the emissions, emission controls in use, or potential to reduce emissions to complete the MACT floor analyses that we believe are appropriate to address the unexpected non-crude oil liquids and facility types that we did not foresee as being subject to the OLD rule when we developed the proposal. As a result, we do not have sufficient data to develop regulatory requirements, including those regarding emissions control and reduction, and monitoring, recordkeeping and reporting, for low HAP-content non-crude oil liquids. We also do not currently have the flexibility in our schedule to allow us to gather the necessary additional data to assess requirements for these low HAP-content non-crude oil liquids prior to the consent decree date for promulgation of the final OLD rule. Section 112(d)(3)(A) and (B) of the CAA directs EPA to base existing source MACT floor determinations on “emissions information” which EPA “has” or “could reasonably obtain.” Rather than adopt requirements for low-HAP non-crude oil liquids based on insufficient data, EPA is proceeding with the final OLD NESHAP as initially envisioned and supported.

We are also concerned that if we were to lower or eliminate the 5 percent HAP content cutoff level for non-crude oil liquids, the final OLD NESHAP would have previously unforeseen impacts on a significant number of Department of Defense (DoD) facilities, at a time when the Federal government as a whole is re-assessing the extent to which it is appropriate to subject DoD facilities to regulatory requirements. There was a consensus among representatives of the DoD that the OLD rule as proposed (a 5 percent HAP content cutoff) would not impact the storage and distribution of many types of fuels and other liquids in use at military installations. However, if non-crude oil liquids with less than 5 percent HAP were included in the definition of organic liquids as written in the final OLD rule, many DoD facilities would be subject to the final rule and impacted in ways that DoD representatives have informed EPA may seriously compromise the military function. The potential impacts of facilities such as these becoming subject to the final OLD rule were not considered at proposal. No information was provided by commenters, including DoD or others, during the public comment period that would be useful in quantifying the potential impacts of lowering or eliminating the cutoff for these facilities. In light of the sensitivity of this issue, EPA believes it would be inappropriate to proceed with the final rule in a form that might cause unforeseen and as-yet un-analyzed impacts on DoD facilities.

After evaluating the issues discussed above, we have concluded that the most appropriate approach for the final OLD NESHAP, and the one that is most consistent with the CAA's directives, is to adopt a definition of organic liquid that includes a HAP content cutoff level for non-crude oil liquids. We have also concluded that the proposed level of 5 percent is a reasonable separation between our intended scope of products and those non-crude oil liquids that contain low amounts of HAP, often as impurities and contaminants.

For vapor pressure, we have only a small amount of data for non-crude oil liquids with true vapor pressures less than 0.1 psia. The data we do have are not representative of the universe of such low vapor pressure non-crude oil liquids and are not sufficient to enable us to support a MACT floor or emission standard requiring controls. We conclude that for a non-crude oil organic liquid to be subject to the final OLD rule, the organic liquid must have a total vapor pressure of at least 0.1 psia and must also contain at least 5 percent HAP by weight.

With regard to the comments about excluding organic liquids that are not predominantly HAP and including primarily aqueous or inorganic liquids, we investigated the HAP emission potential for solutions of HAP in organic liquids, inorganic liquids, and water (or mostly water). Based on consideration of the volatilization properties of organic compounds in various types of liquid media, we cannot support the suggestion for limiting the scope of the organic liquid definition. More detail on our analysis of this issue can be found in a memorandum in the docket.

Lastly, we have included a list of exempt liquids in the definition because the liquids are well defined and would exhibit such low vapor pressure that they would not exceed the 0.1 psia vapor pressure threshold.

Comment: One commenter requested that EPA clarify that the evaluation of crude oil as an organic liquid is only applicable after custody transfer.

Several commenters felt that “black oil” should be redefined based on whether it has the potential for flash emissions rather than in terms of the gas-to-oil ratio (GOR) and API gravity because petroleum transporters, petroleum marketers, and major petroleum product testing laboratories do not commonly use the gas-to-oil ratio. One commenter suggested that, for OLD MACT applicability, “black oil” should be determined solely on the basis of API gravity. This commenter also noted that for the purpose of “black oil” determination, the point of entry to the distribution system should be defined as the point of entry to the affected facility. Two other commenters felt that the determination should be made at a point that is representative of the combined crude oil stream.

One commenter provided data on crude oils handled throughout the country, including the Alaskan oil pipeline and the Valdez Marine Terminal (VMT). These data indicated that the API gravities for all of these crude oils average less than 40 degrees. For example, the blended North Slope crude oil loaded at the VMT ranges from 23 degrees to about 28 degrees, with most of it averaging 26 degrees API. The commenter concluded that if the OLD NESHAP are finalized with an exemption for crude oils having an API gravity less than 40 degrees, the effect will be to exclude virtually all crude oil from the final OLD rule.

Response: We have clarified in the final rule that only crude oil after the first point of custody transfer is subject to the final rule.

As discussed in the proposal preamble, the exclusion of black oil from the definition of crude oil (and hence from the family of regulated “organic liquids”) was based on a similar exemption in the Oil and Gas Production NESHAP, 40 CFR part 63, subpart HH. Based on the comments received and additional data (e.g., typical API gravities of crude oil distributed), we have discovered that most crude oil being distributed at OLD facilities would have been excluded from the final rule, even though our impacts analyses assumed most crude oil was subject to control. Moreover, in the reevaluation of our data, we determined that there are emission reduction floors for crude oil. Furthermore, the emission potential of crude oil is the same as for other organic liquids with similar HAP and HAP contents, and the total HAP emissions can actually be much larger due to the significant volumes of crude oil being distributed.

We have revised the definition of organic liquid to include all crude oil (after the first point of custody transfer) and have deleted the “black oil” exemption, the exclusion for heavier crude oils (i.e., those with an API gravity less than 40 degrees), and the parameter “gas-to-oil-ratio” as a measure of applicability for crude oil. Under the final rule, crude oil will be subject to the same storage tank capacity and HAP vapor pressure criteria used to determine control requirements for other organic liquids.

Comment: We received comments stating that EPA Method 18 is not an appropriate method for determining the organic composition of liquid streams, and that only the analytical requirements of EPA Method 18 should be made applicable in the final rule.

The commenters stated that testing should not be required if a material is already known to be a regulated organic liquid through process knowledge, an approach EPA has used in other rules, or if the material transferred is a commercial product with established specifications and is accompanied by an MSDS based on prior analysis.

Response: After reviewing the EPA's analytical test methods, we are in agreement with these commenters that EPA Method 18 is not an appropriate method for liquid analysis of the type that will be performed under the final OLD NESHAP. The EPA Method 18 is appropriate for determining the HAP content in air streams, not the HAP content in liquids. We are now specifying EPA Method 311 of appendix A of 40 CFR part 63, which is titled “Analysis of Hazardous Air Pollutant Compounds in Paints and Coatings by Direct Injection into a Gas Chromatograph.”

The final rule includes provisions that allow the owner or operator of an affected OLD operation to use a variety of information available to them to determine whether a given liquid meets the HAP content criteria in the definition of “organic liquids.” Information such as product data sheets or MSDS, as well as knowledge of commonly accepted formulations for certain products, may be used to designate materials as above or below the HAP content criteria.

While the owner or operator will not be required to test each liquid, EPA may require a test using EPA Method 311 (or an approved alternative) to confirm the reported content of organic HAP (from Table 1 to subpart EEEE of part 63) in the liquid. In the event of any inconsistency between information provided by the owner or operator and the values obtained using the test methods, the results obtained through the use of an approved test method (e.g., EPA Method 311) will govern compliance determinations.

Comment: One commenter felt there is an issue of the reliability of determining vapor pressures at 0.1 psia and lower. Since true vapor pressure is uncertain for low volatility stocks (such as distillate oils), EPA should allow the use of a surrogate property. The commenter suggested allowing the use of a flash point of 100°F as a surrogate for the 0.1 psia vapor pressure cutoff.

Response: We agree that measured values of liquid vapor pressure become increasingly uncertain as the vapor pressure decreases. In order to avoid the difficulties of these measurements for liquids with very low volatilities, and also to be consistent with other rules such as the HON, we have changed the basis for determining the vapor pressure of an organic liquid. Under the final rule, the vapor pressure may be determined by using the specified test methods or by using a calculated value based on knowledge of the organic HAP content of the liquid. As vapor pressure may now be a calculated value, it is not necessary to use a surrogate approach. Also, we have included a list of exempt liquids in the definition of organic liquids because the liquids exempted are well defined and would exhibit such low vapor pressure that they would not exceed the 0.1 psia vapor pressure threshold. Therefore, the final rule does not incorporate the flash point approach.

Comment: Two commenters stated that the storage tank capacity and vapor pressure criteria need to be reevaluated. The commenters noted that the proposed cutoffs in Table 2 to subpart EEEE of part 63 for applicability of storage tank controls are the same as those in the HON, and stated that the HON criteria should not set a precedent for any other source category. The commenters pointed out that other MACT rules that have followed the statutory procedure for MACT floor determination, such as the Refinery MACT, have concluded that the values for these criteria should be much higher. One commenter stated that the storage tank capacity and vapor pressure applicability criteria should, in fact, be consistent with 40 CFR part 63, subpart CC (Refinery MACT I). According to the commenter, these differences lead to confusion about applicability for facilities that must comply with several MACT rules.

