EPA 450/5-84-QQ1
        RESPONSE TO PUBLIC COMMENTS ON  EPA'S



LISTING AND REGULATION OF  BENZENE UNDER SECTION  112:



        COMMENTS OF A GENERAL  POLICY NATURE
    Office of Air Quality  Planning  and  Standards



        U.S. Environmental  Protection Agency



        Research Triangle  Park,  N.C.  27711
                      May 1984

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                                                                ENVIRONMENTAL
                                                                  PROTECTION
                                                                    AGENCY
                                                                 DALLAS, TEXAS

                                                                          1Y
NOTE:  Commenters are identified by the rulemaking docket numbers assigned
their submissions.   The relevant dockets are as follows:

     OAQPS-79-3         Benzene Listing and Maleic Anhydride Standard

     A-79-27            Benzene Fugitive Emissions Standard

     A-79-49            Ethylbenzene/Styrene Standard

     A-80-14            Benzene Storage Vessel Standard

     OAQPS-79-14        Airborne Carcinogen Policy

A number of commenters submitted multiple or duplicate comments to several  of
the dockets.  While EPA has made an effort to reference representative comment
sources, the citations should not be considered an exhaustive record of the
docket items addressing a  particular issue.

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1.0  INTRODUCTION

     In addition to comments on the decision  to  list  benzene,  addressed

in "Response to Public Comments on  EPA's  Listing of Benzene  Under

Section 112" (EPA 450/5-82-003),  EPA received a  number  of  oral  and written

submissions addressing the procedures followed by EPA in evaluating  the

public health hazard posed by benzene,  selecting sources for regulation,

and determining appropriate levels  of control.   Many  of the  procedural

comments referenced statements made by  the Agency in  a  related  rulemaking

proposal (44FR58642, October 10,  1979)  to establish an  EPA policy for the

identification, assessment, and regulation of airborne  carcinogens.1  EPA

has not, at this time, published  a  final  policy.   Relevant comments  from

the carcinogen policy record, however,  are included in  the discussion

below and EPA's responses reflect consideration  of the  comments from both

sources.

2.0  COMMENTS OF A GENERAL POLICY NATURE

     The comments are divided into  four major policy  issues:   1) the role

of quantitative risk estimation in  the regulatory process; 2)  the appropriate

criteria for listing an airborne  carcinogen under Section  112;  3) the appro-

priate criteria for assigning regulatory  priorities to  emitting sources; and

4) the requirement of best available technology  (BAT) for  selected source

categories and the evaluation of  residual  risks  in determining  the appropriate

level  of control under section 112.
 U.S. Environmental  Protection Agency  "Policy  and  Procedures  for  Identifying
 Assessing, and Regulating Airborne Substances Posing  a  Risk  of Cancer; Notice
 of Proposed Rulemaking" 44 FR 58642,  October  10,  1979.

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     2.1  The Role of Quantitative  Risk  Estimation in the Regulatory Process
     Commenters were significantly  divided  on  the general issues  of the
accuracy and reliability of quantitative risk  assessment (QRA) for carcinogens
as well  as on the utility of such estimates  in the regulatory decision process.
Proponents of quantitative risk  assessment  (QRA), primarily industry and trade
association commenters,  held that such assessments, when based on reliable
data, should play an important role at all  stages of decisionmaking on
potential  airborne carcinogens (OAQPS-79-3(Part ID-IY-D-23, IV-F-1 , IV-F-9;
OAQPS-79-14-IY-D-65,73,74,78,79,88,90a,94,97,102,104,110,116,117,1193,128,129,
130-133,135,195).  Comments largely  from public interest groups,  State air
pollution control agencies, and  private  individuals, expressed concern that
the underlying uncertainties in  attempting  to  quantify cancer risks greatly
reduces  the reliability  of such  estimates and  argues for limiting or avoiding
their use in the regulatory process (OAQPS-79-3(Part II)-IY-F-4;OAQPS-79-14-
IV-D-52,118,120,179a,184,194,G-8) and that  such use is not required by the
language of the Clean Air Act (A-79-25-IY-D-31).
     Commenters skeptical  of the utility of  QRA cited a number of reasons for
discounting the reliability of numerical  risk  estimates.  These included:
uncertainties in dose extrapolation and  scaling factors; differing
sensitivities and metabolic pathways in  humans versus laboratory  animals;
confounding variables, potential interactions,  and synergism; latency
and unknown exposure levels in epidemiological  studies; and the general
unreliability of exposure monitoring and modeling techniques (OAQPS
79-3(Part ID-IV-F-4; OAQPS-79-14-IV-D-118,  IV-G-8).  Organizations
taking this view suggested that  EPA place less emphasis on QRA (OAQPS-79-
14-IV-D-120), attempt to characterize the uncertainty in such estimates
by presenting them as ranges (OAQPS-79-14IV-D-120,IV-D-194), and  limit

