United States Air and Radiation EPA420-R-00-024
Environmental Protection December 2000
Agency
vxEPA Control of Emissions of
Hazardous Air Pollutants
from Mobile Sources:
Response to Comments
> Printed on Recycled Paper
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£ ERA
EPA420-R-00-024
December 2000
Control of Emissions of Hazardous
Air Pollutants from Mobile Sources:
Response to Comments
Assessment and Standards Division
Office of Transportation and Air Quality
U.S. Environmental Protection Agency
Docket A2000-12
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December 20, 2000
RESPONSE TO COMMENTS DOCUMENT
CONTROL OF EMISSIONS OF HAZARDOUS AIR POLLUTANTS
FROM MOBILE SOURCES
Table of Contents
ISSUE 1: GENERAL POSITION STATEMENTS 1
1.1: Supports Rule 1
1.2: Opposes Rule 1
ISSUE 2: ADEQUACY OF THE PROPOSAL 3
2.1: Statutory Obligations 3
2.2: Adequacy of Rule to Address Public Health & Welfare Concerns 6
2.3: Environmental Justice Concerns 11
2.4: Consistency with UAT Strategy 11
ISSUE 3: DESIGNATION OF MSATS 13
3.1: General Comments on MSAT List 13
3.2: Methodology for Identifying MSATs 13
3.3: Compounds on MSAT List 13
3.3.1: Specific Pollutants to Exclude from List 13
3.3.2: Additional Pollutants that EPA Should List 15
3.3.3: Listing of Diesel Exhaust 15
ISSUE 4: CURRENT CONTROLS ON MSAT EMISSIONS 19
4.1: On-highway Controls 19
4.2: Off-highway Controls 19
ISSUE 5: VEHICLE-BASED CONTROLS 20
ISSUE 6: FUEL STANDARDS 21
6.1: General Comments to Support Anti-Backsliding Program 21
6.2: General Comments Opposing Anti-Backsliding Program 22
6.3: State Pre-emption 23
6.4: California Exemption 24
6.5: Form of Standard 25
6.5.1: Benzene Content Standard 25
6.5.2: Toxics Performance Standard 26
6.5.3: Benzene Emissions Standard 27
6.5.4: National Average-Based vs. Refinery-Based Standards 28
6.5.5: Alternative Standards 29
6.6: Ability to Meet Baseline Levels at No Cost 30
6.7: Start Date 35
6.8: Separate Standards for RFC & CG 36
6.9: Incremental Volumes 36
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RESPONSE TO COMMENTS DOCUMENT
TIER 2 MOTOR VEHICLE EMISSION STANDARDS AND
GASOLINE SULFUR CONTROL REQUIREMENTS
Table of Contents (cont.)
6.10: Appropriate Baseline Period 38
6.10.1: Proposed 1998-99 Baseline Period 38
6.10.2: Alternative Baseline Periods and Adjustments 40
6.10.3: Petitions for Alternative Baseline 43
6.11: Flexibility Provisions 43
6.11.1: 1-or 2-year Compliance Period 43
6.11.2: 1-year Carryover Option 44
6.11.3: Trading Program 45
6.11.4: Hardship Waiver 47
6.11.5: Aggregation of Refineries 48
6.11.6: Other Flexibility Options 48
6.12: Testing, Reporting and Recordkeeping, and Compliance/Enforcement Issues49
6.13: Economic Impacts 52
6.13.1: Costs 52
6.13.2: Benefits 55
6.14: Other Fuel Issues 56
6.14.1: Anti-dumping Program 56
6.14.2: Other Fuel Specifications 57
6.15: SBREFA and Small Refiner Flexibility Options 59
ISSUE 7: TECHNICAL ANALYSIS PLAN 61
ISSUE 8: PROPOSED FUTURE RULEMAKING 65
ISSUE 9: COMMENTER SUPPORTS OTHER'S COMMENTS 68
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CONTROL OF EMISSIONS OF HAZARDOUS AIR POLLUTANTS
FROM MOBILE SOURCES: RESPONSE TO COMMENTS
INTRODUCTION
Air toxics, which are also known as "hazardous air pollutants" or HAPs, are those
pollutants known or suspected to cause cancer or other serious health or environmental
effects. To address concerns about the potentially serious impacts of hazardous air
pollutants on public health and the environment, the Clean Air Act (the Act) as amended in
1990, includes a number of provisions that have led EPA to characterize, prioritize, and
control these emissions as appropriate. This rule on the control of hazardous air pollutants
from mobile sources addresses air toxics emissions from mobile sources in several ways.
First, we identify 21 Mobile Source Air Toxics (MSATs), including various VOCs as well as
metal compounds and diesel particulate matter + diesel exhaust organic gases (collectively
DPM + DEOG). Second, we examine the mobile source contribution to national inventories
of these compounds and the impacts of existing and proposed mobile source control
programs. Third, we set new gasoline toxic emission performance standards which require
refiners to maintain current levels of overcompliance with RFG and anti-dumping toxic
emission performance requirements. Finally, we establish a process to continue to conduct
research and analysis on mobile source air toxics. This includes a Technical Analysis Plan
which we will implement to continue to conduct research and analysis on mobile source air
toxics. Based on the results of that research, EPA will conduct a future rulemaking, to be
completed no later than July 1, 2004, in which we will revisit the feasibility and need for
additional air toxics controls for nonroad and highway engines and vehicles and their fuels
EPA proposed this rule on August 4, 2000, at 65 FR 48058. The proposal
announced the opportunity for written public comment until September 20, 2000. The
proposal also provided notice of public hearing, which was held on August 21, 2000 in
Romulus, Michigan.
Complete transcripts of the public hearings and the full text of each comment letter,
along with supporting information used in developing the regulation, are listed in Docket No.
A-2000-12. This docket is available for public inspection and copying between 8:00 a.m. and
5:30 p.m., Monday through Friday, excluding government holidays, at Room M-1500,
Waterside Mall, 401 M Street, S.W., Washington, D.C.
This document summarizes the written and oral comments submitted at the public
hearing as well as the comment letters received during the public comment period (Docket
Category IV-D), and records EPA's responses to those comments. In most cases in this
document, EPA has listed all of the commenters who made a specific comment. In other
instances, the Agency may have identified one or a representative number of commenters.
The reader should note that many of the most significant comments are also addressed in
the preamble for the final rule. Where appropriate, we have included cross-references in this
document to the corresponding discussion in the preamble.
EPA received comments from a wide variety of stakeholders, including gasoline
refiners, marketers, distributors and retailers; automobile manufacturers and parts suppliers;
industry research and trade groups; state and local agencies; environmental organizations;
and private citizens. A copy of each comment letter received is included in the rulemaking
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Response to Comments
Page iv
docket. A list of commenters and the EPA docket item number assigned to their
correspondence is also included in the docket. All of the comments have been carefully
considered and, where appropriate, changes have been made to the final regulation in
response to these comments.
Comments within a particular Issue (or Subissue) are divided into specific comments
(such as "Comment A" or Comment "A. 1"), so that comments and responses on specific
aspects of an Issue (Subissue) are grouped together. The lettering and numbering of these
comments preserves the Agency's internal classification of points raised on a particular issue
in the various comment letters. This approach allows for cross-referencing between
responses to related comments. In certain places, comments have been consolidated in a
logical manner for the Agency's response. Even in these consolidated comments, the
comment identification in this document preserves the Agency's internal lettering and
numbering identification system within an issue (for instance a comment may be identified as
"Comments A, F, G, N, and S" if those individual comments have a single consolidated
response.