Response: Applicability criteria are established based on the MACT floor and beyond-the-floor determinations and are made independently for each source category. This determination depends on the data available for each category. Since the data reflect different tank sizes and liquids stored, the applicability criteria may, and do, vary from one rule to the next. Therefore, it is not necessary or appropriate that the OLD applicability criteria be the same as for the Refinery MACT. Further, based on the re-analysis of the database, the applicability criteria for the final OLD rule have been written to better reflect our OLD database and no longer matches the HON applicability criteria.

One commenter was concerned about the potential confusion differences in applicability criteria may create for facilities that must meet several MACT rules. There should be no confusion at such facilities. The OLD NESHAP will not conflict with other storage tank applicability requirements, as storage tanks that are already subject to an existing 40 CFR part 63 subpart rule will continue to be subject to that subpart. The fact that an owner or operator must comply with different NESHAP for different storage tanks simply means that the owner or operator will have to implement an accurate and more exact accounting of which NESHAP apply to which tanks. This needs to be done only once, provided storage tanks do not change source categories.

Comment: Several commenters stated that the final OLD NESHAP should include a vapor pressure threshold for transfer rack control. The commenters suggested that a 1.5 psia threshold (i.e., no control for a rack if all transferred liquids are below the threshold), which was used in the HON and in the Marine Tank Vessel Loading NESHAP, be adopted. These commenters did not believe that cost-effective controls could be implemented for these low vapor pressure materials because of the low level of emissions. They also felt that mandating controls for these low volatility liquids could result in greater emissions from the control device than from the loading activities.

Response: In response to these comments, we re-examined the OLD database to determine the relationship between the current level of transfer rack control and the organic HAP vapor pressures. We determined that MACT floors consisting of the use of a control device existed for transfer racks handling liquids with vapor pressures greater than 0.1 psia at both new and existing sources. Since the MACT floor for loading activities down to this level is a closed vent and control system, we did not include a vapor pressure criterion for transfer racks in the final rule. We note, however, that transfer racks transferring non-crude oil liquids with total vapor pressures less than 0.1 psia (i.e., liquids that are not “organic liquids” for purposes of the OLD NESHAP) are not subject to the final OLD rule.

Comment: One commenter suggested that EPA's proposed exemption from control for the following emission sources: (a) storage tanks below 10,000 gallon capacity, (b) transfer racks with annual throughput less than 3.12 million gallons, and (c) pumps and valves in organic liquids service for less than 300 hours per year is unlawful because it allows unregulated HAP emissions.

Response: Based on a reevaluation of our database, we have revised the emission source criteria approach for storage tanks and transfer racks in the final rule. We are, however, retaining the 300 hour per year requirement for pumps and valves. Each of these items is discussed below.

Storage tanks below 10,000 gallons capacity. At proposal, we proposed to exclude from control new tanks with capacities of less than 10,000 gallons and existing tanks with capacities of less than 20,000 gallons. This exclusion was based on other MACT rules with storage tank standards that exclude such tanks from control. We have revised the database to include only those tanks likely to be subject to the final OLD rule and re-calculated MACT floors based on the remaining tanks in the database. We retained the basic analysis methodology of examining tanks by capacity and vapor pressure ranges, using common capacity and vapor pressure ranges (i.e., those frequently found in other rules) and by examining the cumulative level of control across these ranges.

Based on the revised analysis, the only MACT floors requiring emission reduction that were identified for existing tanks with less than 10,000 gallons capacity were for those tanks with capacities between 5,000 and 10,000 gallons capacities that are included in the 5,000 to 50,000 gallons capacity range containing non-crude oil liquids with a HAP partial vapor pressure equal to or greater than 4.0 psia or crude oil.

For new sources, a MACT floor requiring emission reduction was identified for tanks with 5,000 to 10,000 gallons capacities containing non-crude oil liquids with a HAP partial vapor pressure equal to or greater than 4.0 psia or crude oil. A MACT floor was also identified for tanks with capacities of 10,000 gallons or more and containing non-crude oil liquids with a HAP partial vapor pressure equal to or greater than 0.1 psia or crude oil. We have used these findings to determine the applicability criteria (tank capacity and HAP partial vapor pressure) to determine which tanks will be subject to control.

For those tanks for which the MACT floor was found to be “no emission reduction,” we conducted a beyond-the-floor analysis, and we have determined that there are no feasible or cost effective beyond-the-floor alternatives for these storage tanks. Therefore, the final rule does not include control requirements for tanks for which the MACT floor was determined to be “no emission reduction.”

In conclusion, the final rule is driven by the data for the OLD source category and includes capacity and vapor pressure criteria based on those data to determine which OLD storage tanks are required to be controlled and those that are not required to be controlled. Requiring no additional emission reduction from certain tanks is justified by the available data, meets the mandates of the CAA, and is not unlawful.

Transfer rack loading positions below 3.12 million gallons per year. As for storage tanks, we proposed to exclude relatively smaller transfer rack positions from control based on the requirements of other 40 CFR part 63 subparts (e.g., subparts SS and YY define a low throughput transfer rack as one that transfers less than a total of 11.8 million liters/yr (3.12 million gallons per year) of liquid containing regulated HAP). This throughput is equivalent to about 9,000 gallons per day, or the filling of approximately one tank truck.

Based on a re-analysis of the data (as described for storage tanks above), we determined that this applicability criterion is not appropriate for the OLD source category. Our data re-assessment indicates that there are emission reduction MACT floors for existing and new transfer racks above and below the 3.12 million gallons per year threshold. Therefore, the final rule does not adopt the 3.12 million gallons per year exemption for transfer racks.

Equipment in organic liquids service less than 300 hours per year. The stringency of a LDAR program is based on a number of factors. These factors include the definition of “in organic HAP service” (e.g., 5 percent HAP, 10 percent HAP), the leak definition (e.g., 500 ppmv, 10,000 ppmv), the frequency of monitoring (e.g., monthly, quarterly, annually), and exemptions for monitoring requirements (e.g., difficult to monitor components, in service less than 300 hours per year). The smaller the values associated with the definition of “in organic HAP service” and the leak definition, and the more frequent the monitoring, the more effective the LDAR program (better emission reduction). The more exemptions, the less effective the LDAR program.

In examining the LDAR programs in place at OLD facilities, we evaluated the overall effectiveness of the programs, including each of the aforementioned items. In general, the majority of the LDAR programs in place at OLD facilities use a 10 percent HAP in organic HAP service definition and do not contain a 300-hour per year in service exemption because the LDAR programs tend to be State or local rules or older New Source Performance Standard-type rules. The proposed rule allowed an affected source to comply with either of two NESHAP (40 CFR part 63, subpart TT or UU) for equipment leaks. While both of these NESHAP contain an exemption for components in service less than 300 hours per year, they have an “in organic HAP service” definition of 5 percent (not 10 percent). When compared to a 10 percent “in organic HAP service” definition without a 300-hour per year exemption, a LDAR program with a 5 percent “in organic HAP service” definition with a 300-hour per year exemption is more effective in reducing emissions (i.e., is more stringent). This occurs, in part, because there are more components caught by lowering the “in organic HAP service” definition than are “lost” due to the 300-hour per year in service exemption and, in part, because there are less emissions associated with components operating only 300 hours per year than from components in the 5 to 10 percent organic HAP range.

The 300-hour per year in service exemption has been provided in previous rules primarily to address equipment that has only occasional use in HAP service. Examples of such equipment are pumps and compressors used only during startup and shutdown of a process unit. Equipment in use less than 300 hours per year would be difficult to monitor within a regularly scheduled LDAR program, and very little emission reduction would be realized by including them.

The analysis of equipment LDAR programs in place within the OLD industry indicated that the 300-hour service exemption with monthly instrument-based inspections results in a level of control at least as stringent as the MACT floor level of control. Our investigation of the available control approaches for controlling equipment leaks did not identify any control approaches that would be beyond-the-floor level and also cost effective.

Therefore, for the reasons stated above, we are not removing the 300 hours per year exemption from the LDAR programs specified in the final rule.

Comment: One commenter stated that the CAA requires EPA to promulgate standards for all emission points at all major sources, and that exemptions based on capacity, throughput, and hours of service violate that requirement. The commenter noted that EPA attempts to justify the exemptions by arguing that the exempted facilities do not have a volume of emissions that warrants control, but the Agency does not claim that these emissions are de minimis.

Response: The EPA disagrees with the commenter's suggestion that every emission point at an affected source must be required to reduce emissions. Section 112(a) of the CAA does not state, or imply, that all emission points must be subjected to control requirements in standards promulgated under section 112. Section 112(d)(1) allows the Administrator to distinguish among classes, types, and sizes of sources within a category or subcategory in establishing such standards. We interpret this provision for the final OLD rule, as we have for previous NESHAP, as allowing emission limitations to be established for subcategories of sources based on size or volume of materials processed at the affected source. Under the discretion allowed by the CAA to consider sizes of sources, we made the determination that certain small-capacity and low-use operations can be analyzed separately for purposes of identifying the MACT floor and determining whether beyond-the-floor requirements are reasonable. With regard to whether emissions from certain groups of sources are “de minimis,” the commenter did not elaborate on its interpretation of this term or how it might apply in discussing the OLD applicability criteria for emission limitations.