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their role in the decision process  to a  rough  indicator  of  relative  risk
for use in the assignment of regulatory  priorities  (OAQPS-79-3(Part  II)-
IV-F4; OAQPS-79-14-IV-D-118,120,1 79a,l 94).
     Of the role of risk estimates  in cost/benefit  analysis,  two  commenters
argued that EPA lacked authority to engage  in  such  practices  under
section 112.  The commenters stated further that Congress recognized the
difficulties, given the current state of scientific knowledge,  with
attempting to quantify an "ample margin  of  safety."  Congress did not
require EPA to delay regulation in  the absence of such quantification or
to undertake "sham quantitative risk analysis."  (A-79-27-IV-D-27;
A-80-14-IV-D-19).
     EPA Response
     EPA has considered the comments on  the role of quantitative  risk
assessment in the regulatory decision process  for airborne  carcinogens  and
concludes that, while numerical  estimates of risk offer  a clear appeal  over
non-quantitative data in regulatory decisionmaking,  the  importance ascribed
to such information must be in proportion to its reliability.   EPA agrees
that QRA can provide meaningful  information to the  decision process  but
disagrees with comments suggesting  that  risk assessments should be the
sole criterion for decisionmaking.
     Where risk estimation is feasible and  some measure  of  confidence is
obtainable, EPA will perform quantitative assessments for use in  the ap-
propriate stages of the regulatory  process.  For potential  airborne  car-
cinogens, these stages could include: comparisons  between  pollutants;  com-
parisons among source categories of a pollutant; selection  of appropriate
control levels; and the evaluation  of residual  risks.

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     EPA does not agree that the Agency lacks  authority to consider  risk

estimation or other social  and  economic factors in the determination of

whether an "ample margin of safety"  is provided by a given control level.

First, the primary purpose of section 112  is to improve public health

and QRA, despite its limitations,  is the best  tool available for  evaluating

the health consequences of environmental pollution.  Second, EPA  believes

that the Congress1 direction that standards under section 112 provide an

"ample margin of safety" does not require  the  total elimination of risk.

Given the serious economic consequences of total elimination of risk for

the control  of non-threshold pollutants such as carcinogens, EPA  feels

that, had this been the intent,  Congress would have spoken more explicitly,

as it did in the Delaney Clause of the Food and Drug Act2, prohibiting

the use of any food additive found to induce cancer.

     In this interpretation, EPA is  following  the approach enunciated by

the U.S. Suprement Court in Industrial Union Department AFL-CIO v.

American Petroleum Institute, 448 U.S. 607 (1980), in which it stated

that:

     "By empowering the Secretary to promulgate standards that are
     'reasonably necessary or appropriate  to provide safe or healthful
     employment and places for employment,' the Act implies that,
     before promulgating any standard, the Secretary must make a  finding
     that the workplaces in question are not safe.  But 'safe' is not
     the equivalent of 'risk-free.'  There are many activities that
     we engage in every day—such as driving a car . . .--that entail
     some risk of accident or material health  impairment; nevertheless,
     few people would consider these activities 'unsafe.1  Similarly,
     a workplace can hardly be considered  'unsafe1 unless it threatens
     the workers with a significant  risk of harm.

     Therefore, before he can promulgate any permanent health or  safety
     standard, the Secretary is required to make a threshold finding
     that a place of employment is unsafe—in  the sense that significant
     risks are present ..."
221  U.S.C. 348(c)(3)(A)