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Response to Comments
December 20, 2000
Page 1
ISSUE 1: GENERAL POSITION STATEMENTS
1.1: Supports Rule
(A) Expressed limited support for the rule as proposed by EPA.
(1) While providing some support, commenters recommended several significant
changes, including tightening the benzene requirement (see Issue 2.2 for
more detailed comments) or expanding the rule to cover all aromatic
compounds (see Issue 6.14.2).
Letters:
Bluewater Network (IV-D-29) p. 1
Commonwealth of MA DEP (IV-D-13) p. 2
Oregon Environmental Council (IV-D-9) p. 1
(2) Commenter provides discussion of personal health concerns raised by
MSATs and other forms of pollution.
Letters:
Norman White (IV-G-1) p. 1
Response to issues 1.1(A)(1) and (2): Several commenters expressed general support for
our proposed program. Many of them also urged us to finalize standards that would go
beyond the anti-backsliding standards we proposed and set tighter gasoline benzene limits to
reduce mobile source benzene emissions. After consideration of all comments, we are
finalizing a two-step approach to air toxics control. The first step retains the proposed
gasoline air toxics anti-backsliding approach but includes a much broader set of gaseous air
toxics. By requiring refiners to maintain their 1998-2000 average gasoline toxics
performance levels, the standards we are finalizing focus on the five toxics used in the
Complex Model to demonstrate performance (benzene, formaldehyde, acetaldehyde, 1,3-
butadiene, and POM) instead of only benzene. Thus, the mass of air toxics placed under the
anti-backsliding controls is substantially increased. This approach offers broad protection to
public health because all five of these are toxics are known or probable human carcinogens.
At the same time, we remain sensitive to the potentially serious effects exposure to air toxics
may have on human health. Consequently, in the second step of this approach we will
implement the Technical Analysis Plan described in Section VII of the preamble for this rule.
Through this Plan we will continue to improve our understanding of the risk posed by air
toxics to public health and welfare. We will also evaluate the need for and appropriateness
of additional mobile source air toxics controls for on-highway vehicles and their fuels. Based
on the information developed through this technical analysis plan, we will conduct a future
rulemaking to be completed no later than July 1, 2004. During this rulemaking, EPA also
intends to evaluate emissions and potential strategies relating to hazardous air pollutants
from nonroad engines and vehicles and nonroad sources.
(B) Supports major aspects of the proposal.
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Response to Comments
December 20, 2000
Page 2
(1) See comments on specific topics in Issues 2-8.
Letters:
Alliance of Automobile Manufacturers (IV-D-11) p. 1
Alliance of Automobile Manufacturers (IV-F-1) p. 59
Association of International Automobile Manufacturers (IV-D-7) p. 1
Engine Manufacturers Association (IV-D-39) p. 10
Engine Manufacturers Association (IV-F-1) p. 10
Response to issue 1.1(B)(1): Commenters from the engine and vehicle manufacturing
industry generally supported our conclusion that additional vehicle-based controls are not
warranted at this time. Additional support for our conclusion that our Tier 2 light-duty vehicle
program and our proposed heavy-duty engine and vehicle standards achieve the greatest
degree of toxics control achievable at this time is provided in the preamble to this final rule
and our Technical Support Document.
1.2: Opposes Rule
(A) Rule is not sufficient to address concerns associated with MSATs.
(1) See commenters' detailed concerns under Issues 2.1-2.4.
Letters:
Clean Air Network, et al (IV-D-38) p. 1
Consumer Policy Institute (IV-D-8) p. 1
EarthJustice Legal Defense Fund (IV-D-32) p. 1
IL EPA (IV-D-28) p. 2
Puget Sound Clean Air Agency (IV-D-27) p. 1
STAPPA, ALAPCO (IV-D-22) p. 1-2
STAPPA, ALAPCO (IV-F-1) p. 44
Response to issue 1.2(A)(1): Section 202(l)(2) of the Clean Air Act calls on EPA to set
standards for emissions of hazardous air pollutants from motor vehicles and their fuels that
"reflect the greatest degree of emission reduction achievable through the application of
technology which will be available, taking into consideration [existing standards] and the
costs of the technology, and noise, energy, and safety factors, and lead time." Today's rule
adopts an anti-backsliding program that is an appropriate near-term control under this
provision. The anti-backsliding requirement can be implemented using existing technology,
at negligible costs, with little lead time. More stringent near-term controls do not appear
reasonable at this time. Requiring more than an anti-backsliding standard could require
refinery upgrades that could not be completed without additional lead time. In the near term,
refineries are already planning and investing in capital improvements and pursuing the
permitting necessary to upgrade their facilities to meet our regulations limiting the sulfur
content of fuels. While we lack the information to fully assess the benefits and costs of
further controls in the 2002 time frame, we have serious concerns that further toxics control in
this time frame could interfere with refiners' planning and affect their ability to meet our sulfur
standards.
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Response to Comments
December 20, 2000
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Although we conclude that additional near-term controls are not reasonable under
section 202(l)(2), there may be additional reductions of MSAT emissions that can be
achieved in the long-term. We are not ready, however to address these possible long-term
controls in this rulemaking. There is a considerable amount of uncertainty about the
effectiveness and costs of vehicle, fuel, and nonroad controls as well as about exposure and
risk for sensitive subpopulations, the range of total public exposure to air toxics, and the
inventory impacts of nonroad sources. We will collect information about these issues as part
of the Technical Analysis Plan we will implement as described in Section VII of the preamble
for this rule and will use this information in a future mobile source air toxics rulemaking to be
completed no later than July 1, 2004.
While several commenters expressed concern that this two-step approach delays
more stringent action, we believe it is appropriate because it allows us to design long-term
controls that will optimally reduce exposure to mobile source air toxics while implementing
controls immediately that ensure that the toxics emissions performance of gasoline does not
deteriorate in response to potential changes in fuel production processes.
(B) The rulemaking is without merit.
(1) The rule seeks to impose regulation on an already heavily burdened industry
while achieving no public health or demonstrated air quality benefit. Some of
these commenters added that EPA has failed to meet the basic regulatory
development requirement: to analyze the cost effectiveness of its regulations.
Letters:
American Petroleum Institute (IV-D-21) p. 1
American Petroleum Institute (IV-F-1) p. 33
Chevron (IV-D-34) p. 1
ExxonMobil (IV-D-16)p. 1
Marathon Ashland Petroleum, LLC (IV-D-15) p. 4-5
Murphy Oil Corporation (IV-D-17) p. 4-5
National Petrochemical and Refiners Association (IV-D-33) p. 1-2
Phillips Petroleum Company (IV-D-20) p. 2, 6
Silver Eagle Refining, Inc. (IV-D-18) p. 1
Response to issue 1.2(B)(1): The Clean Air Act requires EPA to set controls for at least
benzene and formaldehyde that "reflect the greatest degree of emission reduction achievable
through the application of technology which will be available, taking into consideration
[existing standards] and the costs of the technology, and noise, energy, and safety factors,
and lead time." The standards we are finalizing are designed to be a reasonable approach to
ensure that there is no backsliding on the toxics performance of gasoline. They are clearly
achievable in the near-term without imposing burdens on the refining industry because they
require simply that refiners maintain their current toxics performance levels and so impose
only negligible costs, if any. To fail to promulgate these standards would be to ignore the
clear direction of the Act. With regard to long-term controls, we will assess their costs and
benefits as part of the Technical Analysis Plan and our future rulemaking. Responses to
specific concerns about our cost-benefit analysis can be found under Issue 6.13.1, below.