Comment: One commenter stated that the EPA has no discretion to exempt certain OLD emission sources such as container filling, wastewater collection, and semi-aqueous waste. Several other commenters stated that the final rule should explicitly state that wastewater operations, including the treatment, storage, transfer, or discharge of wastewater, are exempt from the final OLD NESHAP. Some commenters were concerned that the rule as proposed would regulate hazardous waste transfer and conveyance systems that are collocated at manufacturing facilities that are major sources for HAP and requested that EPA allow such sites to utilize alternate LDAR programs established under 40 CFR part 265, subpart BB, and 40 CFR part 63, subpart GGG.

Response: As previously discussed, the proposed rule would reduce HAP emissions from the distribution of organic liquid products that were either pure HAP liquids, mixtures of HAP and non-HAP liquids, or crude oils, focusing on products (including crude oil, which is a naturally occurring product) intended for further use or processing. The handling of wastewater and semi-aqueous waste is not part of the distribution of organic liquid products. The definition of “organic liquid” in the final rule excludes hazardous waste, wastewater, and ballast water. In addition, the final rule clearly states that emission sources that are part of the affected source under another 40 CFR part 63 rule (such as oil and natural gas production) are not included in the affected source for the final OLD rule.

However, based on a review of data on container filling operations, we have determined that the only MACT floor for either existing or new sources is a new source floor for container filling operations. We identified one container filling operation that controls emissions by performing the operation in a total enclosure that is vented to a thermal oxidizer. This level of control meets the level 3 control for container filling found in 40 CFR part 63, subpart PP, the National Emission Standards for Containers. We have not, however, identified any technology that would achieve cost-effective beyond-the-floor control for new source container filling operations. The final rule requires owners or operators of new container filling operations to comply with the level 3 control requirements found in § 63.924 of subpart PP.

B. Emission Limitations and Work Practice Standards

Comment: A commenter claimed that EPA set the floor for new storage tanks the same as the floor for existing tanks without demonstrating that the floors reflect the best performing source, and claimed that EPA set the floor for existing transfer racks as the use of a control device with 95 percent control efficiency based on a “cursory analysis.”

The commenter states that EPA's proposed emission standards do not reflect the maximum achievable degree of reduction in emissions, and that EPA failed to adequately consider beyond-the-floor standards for each of the three regulated emission sources.

Response: As a clarification, the averaging process (for either the arithmetic average or the median) is applied to the top 12 percent of sources and not to the whole data set. This approach, consisting of more than one possible way of determining floors, is a practical necessity when working with the results of an averaging process. In examining our database and evaluating it based on comments, we have used the median source of the top performing 12 percent of existing sources where there are at least 30 sources, or the median source of the top performing five sources where there are fewer than 30 sources to determine MACT floors for the final OLD rule. Our methodology for determining MACT floors for existing sources is reasonable and conforms to the legal requirements of the CAA.

In developing the proposal and performing the MACT floor analysis for storage tanks, we evaluated each of the three primary types of tanks used for storage of organic liquids. These tank types are characterized by their basic construction and are referred to as fixed roof, internal floating roof, and external floating roof tanks. The selection of which type to use in a given situation is based on factors including capacity, types of liquids to be stored, climate, throughput, and cost. The emission control approach utilized for storage tanks differs depending on the tank type. The most common emission control approach for organic liquids storage tanks is floating roof technology, installed as either an internal or external floating roof. Floating roofs with properly designed seals and gaskets have been determined to perform at the highest level of emission control in use for storage tanks. External floating roof tanks achieve a somewhat lower control efficiency, because the vapor space above the floating roof is open to the atmosphere. However, the application of floating roof technology is the best demonstrated technology for this type of tank construction. For these reasons the Agency has developed storage tank equipment standards that specify in detail the design features that must be incorporated into a compliant floating roof design.

The emission reductions that can be achieved by add-on control devices on fixed roof tanks are equivalent to the reductions that can be achieved by floating roof technology. As with floating roof technology, the performance of the various types of add-on controls are somewhat variable depending on operational factors such as the types of liquids being stored and the tank filling rate. Properly designed and operated add-on control systems have been demonstrated to achieve emission reductions of 95 percent or greater from fixed roof storage tanks.

We developed MACT floor levels of control for the range of tank capacities and HAP vapor pressure of liquids stored based on the OLD storage tank database. The MACT floor level of control that was determined from the database is the use of properly designed floating roof technology or an add-on control device achieving a 95 percent reduction in HAP emissions. The MACT floor for storage tanks at new sources is not the same as the floor for tanks at existing sources. The new source storage tank floor is more stringent because the control requirements extend to tanks storing liquids with lower vapor pressures (i.e., more tanks will undergo control than at existing sources). New storage tanks in the 10,000 to 50,000 gallons capacity range will be subject to control under the final OLD rule at HAP vapor pressures as low as 0.1 psia (versus 4.0 psia for existing tanks in this same capacity range).

Based on our review of the types of control devices in use (primarily incinerators, adsorbers, and scrubbers) and the range of control efficiencies reported (approximately 20 percent to over 99 percent), we proposed that 95 percent was the most appropriate control efficiency for transfer operations. We selected this value based on the known capabilities of these control devices and on regulatory limits specified in other rules.

Following proposal, we re-analyzed our OLD database and determined that the MACT floor for transfer racks at existing and new sources is a control efficiency of 98 percent, based on the best performing sources. The 98 percent level of control has been shown to be achievable by well-designed and operated combustion devices. The choice of control options is not limited to combustion devices, however, as vapor balancing systems also achieve the required 98 percent control level where they are technically feasible.

In evaluating beyond-the-floor alternatives, we examined the ability to switch products, the ability to switch fuels, the potential for improved performance of add-on controls at already controlled sources, and the use of add-on control devices to reduce emissions from sources for which we determined the floors were “no additional emission reductions.”

The emission sources subject to the OLD rule are storage tanks, transfer racks, and equipment leak components (pumps, valves, and sampling connections). The liquids that are stored in storage tanks are those liquids required by a facility or its customers. It is not feasible for a facility to switch to a lower vapor pressure liquid when its customer requires a specific liquid. Therefore, product switching is not a feasible beyond-the-floor alternative for storage tanks. For the same basic reason, product switching is not a feasible beyond-the-floor alternative for transfer racks. Finally, equipment leak components can only leak what is in the process stream that they contact. Those process streams come from OLD storage tanks and transfer racks. As product switching is not feasible for tanks and racks, it is not feasible for equipment leaks.

With regards to fuel switching, the emissions that occur from tanks, racks, and equipment leak components have no fuel sources associated with them. The emissions occur as the result of displaced vapors when loading, breathing losses, and leaks. There are no fuel sources to “switch.” Therefore, fuel switching is not feasible.

The use of add-on control devices, including vapor balancing, however, represents a feasible beyond-the-floor alternative for storage tanks and transfer racks. Our analyses of beyond-the-floor alternatives for those emission sources for which we determined the floors are “no emission reduction,” showed cost-effectiveness values greater than $10,000 per ton for storage tanks and greater than $50,000 per ton for transfer racks. We have determined that these values are not reasonable. Further, because add-on controls were determined to be “not cost effective,” we did not evaluate the associated impacts of add-on controls for energy and other non-air quality environmental impacts. We note here that we have included in the final rule the option for transfer racks of using a vapor balancing system where technically feasible. These systems have demonstrated control efficiencies of 98 percent or greater (i.e., floor levels of control).

Our investigation of the available control approaches for controlling equipment leaks did not identify any control approaches that would be beyond-the-floor level and also cost effective. We are, therefore, promulgating equipment leak standards based on the floor level of control determined from the OLD database.

Comment: Commenters stated that the proposed rule text did not indicate whether the entire CAA section 112 HAP list or the proposed OLD Table 1 to subpart EEEE of part 63 HAP list is the appropriate chemical list to use for the various determinations and performance demonstrations, even though the proposal preamble notes that organic HAP listed on Table 1 to subpart EEEE of part 63 (and all crude oil except black oil) are the “regulated liquids.” One commenter noted that the proposal did not include emission standards for 24 of the 93 organic HAP that EPA claims are emitted from OLD operations, based on the Agency's claim that the HAP for which standards were not set are lower in volatility and have lower potential to be emitted.

Response: We have written Table 1 to subpart EEEE of part 63 to include all of the organic HAP identified as being present in OLD liquids. The control devices and work practice standards in the final OLD rule affect all of the HAP in an OLD liquid, even those that have lower emission potential due to their low vapor pressure. By including all of the known organic HAP in Table 1 to subpart EEEE of part 63, there is no longer any inconsistency between the HAP emitted by OLD operations, the HAP used to determine whether control is required, and the HAP used to demonstrate compliance. Therefore, while the initial determination of whether an entire facility meets the criteria for being a major source is based on all the HAP listed in the CAA, compliance with the final OLD rule is based only on the 98 HAP found in Table 1 to subpart EEEE of part 63.