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     Where the presence of some  residual  risk  is likely, EPA believes
that it is appropriate and necessary to attempt to characterize this risk
and to consider it along with  other factors in the determinations of the
appropriate level  of control.  EPA does not agree that such consideration,
appropriately tempered by an  awareness of the  uncertainties in such
analysis, would delay regulation or represent  "sham quantitative risk
analysis."
     2.2  The Appropriate Criteria for Listing an Airborne
           Carcinogen Under Section 112
     A number of commenters expressed concern  over the criteria for listing a
substance under section 112 as described  in EPA's proposed airborne carcinogen
policy (44 FR 58642).  The criteria provided that EPA would list under section
112 substances that 1) had a  high probability  of being human carcinogens, and
2) were emitted into the ambient air from one  or more categories of stationary
sources in amounts sufficient  to significantly expose human populations.  The
listing decision would be based  on preliminary assessments of carcinogenicity
and human exposure.  Several  commenters objected to the listing criteria on
the grounds that a "low hurdle"  based on  preliminary studies was unwarranted
and unrealistic (OAQPS-79-3(Part ID-IV-F-1 ,IV-F-9; OAQPS-79-14-IV-D-26,
90a,106,110,135).   One commenter argued that EPA must conduct more than a
risk assessment to justify listing (OAQPS-79-3(Part ID-IV-F-9).  A number
of commenters felt that EPA had  underestimated the impact of the listing
decision itself, and should avoid listing until such time as a reasoned
and supported judgment could  be  made (OAQPS-79-3(Part ID-IV-F-9; OAQPS-79-
14,IV-D-77,79,97,112,116,179a,l 92).

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     It was the view of five commenters  that EPA  should publish, and take
public comment on, the basis for listing prior  to a listing decision (OAQPS-
79-14-IV-D-51 ,55,60,73,199).  Six commenters suggested that EPA make public
the list of pollutants under assessment  as candidates for listing  (OAQPS-79-
14-IV-D-60,75,77,86,90a,157).
     Commenters were divided on the  use  of quantitative risk assessment (QRA)
in the listing decision,  with  positions  ranging from the use of QRA as the
listing basis (OAQPS-79-14-IV-D-94), to  use as  a  factor in the decision
(OAQPS-79-3(Part ID-IV-F-9; OAQPS-79-14-IV-D-67,97,116,1 39,199),  to the
establishment of a risk "benchmark"  for  listing (OAQPS-79-14-IV-0-79), and
finally, to having no appropriate role in the listing decision (OAQPS-79-14-
IY-D-100).
     Two commenters requested  more guidance on  and a definition of
"significant" as applied  to the human exposure  criterion (OAQPS-79-14-IV-D-
63,IV-D-118).  One commenter felt the listing decision format was  not clear
(OAQPS-79-14-IY-D-104).
     Two commenters suggested  that the final policy should include specific
criteria for delisting as well  as listing substances (OAQPS-79-14-IV-D-94,
IY-D-199).
     One commenter recommended that  EPA  proceed to list all substances
currently regulated as carcinogens by other agencies (OAQPS-79-14-IV-0-140).
     EPA Response:
     In consideration of  comments on the nature of the "significance"
criterion for human exposure,  it remains EPA's  opinion that the test of
significance is largely judgmental and does not lend itself to rigid quanti-
fication.  A judgment of  significance depends not only on the magnitude of

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emissions and consequent exposure levels,  but  also on the distribution
of emissions including the number and  nature of  emitting sources.
     Delisting procedures are adequately described in section 112(b)(l)(B).
EPA does not see a need for further discussion or interpretation of the
del isting process.
     EPA does not consider the wholesale listing of  all substances currently
regulated as carcinogens by other agencies  as  a  feasible or warranted
action.  First,  listing under section  112  requires a finding that a substance
"contributes to air pollution."  Moreover,  in  EPA's  judgment only substances
having a significant effect on public  health should  be listed.  The mere
fact that a substance is regulated as  a carcinogen in Pharmaceuticals,
cosmetics or food does not show that it meets  these  criteria.
     Second, section 112 directs that  the  Administrator should list only those
pollutants "for which he intends to establish  an emission standard."  In the
absence of an assessment of the emitting sources, such intent would not be
established.
     2.3  The Appropriate Criteria for Assigning Regulatory Priorities to
          Emitting Sources
     Most commenters supported a mechanism  for assigning regulatory priorities
to categories of stationary sources emitting a hazardous air pollutant.  Some
saw such a process as a means of diverting  attention away from "small cancer
risks" (OAQPS-79-3(Part D-IY-D-13), others as a means of focusing regulatory
attention on the "worst offenders" (OAQPS-79-14-IV-G-6).
     Commenters were generally supportive  of the use of risk estimates in
priority assignment as a measure of health  hazard.   Three commenters felt that
risk estimates should weigh equally with the non-risk criteria (feasibility,