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Response to Comments
December 20, 2000
Page 4
(2) The benzene content of gasoline is already limited under reformulated
gasoline and anti-dumping rules and it is not clear from the NPRM why this
level of control is not sufficiently protective of public health. Moreover, EPA
already expects the level of over-compliance to continue and even improve,
which appears to make a rule unnecessary. (See related comments under
Issue 6.13.2 about the lack of benefits.)
Letters:
U.S. Small Business Administration (IV-D-26) p. 2
American Petroleum Institute (IV-D-21) p. 2, app p. 3
Response to issue 1.2(B)(2): Because the air toxics addressed by the gasoline toxics
performance standard are known or probable human carcinogens, it is difficult to say what
level of control is sufficient to protect public health. What is clear, however, is that it is
desirable to avoid increases in exposure to these pollutants. The standards being finalized
will help prevent this from happening. As explained in our preamble and Technical Support
Document, the trend appears to be toward continued and perhaps further over-compliance
with the toxics requirements of the federal reformulated gasoline and anti-dumping programs.
However, instead of making this rule unnecessary, these trends support our conclusion that
tighter standards may be achievable in the long term since some of the technologies used to
achieve current levels of over-compliance may be applicable to broader segments of the
refining industry. Consequently, we will explore additional fuel-based air toxics controls in
our Technical Analysis Plan and will address such controls in our July 2004 rulemaking.
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Response to Comments
December 20, 2000
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ISSUE 2: ADEQUACY OF THE PROPOSAL
2.1: Statutory Obligations
(A) EPA has already met its statutory obligations, and is not required to further
regulate air toxics at this time.
(1) Any obligation under Section 202(1) to promulgate MSAT rules was met when
EPA promulgated the 1994 RFG/anti-dumping rulemaking. This point is
especially apparent given that there are no benefits assumed under this
proposal. Thus, EPA is under no further statutory or judicial obligation to
promulgate additional MSAT rules.
Letters:
American Petroleum Institute (IV-D-21) p. 3
American Petroleum Institute (IV-F-1) p. 34, 37-38
Chevron (IV-D-34) p. 1
ExxonMobil (IV-D-16)p. 1
Marathon Ashland Petroleum, LLC (IV-D-15) p. 5-6
Murphy Oil Corporation (IV-D-17) p. 5-6
Response to issue 2.1(A)(1): Our consent decree requires that we promulgate the
regulations described in section 202(l)(2). The regulations described in this section must
contain standards that respresent the greatest degree of emissions reductions achievable
considering the availability of the technology, cost, lead time and other factors. Our analysis
demonstrates that the current RFG and anti-dumping toxics performance standards do not
represent the greatest degree of emissions reductions achievable. We therefore disagree
with commenter's assertion that nothing more is required.
We also think it unlikely that Congress expected RFG to satisfy our obligation to
consider fuel-based controls in 202(l)(2). Commenter's suggestion would render 202(l)(2)
duplicative and meaningless. In fact, 202(l)(2) provides a broader scope for addressing toxics
for vehicles and fuels, a different criteria for determining the appropriate level of control and a
different time frame for action. If Congress had expected 1994 RFG/anti-dumping program
to satisfy its clearly-expressed concern about public exposure to air toxics, it would not have
required the Agency to establish, at a minimum, standards applying to benzene and
formaldehyde emissions in 1995 under section 202(1).
Finally, even if we could argue that, because of our RFG controls and anti-dumping,
nothing further is required under 202(l)(2), there is nothing in that section that precludes
further controls. Section 202(l)(2) clearly states that EPA shall "promulgate (and from time to
time revise" regulations..." In other words, Congress intended EPA to consider control of
emissions of hazardous air pollutants from motor vehicles and their fuels as an ongoing air
pollution issue. The Agency must consider potential controls and determine whether those
controls "reflect the greatest degree of emission reduction achievable through the application
of technology which will be available, taking into consideration [existing standards] and the
costs of the technology, and noise, energy, and safety factors, and lead time."
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Response to Comments
December 20, 2000
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As to the benefits of this program, while it is true that we have not claimed that this
ani-backsliding program will result in some quantifiable emissions reduction benefit, we
disagree with the suggestion that there are no benefits from preventing backsliding. By
ratcheting down the toxics performance standards, we have ensured that emissions
performance will not deteriorate below today's levels. Without today's anti-backsliding
program, the current standards would leave room for toxics emissions from gasoline-fueled
motor vehicles to increase by 70,000 tons per year over 1996 inventory levels. In addition,
as noted by Environmental Systems Products in their comments (IV-D-25, p. 12-13), the
legislative history of the Act suggests that the benefits of the standards EPA would establish
under Section 202(l)(2) would be in addition to benefits resulting from standards established
under other provisions of the Act. With regard to the benefits of this mobile source air toxics
rule, there are air quality and public health benefits associated with preserving the existing
over-compliance with the federal reformulated gasoline and anti-dumping requirements.
(2) EPA has already met the legal standard for controlling HAP emissions from
mobile sources through the aggressive and technology-forcing Tier 2 and
HDDE requirements which "reflect the greatest degree of emissions reduction
achievable through the application of technology which [will be] available for
the model year to which such standards apply."
Letters:
International Truck and Engine Corp. (IV-D-30) p. 2-3
Response to issue 2.1 (A)(2): We agree that our Tier 2 light-duty vehicle program and our
proposed heavy-duty engine and vehicle standards achieve the greatest degree of toxics
control achievable at this time. However, as noted above, Congress instructed EPA to "from
time to time" review these mobile source air toxics standards, and we will revisit the
technological feasibility and need for additional vehicle and fuel controls in a future
rulemaking, in 2003-2004.
(B) EPA's proposed MSAT regulations fail to meet the statutory mandate under the
CAA.
(1) Section 202(1) of the CAA requires EPA to address air toxics by setting motor
vehicle and fuel standards which "reflect the greatest degree of emission
reduction achievable through the application of technology which will be
available...." EPA has identified the threats posed by MSATs while pushing
forward only with regulation of criteria pollutants from mobile sources. EPA
has failed to deal comprehensively with emissions of criteria and toxic
pollutants in its rulemaking, and now suggests it may be infeasible to require
further vehicle or fuel controls. EPA's narrow interpretation of its obligation
under 202(1) falls far short of a comprehensive assessment of the air quality
and public health impact of mobile sources burning gasoline and diesel fuels.
One commenter added that EPA appears to establish as a precondition for
adopting additional requirements under section 202(1) that section 202(a)
controls are ineffective at controlling MSATs. That type of precondition is not
required by the statute and is erroneous.
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Response to Comments
December 20, 2000
Page?