Comment: One commenter pointed out that EPA has proposed allowing sources to meet a standard for TOC emissions rather than meeting any standard for HAP, stating that the Agency cannot credibly claim that TOC is a valid surrogate for all HAP that OLD facilities emit. In addition, the TOC option would result in control of even fewer HAP. For these reasons, the commenter believes this provision of the proposal is unlawful.

Response: The primary format for the emission limits in the final OLD rule is a control efficiency standard for organic HAP. At proposal, we offered the option of complying with the percent reduction standards using a TOC format. The use of “surrogate” pollutants is an accepted practice in environmental regulation, because it is often reasonable to infer similar behavior among members of a class of pollutants that share a common attribute. Dithiocarbamate Task Force v. EPA, 98 F.3d 1394, 1399 (D.C. Cir. 1996); NRDC v. EPA, 822 F.2d 104, 125 (D.C. Cir. 1987). Significant regulatory cost and time can be saved by relying on that relationship; monitoring, sampling, and recordkeeping can be reduced when a surrogate pollutant, rather than numerous individual pollutants, are tracked. Specifically, EPA's use of a surrogate pollutant in the MACT program has been upheld as reasonable in judicial review, where the court held that if control of the surrogate pollutant is the means by which sources achieve reductions in multiple HAP, EPA may require surrogate control without quantifying the reduction in HAP thus achieved. NLA v. EPA, 233 F.3d 625, 639 (D.C. Cir. 2000). After evaluating the comments, we have retained the optional TOC measurement format, but have added a requirement for a demonstration by the owner or operator that the HAP emission reduction achieved is at least as stringent as the TOC emission reduction for their affected sources. To make this demonstration, the owner or operator will have to show that the ratio of captured organic HAP-to-TOC is at least 1-to-1, such that it can thereafter be assured that capture of TOC will result in capture of organic HAP to at least as stringent a level as required. After the initial demonstration to establish the relationship between HAP and TOC emission reductions, use of the TOC format will be an acceptable alternative emission limit.

For the 20 ppmv outlet concentration standard, the use of TOC is an acceptable option without an equivalency determination. Because measured TOC in a gas stream includes all HAP, and may include some organic compounds that are not HAP, the concentration of HAP at the outlet of a control device will always be less than the measured TOC value. Thus, the limitation of TOC to a maximum concentration of 20 ppmv will always result in HAP emissions of 20 ppmv, or less.

We initially selected the TOC format as a possible alternative for the standards to provide flexibility for source owners and operators, while still requiring the MACT level of emission control to be achieved. The requirements of the final OLD rule will accomplish both objectives by allowing the use of a demonstrated surrogate, in appropriate cases. The approach adopted in the final rule will ensure that in all cases where the TOC surrogate is used, the correlation between the surrogate and organic HAP will have been demonstrated, and that control of the surrogate will achieve emission reductions of organic HAP at least as stringent as under the organic HAP limit.

Comment: Several commenters stated that the proposed rule fails to provide for the use of a number of proven emission reduction options and focuses primarily on closed vent systems and control devices. The commenters stated that EPA must allow the option of vapor balancing for storage tank and transfer rack emission reduction. Further, emission reduction options such as cooling the liquid in a storage tank to reduce vapor pressure, maintaining an inert gas blanket, or routing emissions to a fuel gas system or to a process should be specifically stated to be acceptable alternatives for compliance with the proposed rule.

Response: We have considered these comments and reviewed the provisions of the HON and other MACT rules that allow the alternative of vapor balancing, and we have added vapor balancing to the final rule as an alternative control approach for transfer racks (i.e., to control HAP vapors displaced during the loading of transport vehicles). Vapor balancing is a highly efficient (98 percent or greater) means of reducing the emissions of vapors displaced during the loading of transport vehicles. Vapor balancing to a fixed roof tank with an add-on control device may be a viable option for facilities that utilize this type of tank. However, vapor balancing is not technically feasible in all cases.

We recognize that, for the variety of liquids and equipment configurations that exist at OLD operations in many different industries, there may be numerous control approaches that would reduce HAP emissions to a degree equivalent to an end-of-pipe control system. Cooling a liquid may reduce its actual vapor pressure below the threshold for control in a storage tank, in which case the storage tank control requirements would not apply. The final rule addresses the routing of emissions to a fuel gas system or a process in §§ 63.2346(a) and (b) and 63.2378(d). We have not added the use of an inert gas blanket as an approved control measure because we have no evidence (and the commenters did not provide any) that this approach inherently provides the level of control required by the final standards. However, § 63.2346(g) of the final rule provides for requests for approval to use any other alternative approach. We have added a reference to § 63.177 of the HON to provide a more structured method for receiving approval of approaches that are not specifically listed in the final rule.

Comment: One commenter requested that the availability of the floating roof option be limited to those storage tanks storing stock with an annual average true vapor pressure of less than 11.1 psia. Proposed Table 4 allows compliance with 40 CFR part 63, subpart WW (floating roof control), as an alternative compliance measure for storage tanks, but without this vapor pressure restriction. Other EPA rules require controls on tanks storing stocks with vapor pressure greater than 11.1 psia (if the tank is in the capacity category that is subject to controls), but they do not allow the use of floating roofs as a control option for these higher volatility stocks. Several commenters also recommended that the storage tank definition should exclude pressure vessels designed to operate in excess of 204.9 kilopascals (29.7 psia) and without emissions to the atmosphere.

Response: We have written the final OLD rule to limit the application of floating roof technology to storage tanks containing organic liquids with an organic HAP annual average true vapor pressure less than 76.6 kilopascals (11.1 psia). For affected tanks with liquids ≥11.1 psia, only a closed-vent system and control device may be used. The OLD storage tank definition has also been written to exclude from OLD coverage pressure vessels designed to operate in excess of 204.9 kilopascals (29.7 psia) and without emissions to the atmosphere.

Comment: One commenter noted that EPA proposed to regulate equipment leaks through work practice standards, and EPA has not determined that it is not feasible to prescribe or enforce an emission standard. In fact, EPA notes in the TSD that leakless equipment, such as seal-less pumps, can “eliminate emissions entirely.”

Response: We have previously determined in the development of rules such as the HON that emission standards (in the format of a numerical emission limit) are not feasible for equipment leaks. Under section 112 of the Act, national emission standards must, whenever possible, take the format of a numerical emission standard. Typically, an emission standard is written in terms of an allowable emission rate (mass per unit of time), performance level (e.g., 90 percent control), or an allowable concentration. These types of standards require the direct measurement of emissions to determine compliance. For some source types, emission standards cannot be prescribed because it is not feasible to measure emissions. Section 112(h)(2) of the CAA recognizes this situation by defining two conditions under which it is not feasible to establish an emission standard. These conditions are: (1) If the pollutants cannot be emitted through a conveyance designed and constructed to emit or capture the pollutant; or (2) if the application of measurement methodology is not practicable due to technological and economic limitations. If an emission standard cannot be established, EPA may instead establish a design, equipment, work practice, or operational standard or combination thereof.

For equipment leak sources, such as pumps and valves, EPA has previously determined that it is not feasible to prescribe or enforce emission standards. Except for those items of equipment for which standards can be set at a specific concentration, the only method of measuring emissions is total enclosure of individual items of equipment, collection of emissions for a specified time period, and measurement of the emissions. This procedure, known as bagging, is a time-consuming and prohibitively expensive technique considering the great number of individual items of equipment in a typical process unit. Moreover, this procedure would not be useful for routine monitoring and identification of leaking equipment for repair.

While we did not include this rationale in the OLD proposal, emission standards in the form of numerical emission limits are not feasible for components subject to the OLD equipment leak regulations, and we have included the rationale in the final rule for establishing the equipment leak standards under CAA section 112(h).

The use of leakless equipment, as discussed in the TSD, may not be compatible with many of the liquids transferred at OLD sources. For example, seal-less pumps use the pumped liquid for lubrication and cooling, and some transferred liquids may not be adequate in this capacity. Also, this equipment can develop leaks after a period of time, which would require an LDAR program similar to the program in place for traditional equipment. For OLD operations, we have not developed enough experience and do not have data to indicate that equipment emissions at these operations justify this extreme type of reduction approach. The LDAR program represented in the final rule is being used successfully throughout industry to maintain low leakage rates from equipment.

Comment: Several commenters believe that EPA should not require instrument LDAR to control equipment leaks at OLD facilities. They said that instrument scanning for equipment leaks is impractical and not cost-effective, and they recommended that the OLD MACT rule specify a sensory (sight, sound, smell) leak detection and repair program similar to that in the Gasoline Distribution MACT rule, 40 CFR part 63, subpart R. One of the commenters felt that many OLD sources are already subject to regular Coast Guard inspection as well as EPA's SPCC plan requirements. The gains from additional LDAR requirements on the same piping must be quite limited but would come with a substantial burden.

Another commenter noted that the preamble states that the Agency found that an instrument-based LDAR program similar to the HON represents the MACT floor, but the OLD MACT rule generally applies to facilities similar to bulk gasoline terminals. Consequently, Table 4 Item 3 should state: “You must comply with the requirement of subpart R of this part.”