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ease of control) in the determination  (OAQPS-79-14-IV-D-90a,190a,191).  One
commenter suggested that only the extent  of  the  health  hazard  be  used  to make
distinction (OAQPS-79-14-IV-D-115).  One  commenter  approved  the use  of  risk
estimates but only as a "rough measure"  (OAQPS-79-14-IV-D-118).
     Two commenters suggested that the risk  estimates be  combined with
projected control  costs to permit measures of  cost-effectiveness  to  be
factored into the priority process (OAQPS-79-3(Part D-IV-D-23; OAQPS-79-
14-IV-D-26).
     One commenter maintained that EPA should  develop priorities  across
pollutants as well as across source categories of a particular pollutant
(OAQPS-79-14-IV-D-79).
     EPA Response:
     EPA envisioned the priority  assignment  process as  serving two purposes:
first, the identification of those categories  of sources  which presented
potentially the greatest hazards  to public health;  and, second, the
identification of those sources for which the  regulatory  and control
dollar would go furthest in reducing the  hazards.   In combination, these
aims would ensure that the most important and  tractable problems  would  be
addressed on a priority basis.
     EPA agrees that non-risk criteria are important in the  assignment  of
priorities.  Setting priorities based  on  estimates  of health hazard  alone
could result in resource-intensive regulations with little health benefit.
     EPA recognizes the advantages of  combining  risk estimates with  proposed
emission reduction and control costs in the  derivation  of "cost effectiveness"
figures.  Such estimates would be, however,  preliminary since  the extent
and cost of possible control would not be well enough known  at this  stage  to
permit firm estimates.

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     EPA has considered expanding  the priority  process  to  include other
pollutants.  There are difficulties  with  such an  approach, however.  The
staggered timing of listings would make it  difficult to coordinate
priorities, but to the extent possible, EPA does  attempt to set priorities
for regulation development across  pollutants.
     The availability of resources for regulatory development will influence
the assignment of priorities for  source categories of a listed substance.
Actions planned or underway for source categories of previously listed
pollutants will be considered in  the priority assignment process.  While it
is possible that an ongoing action could  be suspended to divert resources to
a higher priority project, EPA anticipates  that such redirections would be
i nfrequent.

     2.4  The Requirement of Best  Available Technology  (BAT) as the Minimum
          Level of Control for Selected Source  Categories
     Although most commenters endorsed EPA's proposed procedure for
consideration of economic and technological feasibility in the development of
emission standards under section  112, the automatic requirement of best
available technology (BAT) was often criticized as unnecessarily rigid and
not reflective of Congressional intent.   A  number of commenters argued that a
level  of control less stringent than BAT  could  be appropriate where the health
risks are low (OAQPS-79-3(Part ID-IY-D-22; OAQPS-79-14-IV-D-132, IV-D-155).
Similarly, several commenters argued that the imposition of BAT could result
in excessive control (OAQPS-79-14-IV-D-29), arbitrarily chosen (OAQPS-79-14-
IV-D-65), with no statutory support  (OAQPS-79-3(Part D-IV-D-5), and no
evidence that the avoidable risks  were unreasonable (OAQPS-79-14-IY-D-87).

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     Several  commenters suggested  that  health  risks  should  be  considered in
establishing BAT (OAQPS-79-14-IV-D-73,90a,155)  or  that cost benefit analysis
should be performed (OAQPS-79-H-IV-D-29-90a,97).  One commenter  recommended
EPA determine acceptable risk levels  in place  of a BAT minimum control level
(OAQPS-79-14-IY-D-135).
     Two commenters suggested as  alternatives  to BAT:  "reasonably available
control technology" (OAQPS-79-14-IV-D-187),  and "best available retrofit
technology" (OAQPS-79-14-IV-D-195).
     One commenter argued that section  112 contained the presumption  of a zero-
emission standard, and contended  that an evaluation  of "residual  risk" goes
farther than EPA is authorized in  the consideration  of technical  and
economic factors, and argued that  BAT was inadequate to address the
hazardous posed by substances for  which no level of  exposure could be
considered safe (A-79-27-IV-D31 ;A-80-14-IY-D-19).
     EPA Response:
     Section 112 provides that standards must  be set so as  to  protect public
health with an ample margin of safety.3  Historically, EPA  has responded
to this mandate by requiring for  source categories determined  to  pose
significant cancer risks, the application of best  available technology
(BAT), considering costs, non-air  quality health and environmental, and
energy impacts, and then evaluating  the residual risks to determine the
need for further controls.
     Where a health effects threshold can be determined, the margin of
safety requirement can be met by  establishing  the  standard  at  a level
that insures that the exposure threshold is  highly unlikely to be exceeded.
3 Clean Air Act as amended August,  1977,  Section  112(b)0 ) (B) ,p.38.