Letters:
Clean Air Network, et al (IV-D-38) p. 1-2
Consumer Policy Institute (IV-D-8) p. 1-2
EarthJustice Legal Defense Fund (IV-D-32) p. 3-6, 8-9
IL EPA (IV-D-28) p. 2
NESCAUM (IV-D-10)p. 7-8, 10
STAPPA, ALAPCO (IV-D-22) p. 1-2
STAPPA, ALAPCO (IV-F-1) p. 43-44
Response to issue 2.1(B)(1): Section 202(l)(2) instructs us to set standards to control
hazardous air pollutants from motor vehicles, motor vehicle fuels, or both. These standards,
which may be revised from time to time, are to reflect the greatest degree of emission
reduction achievable through the application of technology which will be available, taking into
consideration the motor vehicle standards established under Section 202(a) of the Act, the
availability and cost of the technology, and noise, energy and safety factors, and lead time.
The regulations are to apply, at a minimum, to benzene and formaldehyde emissions, and
are to be set under Section 202(a) or211(c) of the Act.
We disagree with the assertion that we are suggesting it is infeasible to require
further vehicle or fuel controls, or that we are establishing as a precondition for adopting
additional requirements that the Section 202(a) controls are ineffective at controlling MSATs.
As described in our preamble and in the Technical Support document for this rulemaking, we
believe that the standards being finalized represent the greatest degree of emission
reductions achievable in the short term. There may be vehicle- and fuel-based opportunities
in the future to achieve additional MSAT emission reductions. However, because there is a
considerable amount of uncertainty about the effectiveness and costs of vehicle, fuel, and
nonroad controls as well as about exposure and risk for sensitive subpopulations, the range
of total public exposure to air toxics, and the inventory impacts of nonroad sources, we do not
believe it is reasonable to establish long-term standards at this time. We will collect
information about these issues as part of the Technical Analysis Plan we will implement as
described in Section VII of the preamble for this rule and will use this information in a future
mobile source air toxics rulemaking to be completed no later than July 1, 2004.
(2) The serious public health threats associated with MSATs in urban areas and
the clear statutory mandate of the CAA warrant immediate action by EPA.
The Agency relies on mass emission reductions of toxics projected from
previous regulations. For health risks many times over health based
thresholds, mass emissions reductions are an insufficient measure of the
effectiveness of control programs. The absence of any demonstration of the
health risks for each U.S. urban area, and the long time period (until 2020) to
realize the expected mass emissions reductions from existing control
programs demonstrate the inadequacies of the proposal to protect public
health. EPA cannot justify waiting another three years to take action on
MSATs.
Letters:
Consumer Policy Institute (IV-D-8) p. 1-2
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Response to Comments
December 20, 2000
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Response to issue 2.1(B)(2): As noted in the response to Issue 2.1.6(1) above, any action
that we take to reduce emissions of hazardous air pollutants from motor vehicles and their
fuels in response to the public health threats associated with MSAT emissions in urban areas
must meet the criteria of Section 202(1) of the Act. These criteria are clear: The standards set
by EPA must reflect "reflect the greatest degree of emission reduction achievable through the
application of technology which will be available, taking into consideration [existing
standards] and the costs of the technology, and noise, energy, and safety factors, and lead
time." To fulfill our statutory obligation, we analyzed vehicle- and fuel-based control options
to determine if further reduction were achievable. Based on this review, we concluded that a
new anti-backsliding fuel measure satisfied these criteria in the near-term and that we could
not reasonably establish long-term fuel controls without additional information. Our analysis
of vehicle-based controls led us to conclude that our promulgated and proposed vehicle
controls satisfy the criteria in 202(l)(2). These conclusions were not based on a
determination that these controls will achieve a sufficient level of emissions reductions, but
instead were based on a evaluation of the achievability of further reductions considering the
availaibility of technology, cost, lead time and the other criteria in 202(l)(2).
At the same time, we are sensitive to the potentially serious effects exposure to air
toxics may have on human health. Consequently, we will implement the Technical Analysis
Plan described in Section VII of the preamble for this rule. Through this Plan we will continue
to improve our understanding of the risk posed by air toxics to public health and welfare. We
will also evaluate the need for and appropriateness of additional mobile source air toxics
controls for on-highway and nonroad sources, and their fuels. Based on the information
developed through this technical analysis plan, we will conduct a future rulemaking to be
completed no later than July 1, 2004.
(3) The CAA requires that the regulations at a minimum apply to emissions of
benzene and formaldehyde. Yet in contrast to this clear direction from
Congress, EPA chose to consider only a benzene fuel control program in this
proposed rule. One commenter notes that EPA included no analysis of
formaldehyde fuel-based controls, and has had ample opportunity to do so.
Letters:
EarthJustice Legal Defense Fund (IV-D-32) p. 7-8
IL EPA (IV-D-28) p. 2
NESCAUM (IV-D-10) p. 2-3
Response to issue 2.1(B)(3): Several commenters urged us to consider establishing
controls for additional MSATs instead of focusing only on benzene. The standards we are
finalizing take these comments into account by setting toxics emissions performance
standards for gasoline instead of just a benzene standard. By requiring refiners to maintain
their 1998-2000 average gasoline toxics performance levels, the standards we are finalizing
focus on the five toxics used in the Complex Model to demonstrate performance (benzene,
formaldehyde, acetldehyde, 1,3-butadiene, and POM) instead of only benzene. Thus, the
mass of air toxics placed under anti-backsliding is substantially increased. It also offers
broader protection to public health because all five of these are toxics are known or probable
human carcinogens.
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Response to Comments
December 20, 2000
Page 9
(4) Reliance on measures already taken and the capping of benzene levels at
1998-99 levels do not adequately address areas such as the Puget Sound
region that have fuel benzene concentrations above the national average and
have not enjoyed the benefits of reformulated gasoline.
Letters:
Puget Sound Clean Air Agency (IV-D-27) p. 1
Response to issue 2.1(B)(4): We recognize that one of the potential drawbacks of setting
an anti-backsliding standard is that areas that currently have high benzene concentrations
may not see a reduction in their levels. However, we believe the final standards adopted in
this rule do not alter current state authority to establish more stringent state standards for fuel
benzene. More specifically, because we are promulgating toxics performance requirements
that are identical in form to the toxic performance standards already in place, today's rule
does not change the ability of States to regulate other gasoline characteristics or
components. As discussed in the NPRM, we believe a toxics performance requirement may
not cause States to be prohibited by section 211(c)(4) of the Act from setting their own fuel
benzene standard. Note, however, that any such State fuel benzene standard could only be
set for conventional gasoline because the reformulated gasoline regulations impose a federal
benzene standard on RFG, thus preempting States from setting a more stringent RFG
benzene standard.
(5) The text and statutory history of section 202(1) clearly contemplate that the
rules will provide air quality benefits over and above those obtained from
implementing other sections of the Act. A benzene cap that locks in current
practice cannot meet that statutory mandate.
Letters:
Environmental Systems Products (IV-D-25) p. 12-13
Response to issue 2.1(B)(5): The statute requires that we adopt controls that represent the
greatest degree of emissions reductions achievable. We have concluded that our vehicle-
based controls fulfill this statutory requirement, and that further control are not appropriate at
this time. For fuel-based controls, we determined that the current RFG and anti-dumping
toxics performance standards do not reflect the greatest degree of emission reduction
achievable. Therefore we are adopting new anti-backsliding requirement. These standards
will ensure continued reductions of toxics emissions beyond those currently required. At the
same time, we have concluded that additional controls are not appropriate in the near term.