Response: In our MACT analysis, we determined that the MACT floor for existing sources is an instrument-based LDAR program. We further determined that this is the best system of emission reduction available, so we selected it as MACT for existing and new sources. Therefore, allowing a sensory program would not represent MACT because such programs have not been demonstrated to the Administrator's satisfaction to be equivalent to equipment-based programs for OLD operations. We specifically requested data to show that sensory programs would achieve the MACT level of control. In the development of 40 CFR part 63, subpart R, industry provided such data for gasoline and the final rule allows sensory programs. The Agency has received no data to support the claim that sensory programs would achieve equivalent control for OLD operations. Therefore, we have not written the equipment leak standards in the final rule as requested by the commenters. The final rule provides flexibility by allowing LDAR programs that are consistent with the provisions of 40 CFR part 63, subpart TT, UU, or H.

C. Testing, Compliance Requirements, and Monitoring

Comment: One commenter felt that proposed Table 5 to subpart EEEE of part 63 needs to be revised to allow for design evaluations in lieu of performance testing for non-flare control devices controlling emissions from storage tanks, as 40 CFR part 63, subpart SS specifies. In proposed § 63.2362, there is no language explaining specifically when a design evaluation may be done in lieu of a performance test. In addition, it appears that you must conduct a performance test to demonstrate compliance with emission limits in Table 2 to subpart EEEE of part 63 for both storage tanks and transfer racks. The commenter provided suggested revised language to clarify § 63.2362 through references to applicable provisions of subpart SS.

A second commenter noted that the text of proposed § 63.2354(a) pertaining to “other initial compliance demonstrations” was imprecise and confusing, since there is nothing other than performance testing requirements in 40 CFR 63.7(a)(2).

One commenter noted that a source that qualifies as an existing source may already be obligated to perform initial performance tests as a condition of a new source review construction permit. In the event of overlapping requirements to perform initial performance tests, there should be coordination of the schedule by which the testing is to be performed.

Two other commenters noted that proposed § 63.2358 would require performance testing of a control device used to comply with the OLD rule even if it is the same control device already tested and in use for compliance with another 40 CFR part 63 NESHAP standard. They felt that a facility that has already conducted performance testing to comply with a more stringent NESHAP should be able to use those test results in place of a new performance test.

Response: We have written § 63.2354 of the final rule and Table 5 to subpart EEEE of part 63 to clarify that design evaluations may be used in lieu of performance testing for demonstrating initial compliance for nonflare control devices. The requirements in 40 CFR 63.985(b)(1) were developed to ensure that design evaluations include adequate documentation to demonstrate that the control device being used achieves the required control efficiency. By specifically listing this alternative to performance testing in the final OLD rule, we have provided additional flexibility to owners or operators and increased uniformity among the other MACT rules that affect them.

We have also written the language in § 63.2370 of the final rule to clarify that the initial compliance demonstrations referred to in that section are those initial compliance requirements contained in Tables 6 and 7 to subpart EEEE of part 63. We have clarified that the General Provisions in § 63.7(a)(2) impose a schedule for the performance testing, while design evaluations are to be submitted in the Notification of Compliance Status per § 63.985(b)(1) of 40 CFR part 63, subpart SS.

Under 40 CFR 63.7(h), the owner or operator of an affected facility may request a waiver of the performance test requirements. Individual performance tests may be waived if, in the Administrator's judgment, the source is meeting the relevant standard(s) on a continuous basis. The provisions allowing for submission of a request for a waiver of the performance test, accompanied by supporting information such as a documented performance test previously conducted on the device, should avoid the situation of overlapping tests.

Comment: One commenter stated that EPA has failed to mandate adequate continuous monitoring requirements and that, at a minimum, EPA must establish requirements that provide a reasonable assurance of compliance. As an example, EPA did not propose the use of continuous emission monitoring systems (CEMS), but rejected them on cost grounds without indicating why the costs are too high. Another commenter noted that 40 CFR part 63, subpart SS (§ 63.990(c)), allows for use of organic monitoring device CEMS as an alternative to the continuous parameter monitoring systems (CPMS) for which operating limits are to be established. The final OLD rule should include the same allowance.

Response: Section 112 of the CAA does not require EPA to impose a CEMS requirement in MACT standards. Instead, EPA has substantial discretion in exercising its technical expertise to devise a monitoring system that assures compliance with applicable requirements. NLA v. EPA, 233 F.3d 625, 635 (D.C. Cir. 2000); Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 377 (1989). Particularly, the D.C. Circuit has already ruled that parameter monitoring requirements provide the necessary assurance of continuous compliance with applicable requirements and enhance the enforceability of emission standards, as required by the CAA. NRDC v. EPA, 194 F.3d 130, 134-37 (D.C. Cir. 1999). The commenters should note that the proposal included a requirement (in § 63.2366(a)) to install, operate, and maintain a CPMS on each control device installed under the final OLD rule. These CPMS continuously measure an operating parameter of the control device that influences emissions (such as temperature inside a thermal incinerator, vacuum achieved during the desorption cycle of a carbon adsorption system, etc.). They have been widely prescribed in several other MACT rules and are specified under the monitoring requirements of 40 CFR part 63, subpart SS. We consider properly selected CPMS to provide a reasonable assurance of compliance with the applicable requirements established in the final OLD rule. Deviations from the established values (operating limits) for these parameters must be reported by the facility in their periodic reports to EPA.

Because CPMS are judged to provide a reasonable assurance of compliance and are generally less expensive to install and operate, a requirement to use CEMS is not necessary. While we are not requiring the use of CEMS in the final OLD rule, facilities may request to utilize CEMS as an alternative monitoring method under § 63.8 of the General Provisions.

In addition, we have added an option for the use of organic monitoring devices (one type of CEMS) to Table 9 to subpart EEEE of part 63. In accordance with the 40 CFR part 63, subpart SS, requirements in § 63.990(c), an organic monitoring device may be used (as an alternative to CPMS) where absorbers (scrubbers), condensers, and carbon adsorbers are used to meet a weight percent emission reduction or a ppmv outlet concentration requirement. Organic monitors provide a reasonable assurance of compliance by quantifying exhausted total organic compounds (pollutants), which in turn provides an indication of the proper operation of the control device. A properly operating control device will continue to achieve the required control levels for organic HAP specified in the final OLD rule.

The alternative of installing and operating either CPMS or CEMS, in conjunction with effectively managed control devices, will provide a reasonable assurance of compliance with the final OLD rule's requirements.

Comment: Several commenters asserted that EPA has proposed installation, operation, and maintenance requirements for continuous parameter monitoring systems in § 63.2366 of the final rule that are wasteful, unnecessary, and in some cases infeasible and will have environmentally negative impacts. Due to the significant problems associated with the proposed continuous parameter monitoring system requirements, EPA should withdraw these requirements from the OLD final rule and use the existing subpart SS requirements for continuous monitoring systems.

Response: We have decided not to include the performance specifications for CPMS in the final OLD rule as they were proposed. We have clarified in the final rule that owners and operators must comply with the continuous monitoring provisions of subpart SS. Since owners and operators subject to the final OLD rule are required to comply with the requirements of subpart SS, they are already required to follow written performance specifications. We have concluded that the requirements in subpart SS are adequate to ensure that CPMS are properly operated and provide reasonable assurance of continuing compliance with the standards.

In a separate action, we are currently developing performance specifications for CPMS that we intend to propose to be followed by owners and operators of all sources subject to standards under 40 CFR part 63. We decided it would be premature to promulgate performance specifications for the final OLD rule when the performance specifications that would ultimately be promulgated in the General Provisions of 40 CFR part 63 may be significantly different as a result of possible public comments received on that rulemaking.

Comment: One commenter stated that a minimum or maximum parameter monitoring limit should be established based on the parameter values measured during the performance test and supplemented by engineering assessments and/or manufacturer's recommendations. Nowhere in the proposal preamble, 40 CFR part 63, subpart EEEE, or any of the referenced standards is there any indication of how operating limits are established. The final OLD rule should allow the facility to establish the operating limits necessary to achieve the requirements of Table 2 to subpart EEEE of part 63. This would be consistent with the HON. In addition, the conditions for conducting performance tests should be consistent between Table 12 to subpart EEEE of part 63 (§ 63.7(e)(1)) and § 63.997(e)(1) of 40 CFR part 63, subpart SS, to avoid confusion.

Response: We have included in the final OLD rule a requirement for the owner or operator to develop and submit a monitoring plan according to the requirements in § 63.985(c) of 40 CFR part 63, subpart SS. The monitoring plan must specify the parameters that an owner or operator proposes to monitor and the range of acceptable values for each parameter. The final OLD rule specifies parameters that must be monitored unless the owner or operator chooses to request permission to monitor an alternative parameter. The final OLD rule does not, however, provide specific ranges of acceptable values for the monitored parameters. Owners or operators must establish monitored parameter limits based on performance testing or design evaluation information. Thus, the owner or operator now has the flexibility to establish monitoring parameter limits that are most appropriate for assuring that their particular equipment complies with the emission limitations.