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Cases may also arise where the reductions  in  the  estimated  health  risks
obtainable with the application of  BAT  are so small  that  little  health
benefit would be realized.
     In establishing the appropriate level  of control  for carcinogens,
EPA views the objective as a judgment of the  extent  to which  the estimated
risk of cancer must be reduced before the  degree  of  control can  be considered
amply protective.  Two choices are  available:   either  the emission standards
must be set at zero to eliminate the risk  of  cancer  altogether,  or some
residual risk must be permitted.  In the absence  of  specific  direction on
this choice in section 112 and in recognition of  the drastic  economic
consequences that could follow a requirement  to eliminate all  risk from
carcinogenic emissions, EPA believes that  it  is not  the intent of  this
section to eliminate totally all risks  and that section 112 standards
which permit some level of residual  risk,  therefore, provide  an  ample
margin of safety to protect public  health.
     Over the past several years, the Agency  has  explored a number of
approaches to the evaluation of residual risks and the determination of what
constitutes an amply protective standard under section 112.   In  EPA's
judgment, the decision that a particular residual risk is not unreasonable
cannot be based solely on the level  of  risk.   Other  factors which*influence
society's ability to estimate and to mitigate such risks  must also be
considered.  These include the uncertainties  inherent  in  the  estimation of
carcinogenic risk as well as the social and economic impacts  of  further
emission reductions.
     In determining BAT for source  categories regulated under section
112, the Agency first identifies alternative  levels  of control which have

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control  may have actually been achieved  by  representative  plants  in  the
source categories.  The Agency determines the  costs  and  associated impacts
of the various alternatives.   The Administrator  selects  that  alternative
which achieves the most emission reduction  and/or  risk reduction  without
incurring unreasonably adverse impacts  of one  type or another.  As suggested
by one of the commenters, retrofit costs are considered  when  determining
the appropriate control level  for existing  source  categories.  A  particular
regulatory alternative may be rejected  for  a variety of  reasons,  among
them that:  it is judged to result in a  price  increase that adversely
affects consumers to an unreasonable extent; it  will result in plant
closures or unreasonably discourage the  construction of  new plants due to
reduced return on investment or capital  inavailability;  or it has reasonably
high costs for the amount of emission or risk  achieved.
     After selecting BAT for each source category  to be  regulated, EPA
evaluates the incremental reductions in  health risks obtainable against
the incremental costs and economic impacts  estimated to  result from  the
application of more stringent control alternatives.  Based on this
evaluation of the risks remaining after  the application  of the control
technology and the impacts of further control, EPA determines whether the
residual risks are unreasonable.  If not, BAT  represents an appropriate
level of control that provides an ample  margin of  safety to protect  human
health.  If the residual risks are unreasonable, the standard will be set
at a more stringent level.
     Although the BAT approach has been  used in  recent benzene rulemakings,
EPA has come to recognize that it may give  limited and indirect weight to
information on exposure and health risks in determining  BAT and more direct

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weight to the amount of emissions reduced.   For  example,  in  determining  BAT



for emission sources, the Agency relies  on  estimates  of  the  total  emissions



reduced and on estimates of the average  and incremental  cost of  reducing



those emissions.  However, the Agency recognizes  that emission estimates



along can sometimes be poor measures of  public health risks  because  they



do not account for the carcinogenic  potency or exposure  potential  of



hazardous air pollutant emissions.



     In order to more directly consider  health risks,  the Agency  is



considering changing the approach for selecting  the appropriate  control



levels for hazardous air pollutants. The alternative approach would



combine the current two-step process into one step.   In  selecting the



appropriate control technique, EPA would consider in  one step the before-



and societal costs of achieving those risk  reductions.   The  major change in



this approach would be the greater consideration  of public health risks



over emission estimates in selecting controls.



     EPA has considered the adoption of  acceptable risk  levels and cost



per life saved targets, but considers such  goals  less desirable  than an



approach which considers not only the health risks but other economic,



energy, and environmental impacts of regualtory  alternatives.  Risk



targets are difficult to establish and give no weight to the feasibility



of risk reduction or other benefits  of regulation.

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