As described in the preamble and Technical Support Document for this rule, the gasoline
toxics performance standard being finalized provides benefits over and above those obtained
from implementing other sections of the Act because it captures current levels of over-
compliance with those other programs and will prevent refiners from increasing their toxics
emissions up to the limits contained in the federal reformulated gasoline and anti-dumping
programs.
(6) EPA is required to evaluate at least a 0.6% or 1% benzene cap as
"achievable" under 202(1). EPA also needs to consider control measures for
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Response to Comments
December 20, 2000
Page 10
non-benzene HAPs and not just order a "toxics emission performance
standard." Individual caps for these pollutants must be considered. Likewise,
EPA fails to explain how the proposal addresses metals. If they are primarily
from lube oils, EPA fails to address the possibility of lube oil standards.
Similarly, EPA suggests a relationship between diesel fuel and aldehydes
with dioxin/furans, but fails to analyze whether the standards it proposes
represent the greatest degree of emission reduction for these HAPs. EPA's
failure to consider vehicle standards also documents EPA's failure to analyze
whether the standards utilize the greatest degree of reductions possible.
(See related comments under Issue 5.)
Letters:
EarthJustice Legal Defense Fund (IV-D-32) p. 4-5
Response to issue 2.1(B)(6): With regard to evaluating a 0.6% or 1% benzene cap,
Section 202(l)(2) does not require us to evaluate all possible control measures. Instead, we
are required to establish additional control measures that "reflect the greatest degree of
emission reduction achievable through the application of technology which will be available,
taking into consideration [existing standards] and the costs of the technology, and noise,
energy, and safety factors, and lead time." As we explain in the preamble and Technical
Support document for this rule, the standards that are being finalized take immediate steps to
address toxics emissions from fuels in the near-term. This is a reasonable control on toxics
emissions from fuels because the technology to maintain the current toxics performance of
gasoline produced at each refinery is already available and continued compliance will not be
costly even with implementation of our recently adopted sulfur controls. We do not believe it
is reasonable to establish more stringent controls in this near-term time frame. First, the lead
time is too short to allow for investments and upgrading of refinery equipment in any
significant manner. Second, we have recently adopted, or proposed to adopt, two
regulations that will achieve very significant emissions reductions by setting tight limits on the
sulfur content of fuels used in on-highway vehicles. To comply with these new regulations,
industry is already planning and investing in capital improvements and pursuing the
necessary permitting to upgrade their refineries.
We have serious concerns that further toxics controls in the 2002 time frame could
interfere with refiners' planning and affect their ability to meet our recently promulgated, or
proposed, sulfur standards. Nevertheless, we believe it is desirable to act over a reasonably
short time frame to guarantee toxics controls in the near-term. We plan to address the
sufficiency of these controls and the appropriateness of further controls in a future
rulemaking. We lack a sufficient basis that would support further steps as part of this
rulemaking and allow us to conduct the evaluation of cost and energy considerations
required by §202(1). We need to collect the information outlined in our Technical Analysis
Plan (see Section V), so that we can assess the costs and benefits of potential fuel controls.
This information will allow us to more accurately consider the impact of our recently
promulgated, or proposed, fuel sulfur controls and assess how toxics controls can be
incorporated. As part of the Technical Analysis Plan we will also collect information, which is
currently lacking, on the availability and feasibility of further controls and the risk posed to
public health and welfare by air toxic hot spots. Based on our conclusion that the anti-
backsliding controls are reasonable controls for the short-term, the fact that we lack
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Response to Comments
December 20, 2000
Page 11
information suggesting further controls are appropriate in the short-term, and the fact that we
are not ready to address long-term controls in this rulemaking, we conclude that today's anti-
backsliding requirement satisfies the criteria of section 202(l)(2).
Commenters are correct that this rule does not establish standards for metals.
Metals in mobile source exhaust can come from fuel, fuel additives, engine oil additives, or
engine wear. We do not have good data about the precise sources of metals, and thus we
cannot yet target controls to reduce these emissions. Also, to the extent that metals are
present due to impurities in engine oil or from engine wear, EPA does not have clear
statutory authority to limit the metal content in oil.
With regard to dioxin/furans, we searched available literature on the relationship
between diesel fuel and this set of air toxics. Unfortunately, there is only limited data in the
literature. Also, no standard test method is used in existing studies, and the methods that are
employed have poor accuracy. When future research clarifies this relationship, we will be
able to target emission controls and evaluate their effectiveness at reducing these emissions
and their costs.
Finally, this rulemaking does consider additional vehicle standards. Section IV of the
preamble and Chapters of the Technical Support Document explain our conclusion that
additional vehichle-based controls are not warranted at this time. See also the answers to
Issue 6, below.
(C) Given the statutory requirements related to the section 202(l)(1) studies, EPA's
proposed standards are arbitrary and capricious.
(1) First, the proposal does nothing to address the significant risks found in the
studies. Thus, EPA cannot meet the statutory requirement that the rule be
"based on" the studies. Even if one assumes EPA could meet that
requirement, the commenter argues further that the studies themselves are
inadequate, which makes the rulemaking based on the studies arbitrary and
capricious. The commenter identifies a number of problems with the studies
and argues that EPA has not undertaken evaluations of health and
environmental impact as it has done in supporting other CAA regulations.
Letters:
EarthJustice Legal Defense Fund (IV-D-32) p. 1-2
Response to issue 2.1(C)(1): EPA's 1993 study, Motor Vehicle-Related Air Toxics Study
(Report No. EPA 420-R-93-005, which can be accessed at
http://www.epa.gov/otaq/toxics.htm), was prepared pursuant to Section 202(l)(1) of the Act.
Thus study provided estimates of motor vehicle emissions of several pollutants believed to
pose the greatest risk to public health, including benzene, formaldehyde, and 1,3-butadiene,
as required by the Act, as well as acetaldehyde, diesel particulate matter, gasoline particulate
matter, and gasoline vapors. Exposure and risk were evaluated for four different years:
1990, 1995, 2000, and 2010. It should be noted that this study did not address whether to
promulgate air toxics standards or suggest what those standards should be. That discussion
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Response to Comments
December 20, 2000
Page 12
was deferred to a future rulemaking under Section 202(l)(2). Instead, the study summarized
that was known about motor vehicle-related air toxics.
As described in the Technical Support Document for this rulemaking, we sought peer
review of this study in 1994. The comments from the peer review included suggestions for
improving EPA's exposure modeling and risk assessment methodology. In response to
these comments, EPA updated its exposure model for motor vehicle-related air toxics. Also,
since 1993, significant new information on vehicle emission rates has been developed as
part of the Auto/Oil program, the development of the Complex Model for reformulated
gasoline, CARB test programs, and other sources, and much more is known about the
impact of fuel properties on toxic emissions. Furthermore, EPA has developed new
programs, such as the NLEV and Tier 2 standards, which have significant effects on
projections of toxic emissions and exposure. Finally, EPA has released an updated cancer
risk assessment for benzene, a draft reassessment for 1,3-butadiene, and a draft
assessment for diesel exhaust emissions. In light of this new information, and in response to
peer review comments, EPA has updated the estimates of emissions and exposure
contained in the 1993 study. The revised study, Analysis of the Impacts of Control Programs
on Motor Vehicles Toxics Emissions and Exposure in Urban Areas and Nationwide (Health
Assessment Document for Diesel (EPA 420-R-99-023/030), revises only inventory and
exposure estimates based on the new data; an updated risk analysis will be part of a
separate updated study that will be completed in connection with our Technical Analysis
Plan. We expect the revised risk estimates to be significantly different from the 1993 study
results because they will take into account the various emission control programs that have
been established since 1990.