Comment: Two commenters stated that, in Tables 3 and 9 to subpart EEEE of part 63, compliance with the operating limits should be based on a daily average value instead of an hourly average. They claim that using an hourly average as the basis for compliance with the operating limit is a very stringent requirement and is in direct conflict with numerous 40 CFR part 63 standards. They also claim that the use of daily averages instead of hourly averages supports every legitimate need of EPA's Enforcement Office, while still making compliance with the final OLD rule possible.

Response: We have evaluated the changes recommended by the commenters and have modified Tables 3 and 9 to require that daily average values of recorded parameters be used to determine compliance. Daily average values have been considered by EPA in other MACT rules to be sufficient to demonstrate compliance for the types of control devices in use within this industry. We concluded, after further evaluation, that an hourly average may not be sufficient to account for normal, short-term fluctuations of operating parameter values. Also, the parameter monitoring limits are normally established during performance testing that covers a span of three, 1-hour runs. This testing period helps ensure that short-term variations in operating conditions (temperature, flow rate, concentration, etc.) do not inappropriately bias the overall average. It is consistent with EPA policy developed in other MACT rules and with good engineering judgement to allow daily average values to be used to determine compliance. It should also be noted that in cases where an emission source operates for a total of less than 24 hours at a time, the average recorded values must comply over the total operating period.

Comment: One commenter stated that the non-applicability of the emission limits during periods of SSM is unclear and needs to be addressed, and recommended that specific language in § 63.2378, patterned on 40 CFR §§ 63.102-103 or 63.480(j) regarding operation during SSM, be included in the final OLD rule.

Response: We have written the language in § 63.2378 to clarify the applicability of the emission limitations during periods of SSM. While the emission limitations still apply during periods of SSM, deviations from the emission limitations during these periods are not automatically considered to be violations if the owner or operator demonstrates that they have followed the requirements of their SSM plan. Paragraphs (b)(2) of § 63.2378 require that control devices be operated during periods of SSM if possible without damaging the devices and paragraphs (b)(3) require that appropriate measures be taken to minimize emissions during periods of SSM. The final OLD rule does require, in § 63.2386(d), that deviations from the emission limitation that occur during periods of SSM be reported in the semiannual compliance report.

Comment: The same commenter stated that proposed § 63.2378(d) is unnecessary and confusing and should be deleted, stating that SSM requirements are adequately addressed in the recently amended General Provisions and no argument has been made to justify deviating from those provisions.

Response: As discussed in the previous response pertaining to SSM requirements, we have clarified in the final rule that deviations occurring during periods of SSM must be reported in the semiannual compliance report even though they are not automatically considered to be violations of the emission limitation. The result is more consistency between the final OLD rule and other recently promulgated rules and also provides the EPA with information necessary to decide on a case by case basis if further documentation should be requested from a facility.

Comment: Several commenters felt that EPA should allow storage tanks with nonconforming seals to upgrade the seals up until the next time the tank is out of service, but no more than 10 years after rule promulgation. For an existing affected source, the proposed OLD rule would have required compliance with the emission limitations and work practice standards for existing sources no later than 3 years after the effective date of the final rule. Other MACT rules with storage tank provisions recognize that a 3-year compliance schedule would typically result in an increase in emissions because the emissions associated with emptying and degassing the tanks for performing the required alterations can be greater than the emission reductions that those alterations would achieve.

Response: In response to these comments, we reviewed the allowances made in other MACT rules regulating storage tanks, and also the Generic MACT standards for storage vessels, 40 CFR part 63, subpart WW, which are an allowable alternative (in Table 4 of the proposed rule) to the 95 percent emission limit.

The Gasoline Distribution MACT rule (40 CFR part 63, subpart R) allows a 3-year compliance period for upgrading external floating deck rim seals and for applying controls (gaskets, etc.) to deck fittings. However, if only the fitting controls are needed for a particular external floating roof tank to achieve compliance, the facility may wait until the next scheduled degassing and cleaning of the tank (or up to 10 years) to install the fitting controls. Subpart WW of 40 CFR 63.1063(a)(2)(ix) is similar to the Gasoline Distribution rule in that fitting controls may be installed up to 10 years after promulgation.

The Petroleum Refinery MACT rule (40 CFR part 63, subpart CC) allows up to 10 years to achieve compliance for existing floating roof storage tanks, but gives fixed-roof tanks only 3 years to comply due to the much greater emission reduction achieved for fixed-roof tanks.

Analysis of the emissions created by a tank degassing and cleaning event were performed under both the Gasoline Distribution and Refinery rules. We agree that for OLD storage tanks, the net cumulative emissions from performing a special cleaning and degassing to bring a floating roof tank into compliance would be greater than from allowing an OLD operation to wait until a scheduled cleaning event to make these modifications. Therefore, the final OLD rule includes a provision to allow a facility up to 10 years to convert the rim seals or deck fittings on existing floating roof tanks. However, the analysis for the Refinery rule showed that the emissions from degassing and cleaning fixed-roof tanks can be balanced within 1 year by the reductions achieved by applying the subpart WW controls (specific floating roofs and seals) or a 95 percent efficient control device. Therefore, existing fixed-roof tanks are required in the final rule to achieve compliance within 3 years after the effective date.

The final OLD rule is written to be consistent with the overall CAA goal of reducing HAP emissions. In a situation such as the control of this type of storage tanks, strictly adhering to the 3-year compliance timeframe to implement the MACT floor level of control actually results in increased emissions. Thus, if our goal is to reduce HAP emissions, we are faced with a choice of allowing facilities more time to comply with the MACT level of control or not require that they comply at all. The approach taken achieves more HAP emission reductions than would be achieved by not requiring facilities to meet the MACT level of control.

D. Notifications, Reports, and Records

Comment: One commenter stated that the provisions of proposed § 63.2386(c)(4) and (d) (information to be included in semiannual Compliance reports) are too broad and EPA has not indicated why such broad applicability is needed and what useful purpose repeated submittal of information will serve.

Similarly, another commenter requested that EPA revise § 63.2386(d) concerning the first Compliance report because the records requested in § 63.2386(d)(1), (4), and (5) will literally require the submission of reams of paper with each Compliance report.

Response: We have reviewed the proposed requirements related to the content of the initial notification of compliance status (NOCS) and subsequent compliance reports. We agree that, to the extent that the initial NOCS includes the information necessary to understand the OLD activities at the site, this information need not be reported again in subsequent compliance reports unless there are substantive changes affecting applicability or organic HAP emissions. Therefore, we have streamlined the referenced paragraphs to eliminate duplicated information (but also to require the initial Compliance report to contain any updated or final facility information that was not reported in the NOCS).

Comment: One commenter stated that language added April 5, 2002, to 40 CFR 63.10(d)(5)(i) of the General Provisions concerning reporting the number, duration, and a brief description of each SSM is unnecessarily burdensome for OLD-type operations, where there are many individual components, any of which can be undergoing SSM activities independent of the other components. The commenter suggested that the approach used in the HON offers reasonable relief and that it be used. Specifically, the commenter recommended that requirements for recordkeeping and reporting be for “startups, shutdowns, and malfunctions during which excess emissions occur.”

Two other commenters expressed concern with the immediate SSM reporting requirement in Table 11 to subpart EEEE of part 63, item 2. They stated that this requirement should be made consistent with the HON, which allows these events to be reported in the next semiannual Compliance report.

Response: The amount of information required in the amended General Provisions for the SSM reports does not represent an undue burden for OLD operations. We believe that the additional information required under the amended General Provisions is useful to the EPA in gaining an understanding of the frequency, duration, and types of SSM activities at an affected source. Because sources are required to minimize emissions to the extent which is consistent with safety and good air pollution control practices during periods of SSM, gaining an understanding of the overall operation of an affected source is important. Therefore, we have retained the requirement in § 63.2386(c)(5), which references the General Provisions. We have also retained the requirement in Table 11 to subpart EEEE of part 63, item 2, which specifies that an immediate SSM report must be submitted if the owner or operator takes an action that is not consistent with their SSM plan. We concluded that a failure to follow an approved SSM plan should not go unreported for a period of time that could be almost 6 months. In those cases where the owner or operator follows their SSM plan, reporting in the next scheduled compliance report is allowed under Table 11 to subpart EEEE of part 63.

Comment: Two commenters expressed concern with proposed § 63.2378(b), which implies that if the operator starts up or shuts down a control device and it does not meet the 1-hour average temperature because it only ran for 15 minutes of a given hour, then the operator has to report that they did not meet the required temperature even though the temperature during the actual loading operation may have met the requirements. One of the commenters stated that this results in much more recordkeeping and reporting than the HON, Polymers & Resins MACT rules, or 40 CFR part 63, subpart SS, for no environmental or compliance benefits.

Response: We have written the language in § 63.2378 to clarify the applicability of the emission limitations during periods of SSM. While the emission limitations still apply during periods of SSM, deviations from the emission limitations during these periods are not automatically considered to be violations if the owner or operator demonstrates that they have followed the requirements of their approved SSM plan. Paragraphs (b)(2) require that control devices be operated during periods of SSM if possible without damaging the devices and paragraph (b)(3) require that appropriate measures be taken to minimize emissions during periods of SSM. The final OLD rule does require, in § 63.2386(d), that deviations from the emission limitations that occur during periods of SSM be reported in the semiannual compliance report, even though they are not automatically considered to be violations of the emission limitations. It should be noted that the averaging period has been written as daily averages of monitored parameters and, also, that monitoring is only required during periods of operation of the emission source. In the commenters example of a source operating for only 15 minutes, if the monitored parameter meets the operating limitation during that period of operation, it would not be considered a deviation.

E. Definitions

Comment: Several commenters felt that EPA should revise the definition of annual average true vapor pressure in proposed § 63.2406, as there is no good reason to require annual recalculation of the average ambient temperature. The referenced method for determining true vapor pressure (API 2517) uses the normal average annual temperature. This is published by the National Climatic Data Center as a cumulative average over many years, and thus may be considered a constant for a given location.

Commenters stated that the temperature basis used for vapor pressure determination should be related to the actual facility emission potential and consistent with the regulatory basis. Two of the commenters stated that the vapor pressure determination for storage tank applicability should be based on the annual average temperature of the stored organic liquid.

Response: We agree that the average annual temperature for a given location is not likely to vary from year to year to the extent that, if all other factors are unchanged, it will have a noticeable effect on emissions. Thus, annual recalculation of this temperature is unnecessary and we have written the definition in the final OLD rule to reflect this. As suggested by one of the commenters, we have also added the term “actual annual average temperature” to clarify that the actual liquid temperature should be used in determinations of vapor pressure.

We have also written the definition of “annual average true vapor pressure” so that it is based on the actual annual average temperature of the liquid, and annual recalculation of the vapor pressure value is not needed.

Comment: One commenter suggested that in the definition of black oil, EPA should delete the word “hydrocarbon” and the parentheses around “petroleum” to ensure clarity of intent. It is possible for a chemical plant to bring onto or ship out from a plant an oily, black hydrocarbon liquid that could meet the other criteria of this definition. The commenter believes that EPA intends that black oil be a technical term related only to petroleum liquids.

Response: We have deleted the term “black oil” from the final rule. All crude oil will now be subject to the requirements under the final OLD rule.

Comment: One commenter recommended that EPA use the proposed § 63.2334(b) definition of “organic liquid” in § 63.2406 (Definitions) to specifically exclude “black oil” and gasoline. Another commenter recommended that EPA revise the organic liquid definition to make clear the intent that the HAP content cutoff (5 percent by weight) applies to liquids other than crude oil.

Response: We have written the definition of “organic liquid” to clarify the intended meaning of this term in the final OLD rule and have removed the description of organic liquids from § 63.2334(b). We have included a 5 percent cutoff level for defining non-crude oil liquids as “organic liquids.”

Comment: Many commenters suggested changes to the definition of storage tank. One commenter stated that EPA should clarify that the rule only applies to stationary tanks. The proposed definition stated that the term means a stationary unit, and then cited several examples of non-stationary units. If these examples were to be interpreted as constituting the only non-stationary units that are not subject to the rule, then other portable tanks and containers could be improperly construed as being subject to the rule. Several commenters recommended that the storage tank definition should exclude pressure vessels designed to operate in excess of 204.9 kilopascals and without emissions to the atmosphere. Three commenters recommended that the storage tank definition be changed to clearly include blending tanks in the affected source and that, therefore, storage tanks and transport vessels used for “incidental mixing and blending” are a part of the OLD affected source. The commenters maintained that it must be clear that the OLD rule does not exclude from the affected source those storage tanks that have the ability to practice “incidental blending and mixing to maintain product specifications.”

A final commenter recommended that vessels permanently attached to motor vehicles such as trucks, tank cars, barges, or ships be excluded from this definition (per the definition in the HON).

Response: We are in agreement with the commenters concerning the types of tanks intended to be covered by the term “storage tank.” We have written the definition to make it more consistent with other rules (such as the HON and the Miscellaneous Organic NESHAP) and to reflect suggestions of the commenters.

Comment: Two commenters suggested that the definition of transfer rack be amended by deleting the “physically separate” criterion because the 11.8 million liter (3.12 million gallon) throughput cutoff in the OLD rule is based on each transfer rack loading position and not the transfer rack as a whole. The last sentence in the transfer rack definition was also included in the HON subparts F and G definitions for loading rack, in §§ 63.101 and 63.111. Under the HON, this sentence was important to enable one to distinguish between the terms “transfer rack” and “loading rack” when making the Group 1/Group 2 determination. This Group status was based on throughput of the entire transfer rack and not each transfer rack loading position.

Response: We are retaining the definition as proposed for “transfer rack,” including the “physically separate” criterion, because we have written the description of the transfer rack emission source subject to emission standards from each loading position to the entire transfer rack, consistent with other air emission control regulations for volatile organic and petroleum liquid transfer operations. In the data reassessment we performed after proposal, we also found that the reported transfer rack data were sufficient to develop a MACT floor level of control for transfer racks but not for individual loading positions.

VI. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

Under Executive Order 12866 (58 FR 51735, October 4, 1993), EPA must determine whether a regulation is “significant” and, therefore, subject to Office of Management and Budget (OMB) review and the requirements of the Executive Order. The Executive Order defines “significant regulatory action” as one that is likely to result in a rule that may:

(1) Have an annual effect on the economy of $100 million or more, or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal government communities;

(2) create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;

(3) materially alter the budgetary impact of entitlements, grants, user fees, or loan programs, or the rights and obligations of recipients thereof; or

(4) raise novel or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.

Pursuant to the terms of Executive Order 12866, it has been determined that today's final rule is not a “significant regulatory action” because it will not have an annual effect on the economy of $100 million or more and is therefore not subject to OMB review.

B. Paperwork Reduction Act

The information collection requirements in the final rule have been submitted for approval to the Office of Management and Budget under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. (ICR No. 1963.02) The information requirements are not effective until OMB approves them.

The information requirements are based on notification, recordkeeping, and reporting requirements in the NESHAP General Provisions (40 CFR part 63, subpart A), which are mandatory for all operators subject to national emission standards. These recordkeeping and reporting requirements are specifically authorized by section 114 of the CAA (42 U.S.C. 7414). All information submitted to the EPA pursuant to the recordkeeping and reporting requirements for which a claim of confidentiality is made is safeguarded according to EPA policies set forth in 40 CFR part 2, subpart B.

The final rule will require maintenance inspections of the control devices but will not require any notifications or reports beyond those required by the General Provisions. The recordkeeping requirements require only the specific information needed to determine compliance.

The annual monitoring, reporting, and recordkeeping burden to affected sources for this collection (averaged over the first 3 years after the effective date of the promulgated rule) is estimated to be 137,170 labor-hours per year, with a total annual cost of $7.5 million per year. These estimates include a one-time performance test and report (with repeat tests where needed), one-time submission of an SSMP with semiannual reports for any event when the procedures in the plan were not followed, semiannual compliance reports, maintenance inspections, notifications, and recordkeeping.

Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information.

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 are listed in 40 CFR part 9. When this ICR is approved by OMB, the Agency will publish a technical amendment to 40 CFR part 9 in the Federal Register to display the OMB control number for the approved information collection requirements contained in the final rule.

C. Regulatory Flexibility Analysis

The EPA has determined that it is not necessary to prepare a regulatory flexibility analysis in connection with the final rule. The EPA has also determined that the final rule will not have a significant economic impact on a substantial number of small entities.

For purposes of assessing the impacts of today's final rule on small entities, small entity is defined as: (1) A small business whose parent company has fewer than 100 or 1,500 employees, or a maximum of $5 million to $18.5 million in revenues, depending on the size definition for the affected North American Industry Classification System (NAICS) code; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field. It should be noted that companies in 42 NAICS codes are affected by the final rule, and the small business definition applied to each industry by NAICS code is that listed in the Small Business Administration (SBA) size standards (13 CFR 121). For more information on size standards for particular industries, please refer to the economic impact analysis in the docket.

After considering the economic impacts of today's final rule on small entities, EPA has concluded that this action will not have a significant economic impact on a substantial number of small entities. We have determined that six small firms in the industries affected by the final rule may be affected. Out of the six affected small firms, none are estimated to have compliance costs that exceed one percent of their revenues.

In addition, the final rule is likely to increase profits at the many small firms not adversely affected by the final rule due to the very slight increase in market prices. The median compliance cost to sales estimates for the affected small and large firms is virtually identical (0.02 percent compared to less than 0.01 percent for the large firms) and no small firms are expected to close in response to incurring the compliance costs associated with the final rule.

Although the final rule will not have a significant economic impact on a substantial number of small entities, the final rule includes provisions that will minimize the impact on small entities in several ways. We chose to set the control requirements at the MACT floor control level and not at a control level more stringent. The transfer rack cutoff, based on facilitywide throughput, and tank size cutoffs in the final rule will reduce the effects on small businesses. We have identified a list of 98 HAP from the list of 188 in the CAA to be considered for regulation. Regulated liquids are non-crude oil organic liquids that contain at least 5 percent by weight of the 98 HAP listed in Table 1 to subpart EEEE of part 63 and a vapor pressure of at least 0.1 psia, and all crude oil after the first point of custody transfer after the production field. In addition, we worked with various trade associations during the development of the rulemaking. These actions have reduced the economic impact on small entities from the final rule.