Section 202(l)(2) instructs EPA, based on the study required under Section 202(l)(1),
to set standards for emissions of hazardous air pollutants from motor vehicles and their fuels.
However, Section 202(l)(2) also clearly sets out the criteria that those standards must meet:
they are to "reflect the greatest degree of emission reduction achievable through the
application of technology which will be available, taking into consideration [existing
standards] and the costs of the technology, and noise, energy, and safety factors, and lead
time." As discussed in the preamble and Technical Support Document for this rule and
elsewhere in this Response to Comments document, we believe the standards being
finalized meet these criteria. At the same time, we considered the findings of the studies
within the context of our statutory requirements. The results of the Section 202(l)(1) studies
will also be considered in and will help inform our Technical Analysis Plan, particularly as we
evaluate the availability and costs of the technology, noise, energy, and safety factors, and
lead time of different strategies that can be applied to reduce mobile source air toxics over
and above the reductions expected by our existing and recently proposed mobile source
emission control programs.
(D) The section 202(1) studies that EPA uses as the basis for its proposal fail to
meet the statutory requirements. (See related comments under Issue 2.2(D).)
(1) The studies fail to follow established EPA risk assessment protocol. EPA
should have estimated the total risk presented by the air toxics associated
with motor vehicles (based on ambient levels) and then determined, using an
adequate margin of safety, what additional controls on motor vehicles and
fuels are necessary to address those pollutants. The Motor Vehicle Related
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Response to Comments
December 20, 2000
Page 13
Air Toxics Study (April 1993) and the Estimation of Motor Vehicle Toxic
Emissions and Exposure in Selected Urban Areas (1999) were based on a
source-specific assessment, rather than on assessment of ambient levels of
hazardous pollutants, as is normally the case with such EPA risk assessment
documents as required under CAA section 202(1). EPA has failed to offer a
reasoned explanation for this departure from this holistic and scientifically
sound approach as required of it by administrative law principles which
provide that an agency may not shift its position without supplying a reasoned
explanation for the shift.
Letters:
Environmental Systems Products (IV-D-25) p. 8-9
Response to issue 2.1(D)(1): Our study followed the requirements in 202(l)(1), is consistent
with our agency guidance, and has received extensive peer review. We would also like to
point out that, unlike other provisions that the commenter may be thinking of, 202(l)(2) does
not direct EPA to set health-based standards that provide an "adequate margin of safety."
Instead, 202(l)(2) is a technology-based standard that directs EPA to set the standard
according to what is technologically achievable considering the criteria in 202(l)(2).
The Agency's 1996 proposed risk characterization guidelines
(http://www.epa.gov/QRD/WebPubs/carcinogen/) call for risk characterization to be done
based on an exposure assessment. Thus it would be inconsistent with the Agency's own
guidelines to estimate risks based on ambient concentrations. It may be that commenter has
confused a NAAQS-type analysis with the type of analysis we usually perform for HAP
sources. In any event, the suggestion that there has been a "shift" is mistaken.
The Agency agrees that to the extent possible, we should look at risks in the
aggregate. The National Air Toxics Assessment currently being conducted will look at
aggregate inhalation risks from outdoor sources of air toxics. We will evaluate information on
aggregate risks as part of our 2004 rulemaking.
(2) EPA's regulatory studies are inadequate because they are inconsistent with
the broad mandate of Congress to study the need for controlling MSATs
which required a study of "controlling emissions of toxic air pollutants ...
associated with motor vehicles and motor vehicle fuels." The focus of this
language is on the pollutants associated with motor vehicles, and not on the
type of vehicle. The entire inventory of these pollutants, including those from
non-road vehicles, should have been taken into account. In contrast, EPA
adopted a source-specific approach, examining the cancer risk associated
with the toxic emissions contribution of on-road motor vehicles, rather than
undertaking a comprehensive assessment of the risks of the air toxics
associated with motor vehicles, including non-road sources.
Letters:
Environmental Systems Products (IV-D-25) p. 6-7
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Response to Comments
December 20, 2000
Page 14
Response to issue 2.1(D)(2): Section 202(1) directs the Agency to address emissions from
motor vehicles and motor vehicle fuels. The term motor vehicle is used in the Clean Air Act
to mean on-road motor vehicles, and thus the rule is focused on on-road vehicles, both light
and heavy duty. The Agency included a chapter to discuss the importance to nonroad
sources of emissions. See response describing legal authority under section 202(1),
response to issue 2.1(B)(1).
2.2: Adequacy of Rule to Address Public Health & Welfare Concerns
(A) Because mobile sources are the leading emissions source of HAPs in the
country, EPA must adopt more comprehensive rules than EPA has proposed.
(1) One commenter stated that EPA's listing of the top twenty sources of toxic air
emissions in the 1993 OAQPS Air Pollutant Emission Trends Report
identified on-road vehicles as the largest source, and non-road vehicles as
the fifth largest source of HAPs. Commenters also noted that the 1998
Cumulative Exposure Project (CEP) identified mobile sources as responsible
for the majority of HAP emissions, and that NESCAUM determined that
mobile sources dominate the primary emissions (40-92% of the entire
inventory for these pollutants) in all Northeastern States. Other commenters
noted that the 1996 National Toxics Inventory shows that motor vehicles and
non-road sources are responsible for 40% of all HAPs. Some of these
commenters further noted that mobile sources represented 76% and 49% of
all emissions of benzene and formaldehyde, respectively. Finally, some
commenters stated that NATA modeling showed that even small communities
significantly exceed the health benchmarks for ambient benzene
concentrations.
Letters:
Clean Air Network, et al (IV-D-38) p. 1
Commonwealth of MA DEP (IV-D-13) p. 1
Consumer Policy Institute (IV-D-8) p. 4
Environmental Systems Products (IV-D-25) p. 2-3
IL EPA (IV-D-28) p. 1
NESCAUM (IV-D-10) p. 1-2
NESCAUM (IV-F-1)p. 22-23
STAPPA, ALAPCO (IV-D-22) p. 1-2
STAPPA, ALAPCO (IV-F-1) p. 43
(2) Not surprisingly given the automobile's prevalence, motor vehicle emissions
account for up to half of all cancers attributed to outdoor sources of air toxics.
Letters:
Environmental Systems Products (IV-D-25) p. 3
Response to issues 2.2(A)(1) and (2): The Agency agrees that mobile sources are major
contributors to exposure and risk from outdoor sources of air toxics. Programs currently in
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Response to Comments
December 20, 2000
Page 15
place will reduce inhalation exposure to gaseous air toxics from highway mobile sources by
about 50% in 2007 and 60% in 2020, relative to 1996 levels. EPA's 2007 standards will
reduce exposure to diesel particulate matter by over 90% by 2020. Substantial reductions in
air toxic emissions from nonroad equipment are projected as well (as described in the
preamble and Chapters of the Technical Support Document). Furthermore, this rulemaking
has taken steps to ensure that reductions which have resulted from reformulation of gasoline
are maintained.