D. Unfunded Mandates Reform Act

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Under section 202 of the UMRA, EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures by State, local, and tribal governments, in aggregate, or by the private sector, of $100 million or more in any 1 year. Before promulgating an EPA rule for which a written statement is needed, section 205 of the UMRA generally requires EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective, or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows EPA to adopt an alternative other than the least costly, most cost-effective, or least burdensome alternative if the Administrator publishes with the final rule an explanation of why that alternative was not adopted. Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, it must have developed under section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements.

The EPA has determined that today's final rule does not include a Federal mandate that may result in estimated costs of $100 million or more to State, local, or tribal governments in the aggregate, or to the private sector. Therefore, the requirements of the UMRA do not apply to this action.

E. Executive Order 13132: Federalism

Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that 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.”

Under Executive Order 13132, EPA may not issue a regulation that has federalism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, or EPA consults with State and local officials early in the process of developing the proposed regulation. The EPA also may not issue a regulation that has federalism implications and that preempts State law unless EPA consults with State and local officials early in the process of developing the regulation.

The final rule 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, as specified in Executive Order 13132. Furthermore, the final OLD NESHAP do not require these governments to take on any new responsibilities. Therefore, the requirements of section 6 of Executive Order 13132 does not apply to the final rule.

F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments

Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 6, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” “Policies that have tribal implications” is defined in the Executive Order to include regulations that have “substantial direct effects on one or more Indian tribes, on the relationship between the Federal government and the Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes.”

The final rule does not have tribal implications. It will not have substantial direct effects on tribal governments, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes, as specified in Executive Order 13175. No affected plant sites are known to be owned or operated by Indian tribal governments. Thus, Executive Order 13175 does not apply to the final rule.

G. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks

Executive Order 13045 (62 FR 19885, April 23, 1997) applies to any rule that: (1) Is determined to be “economically significant” as defined under Executive Order 12866, and (2) concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, EPA must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by EPA.

The EPA interprets Executive Order 13045 as applying only to those regulatory actions that are based on health or safety risks, such that the analysis required under section 5-501 of the Executive Order has the potential to influence the regulation. The final rule is not subject to Executive Order 13045 because it is based on technology performance and not on health or safety risks. No children's risk analysis was performed because no alternative technologies exist that would provide greater stringency at a reasonable cost; therefore, the results of any such analysis would have no impact on the stringency decision.

H. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution, or Use

The final rule is not subject to Executive Order 13211 (66 FR 28355, May 22, 2001). The rule is not a “significant energy action” because it is not likely to have a significant adverse effect on the supply, distribution, and use of energy. The reduction in petroleum product output, which includes reductions in fuel production, is estimated at only 0.006 percent, or about 311 barrels per day (about 15,500 metric tons per year). The reduction in coal, natural gas, and electricity output is expected to be negligible. The increase in price of petroleum products is estimated to be only 0.001 percent nationwide. While energy distribution services such as pipeline operations will be directly affected by the final rule, energy distribution costs are expected to increase by only 0.1 percent. We estimate that there will be a slight increase of only 0.001 percent of net imports (imports — exports), and no other adverse outcomes are expected to occur with regard to energy supplies. Given the minimal impacts on energy supply, distribution, and use as a whole nationally, all of which are under the threshold screening criteria for compliance with this Executive Order established by the Office of Management and Budget, no significant adverse energy effects are expected to occur.

I. National Technology Transfer and Advancement Act

Section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) of 1995 (Public Law No. 104-113; 15 U.S.C. 272 note) directs the EPA to use voluntary consensus standards in their regulatory and procurement activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, business practices) developed or adopted by one or more voluntary consensus bodies. The NTTAA directs EPA to provide Congress, through annual reports to OMB, with explanations when an agency does not use available and applicable voluntary consensus standards.

The final rule involves technical standards. The EPA cites the following standards in the final rule: EPA Methods 1, 1A, 2, 2A, 2C, 2D, 2F, 2G, 3, 3B, 4, 18, 21, 25, 25A, 27, 311, 316 (formaldehyde). Consistent with the NTTAA, EPA conducted searches to identify voluntary consensus standards in addition to these EPA methods. No applicable voluntary consensus standards were identified for EPA Methods 1A, 2A, 2D, 2F, 2G, 21, 27, 311, and 316. The search and review results have been documented and are placed in the docket (docket numbers A-98-13 and OAR-2003-0138) for the final rule.

Three voluntary consensus standards were identified as appropriate to the final rule. The voluntary consensus standard ASTM D6420-99, “Standard Test Method for Determination of Gaseous Organic Compounds by Direct Interface Gas Chromatography-Mass Spectrometry (GC/MS),” is appropriate in the cases described below for inclusion in the final rule in addition to EPA Method 18 codified at 40 CFR part 60, Appendix A, for measurement of organic HAP or total organic compounds. Therefore, the standard ASTM D6420-99 is cited in today's final rule.

Similar to EPA's performance-based Method 18, ASTM D6420-99 is also a performance-based method for measurement of gaseous organic compounds. However, ASTM D6420-99 was written to support the specific use of highly portable and automated GC/MS. While offering advantages over the traditional EPA Method 18, the ASTM method does allow some less stringent criteria for accepting GC/MS results than required by EPA Method 18. Therefore, ASTM D6420-99 is a suitable alternative to EPA Method 18 only where: the target compound(s) are those listed in Section 1.1 of ASTM D6420-99; and the target concentration is between 150 ppbv and 100 ppmv.

For target compound(s) not listed in Section 1.1 of ASTM D6420-99, but potentially detected by mass spectrometry, the regulation specifies that the additional system continuing calibration check after each run, as detailed in Section 10.5.3 of the ASTM method, must be followed, met, documented, and submitted with the data report even if there is no moisture condenser used or the compound is not considered water soluble. For target compound(s) not listed in Section 1.1 of ASTM D6420-99, and not amenable to detection by mass spectrometry, ASTM D6420-99 does not apply.

As a result, EPA included ASTM D6420-99 in the final rule, and EPA Method 18 as a gas chromatography (GC) option in addition to ASTM D6420-99. This will allow the continued use of GC configurations other than GC/MS.

Two additional voluntary consensus standards, ASTM D2879-83 “Standard Test Method for Vapor Pressure-Temperature Relationship and Initial Decomposition Temperature of Liquids by Isoteniscope,” and API Publication 2517 “Evaporative Loss from External Floating-Roof Tanks, Third Edition, February 1989,” were already incorporated by reference in 40 CFR § 63.14 and are also being cited in the final rule for measurement of vapor pressure.

Five voluntary consensus standards: ASTM D1979-91, ASTM D3432-89, ASTM D4747-87, ASTM D4827-93, and ASTM PS9-94 are incorporated by reference in EPA Method 311.

The search for emissions measurement procedures identified nine other voluntary consensus standards. The EPA determined that seven of these nine standards identified for measuring emissions of the HAP or surrogates subject to emission standards in the final rule were impractical alternatives to EPA test methods for the purposes of the final rule. Therefore, EPA does not intend to adopt these standards for this purpose. The reasons for this determination for the seven methods are discussed in the docket.

Two of the nine voluntary consensus standards identified in this search were not available at the time the review was conducted for the purposes of the final rule because they are under development by a voluntary consensus body: ASME/BSR MFC 13M, “Flow Measurement by Velocity Traverse,” for EPA Method 2 (and possibly 1); and ASME/BSR MFC 12M, “Flow in Closed Conduits Using Multiport Averaging Pitot Primary Flowmeters,” for EPA Method 2.

Section 63.2362 and Table 5 to subpart EEEE of part 63 list the EPA testing methods included in the regulation. Under § 63.7(f) and § 63.8(f) of subpart A of the General Provisions, a source may apply to EPA for permission to use alternative test methods or alternative monitoring requirements in place of any of the EPA testing methods, performance specifications, or procedures.

J. Congressional Review Act

The Congressional Review Act, 5 U.S.C. § 801 et seq., as added by the SBREFA, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. The EPA will submit a report containing this final rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the final rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. § 804(2). The final rule will be effective on February 3, 2004.

List of Subjects in 40 CFR Part 63

• Environmental protection
• Air pollution control
• Hazardous substances
• Incorporation by reference
• Reporting and recordkeeping requirements

For the reasons stated in the preamble, title 40, chapter I, part 63 of the Code of Federal Regulations is amended as follows:

PART 63—[AMENDED]

Subpart A—[Amended]

1. The authority citation for part 63 continues to read as follows:

Authority: 42 U.S.C. 7401, et seq.

2. Section 63.14 is amended by revising paragraphs (b)(8) and (c)(1) to read as follows:

3. Part 63 is amended by adding a new subpart EEEE to read as follows:

Subpart EEEE—National Emission Standards for Hazardous Air Pollutants: Organic Liquids Distribution (Non-Gasoline)

What This Subpart Covers