The Agency acknowledges, however, that many data gaps exist which prevent it from
fully characterizing risks. These data gaps, which include a lack of nonroad emissions data
and an inability to adequately assess the potentially disproportionate impacts of air toxics in
"hotspot" areas, are more fully described in the technical analysis plan in the preamble. As
we address these data gaps we will evaluate what additional controls may be needed to
adequately protect public health.
Finally, we would like to point out that there are no risk levels, or "benchmarks," which
represent regulatory thresholds. However, the 1989 Benzene National Emission Standard
for Hazardous Air Pollutants (NESHAP)1 sets an upper limit of acceptability of 1 in 10,000
lifetime cancer risk for the most exposed individual, with other health and risk factors
considered below this level to complete an overall judgement on acceptability.
(B) Because ambient concentrations of cancer-causing compounds exceed health
protective thresholds in every area of the country, EPA must adopt more
comprehensive rules than EPA has proposed.
(1) The 1998 CEP predicted that seven cancer-causing compounds exceeded
health-protective thresholds in every census tract in the country in 1990. In
the Northeast ambient concentrations of acetaldehyde, benzene, 1,3-
butadiene and formaldehyde exceed risk-screening thresholds for cancer
and, in some cases, non-cancer effects throughout the region.
Letters:
Consumer Policy Institute (IV-D-8) p. 4
Environmental Systems Products (IV-D-25) p. 2
NESCAUM (IV-D-10)p. 2
NESCAUM (IV-F-1)p. 22-23
(2) In addition to causing cancer, human exposure to these air toxics at sufficient
concentrations and durations can result in poisoning, the rapid onset of
sickness such as nausea, as well as immunological, neurological,
reproductive, developmental and respiratory problems. Hazardous air
pollutants deposited onto soil or into lakes and streams adversely affect
ecological systems and eventually harm human health through consumption
of contaminated food.
1Federal Register 54 (177): 38044 - 38072, September 14, 1989.
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Response to Comments
December 20, 2000
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Letters:
Environmental Systems Products (IV-D-25) p. 2-3
Response to issues 2.2(B)(1) and (2): We agree that at certain exposure concentrations
some HAPs may cause a variety of cancer and non-cancer health effects. We also agree
with the commenterthat, to the extent possible, future risk analyses should consider more
than just the cancer risk associated with inhalation exposure. Chapter 3 of our TSD describes
the potential health effects associated with each MSAT and the various exposure routes of
concern.
Average nationwide exposures to benzene and formaldehyde exceed concentrations
which would result in a one in a million upper bound lifetime risk, and in many areas of the
country, exposure concentrations exceed one in a hundred thousand upper bound lifetime
risk levels. A one in a million lifetime cancer risk level represents an annual risk of about 1.4
in 100 million, or about 3.5 cancer incidences in the entire U.S. population.
The EPA unit risk estimate for 1,3-butadiene is expected to be revised downward
substantially as a result of a reassessment which is nearing completion. As a result, it is
unlikely that average nationwide exposures will still exceed a one in a million upper bound
lifetime risk.
Draft concentration results from the National Air Toxics Assessment (NATA) suggest
that exposures to acrolein in many areas of the country may exceed the reference
concentration, or RfC. In a few areas of the country, exposures to formaldehyde and
acetaldehyde may also exceed the RfC. The RfC is an estimate (with uncertainty spanning
perhaps an order of magnitude) of a continuous inhalation exposure to the human population
(including sensitive subgroups) that is likely to be without an appreciable risk of deleterious
effects during a lifetime. It can be derived from various types of human or animal data, with
uncertainty factors generally applied to reflect limitations of the data used. Exposures above
the RfC are not necessarily harmful, but indicate a potential for adverse health effects.
Although there are no risk levels which represent regulatory thresholds, the 1989
Benzene National Emission Standard for Hazardous Air Pollutants (NESHAP)2 sets an upper
limit of acceptability of 1 in 10,000 lifetime cancer risk for the most exposed individual, with
other health and risk factors considered below this level to complete an overall judgement on
acceptability. Available exposure assessment tools estimate population exposures rather
than the exposures experienced by the most exposed individuals. They lack the level of
refinement which would enable us to adequately assess the highest exposures found in
mobile source "hotspots." The Technical Analysis Plan described in the preamble of the rule
discusses our plan for better characterizing "hotspot" exposures.
(C) While potentially supporting an anti-backsliding provision, the proposal is
inadequate as the sole regulation on air toxics to be proposed at this time.
2Federal Register 54 (177): 38044 - 38072, September 14, 1989.
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Response to Comments
December 20, 2000
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(1) Commenters argue that EPA cannot just rely on other criteria pollutant rules,
especially because the turnover is too long. One of the commenters noted
that even under the best of circumstances, the proposed program will not
afford additional controls on any emissions of mobile source air toxics for at
least six or seven years, an unacceptably long time. Another commenter
argued that EPA cannot rely on vehicle fleet turnover to achieve emission
reductions of MSATs because fleet turnover is gradual and because the new
technology needed to meet the new standards is unproven and prone to
malfunction. This commenter also pointed out that the NAAQS control
measures relied upon by EPA for a continuing reduction in mobile source
toxic emissions are not all nationwide programs (while air toxics are a
nationwide problem). Also, these programs are not all permanent and EPA
has failed to address the potential for future relaxation of standards designed
for attainment purposes that may not be needed in the future. Commenter
urges EPA to adopt a strong nationwide I/M program as the most cost-
effective means of reducing air pollutant emissions.
Letters:
Clean Air Network, et al (IV-D-38) p. 1-3
Environmental Systems Products (IV-D-25) p. 13-16
Environmental Systems Products (IV-F-1) p. 53-57
Puget Sound Clean Air Agency (IV-D-27) p. 1
STAPPA, ALAPCO (IV-D-22) p. 2
STAPPA, ALAPCO (IV-F-1) p. 44-45
Response to issue 2.2(C)(1): EPA acknowledges that standards placed upon new motor
vehicles do not result in immediate emission reductions because of the practical and
statutory need to provide industry with reasonable lead time to implement the controls and
the unavoidable fact that motor vehicle fleet turnover is gradual. Unfortunately, this is an
inherent limitation of all standards for new vehicles, whether they are designed to address
criteria pollutants or air toxics.
EPA's current and proposed vehicle standards will address gaseous and particulate
toxics just as well as non-toxic VOCs and PM. More stringent controls, either in terms of
shorter lead time or tighter standards, are not achievable.
For fuel controls, lead time is also an issue. Ouranti-backsliding program can be
implemented with almost no lead time. As described in Section IV of the preamble and
Chapters of the Technical Support Document for this rule, we have determined that
additional near term controls are not reasonable. We will continue to analyze log-term
controls to determine what is controls are appropriate.
The Agency agrees with the comment that not all NAAQS-based programs are
national in scope (e.g., RFG) nor are all criteria pollutant measures permanent (e.g., some
local controls). The rule is designed to avoid future increases in air toxics across the nation.
See response to issue 5(C) for a discussion of I/M programs.
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Response to Comments
December 20, 2000
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(2) The proposed benzene emissions standards are not sufficient to protect
public health, and should be set at a lower level. Instead of merely codifying
existing benzene levels, EPA should establish a nationwide fuel benzene cap
that is more stringent than the 1.0 percent cap under the Phase I RFG
program. Commenters added that the cap also should be no higher than the
lowest benzene level currently being achieved in the U.S. today. This cap
should be as low as feasible and should apply nationally. Another
commenter argued that, given the known health and environmental impacts of
benzene, EPA should ratchet down emissions below levels currently achieved
by refiners. Another commenter stated that, at the very least, EPA should
extend the RFG program's benzene cap to all gasoline. This commenter
added that by locking in benzene at baseline levels, EPA is establishing
regional standards, rather than a protective nationwide standard, which will
force those living in areas with a higher than average benzene content to
continue to bear this health burden. EPA needs to take more aggressive
action in terms of standards and timing to address public health concerns.
Letters:
Commonwealth of MA DEP (IV-D-13) p. 2
Consumer Policy Institute (IV-D-8) p. 4
NESCAUM (IV-D-10)p. 6
NESCAUM (IV-F-1)p. 23-24
Oregon Environmental Council (IV-D-9) p. 1
STAPPA, ALAPCO (IV-D-22) p. 3
Response to issue 2.2(C)(2): Unlike other provisions of the Act, section 202(l)(2) does not
direct EPA to set standards to eliminate or achieve a certain level of risk. Section 202(l)(2)
directs to address pollutants that pose a health concern and impose standards that are the
most stringent feasible within the "technology-based" criteria described in the provision. As
discussed previously, programs currently in place will result in substantial reductions in
benzene and other hazardous air pollutants. In 2004, we will determine whether additional
fuel controls, or emission standards for highway vehicles and nonroad engines, are
appropriate under the Act. EPA regulations are not designed to eliminate risk, nor to achieve
a certain level of risk. They are intended to address pollutants that pose a health concern
and impose standards that are the most stringent feasible within criteria described in the
relevant statutory provision. As discussed previously, programs currently in place will result
in substantial reductions in benzene and other hazardous air pollutants. In 2004, we will
determine whether additional fuel controls, or emission standards for highway vehicles and
nonroad engines, are needed to protect public health.
(3) EPA should impose a nationwide limit that reflects the in-use benzene levels
in RFG areas and apply the RFG area benzene limits to non-RFG areas.
This could reduce by half the present benzene levels in non-RFG areas and
maintain existing benefits in RFG areas. A single nationwide limit would also
be enforceable throughout the gasoline distribution system with minimum
recordkeeping and other administrative requirements. Another commenter
stated that EPA should acknowledge that the current proposed rule is but the
first step on benzene and should include a provision to revisit the issue by the
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Response to Comments
December 20, 2000
Page 19
end of 2001 and explore the need fora nationwide benzene cap. Otherwise,
non-RFG areas will continue to experience elevated benzene levels. One
commenter in hearing testimony generally argued for nationwide standards to
address non-RFG areas.
Letters:
California Air Resources Board (IV-D-1) p. 2
Clean Air Network, et al (IV-D-38) p. 3-4
Michigan Environmental Council (IV-F-1) p. 67-71
Response to issue 2.2(C)(3): Section 202(l)(2) requires EPA to adopt regulations that
contain standards which reflect the greatest degree of emissions reductions achievable
through the application of technology that will be available, taking into consideration existing
motor vehicle standards, the availability and costs of the technology, and noise, energy and
safety factors. Today's rule adopts an anti-backsliding requirement that EPA believes is
appropriate under section 202(l)(2) as a near-term control. We are not adopting long-term
controls such as uniform national gasoline air toxics limits because we lack the information
necessary to assess appropriate long-term controls.
Today's rule addresses toxics emissions from fuels in the near-term. The rule will
cap the toxics performance levels of gasoline beginning in 2002. Adopting an anti-
backsliding program is a reasonable control on toxics emissions from fuels. The technology
to maintain the current toxics performance of gasoline produced at each refinery is already
available and continued compliance will not be costly even with implementation of our
recently adopted sulfur controls (see discussion in section V, and in chapter? of the technical
support document).
We do not believe, however, that we could reasonably adopt further controls in this
near-term time frame. First, the lead time is too short to allow for investments and upgrading
of refinery equipment in any significant manner. For example, not all refiners produce
benzene at the national average level and also because they do not currently use the same
production techniques and so therefore cannot use the same or similar strategies to achieve
the national average level of benzene fuel content. Second, we have recently adopted, or
proposed to adopt, two regulations that will achieve very significant emissions reductions by
setting tight limits on the sulfur content of fuels used in on-highway vehicles. To comply with
these new regulations, industry is already planning and investing in capital improvements and
pursuing the necessary permitting to upgrade their refineries. While we lack the information
to fully assess the costs and benefits of further controls in the 2002 time frame, we have
serious concerns that further toxics controls in the 2002 time frame could interfere with
refiners' planning and affect their ability to meet our recently promulgated, or proposed, sulfur
standards.
Even though today's rule focuses on near-term options for controlling toxic emissions
from fuels, we plan to address the appropriateness of long-term controls in our future
rulemaking. We are not ready, however, to address these long-term controls in this
rulemaking. We need to collect the information outlined in our Technical Analysis Plan (see
Section V), so that we can assess the costs and benefits of potential fuel controls. This
information will allow us to more accurately consider the impact of our recently promulgated,
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Response to Comments
December 20, 2000
Page 20
or proposed, fuel sulfur controls and assess how toxics controls can be incorporated. As part
of the Technical Analysis Plan we will also collect information, which is currently lacking, on
the availability and feasibility of further controls and the risk posed to public health and
welfare by air toxic hot spots.
(4) Even if the controls EPA is relying upon to address mobile source air toxics
do result in a seventy-five percent reduction in certain pollutants, as EPA
claims, that may still not be enough. One of these commenters added that
the measure of successful regulation of hazardous air pollutants, according to
EPA practice in other rules and as interpreted by the court in the 1994
decision related to the benzene NESHAP, is the reduction in the risk to public
health to as close to one in one million as possible. In hearing testimony, one
commenter also stated that the 1 in 100,000 or 1 in 1,000,000 thresholds
were appropriate indicators of unacceptable risk.
Letters:
Commonwealth of MA DEP (IV-D-13) p. 1
NESCAUM (IV-F-1)p. 31
STAPPA, ALAPCO (IV-D-22) p. 2
STAPPA, ALAPCO (IV-F-1) p. 45-46
Response to issue 2.2(C)(4): The Agency agrees with the commenter that the expected
significant reductions in mobile source air toxic emissions from 1990/ 96 to 2020 may not be
sufficient to fully protect public health and welfare. One of the missing pieces of information
is hot spot exposures which the Agency has committed to explore in the future. The risk
targets for other program that are identified by commenters, while desirable goals in general,
are not necessarily relevant here where the statute requires a technology-based approach
even for emissions of toxics. EPA must evaluate the appropriateness of its controls
according to the criteria in section 202(l)(2).
(D) EPA's methodologies to evaluate health risk are not protective and distort the risk in
most urban areas.
(1) One of the commenters argued that the CAA requires EPA to establish
standards with an adequate margin of safety for special populations such as
children and those with compromised health. In addition, commenters stated
that the study methodology contained a number of problems; commenters
raised some or all of the following: EPA failed to evaluate health risks in
urban areas; EPA failed to evaluate cumulative exposure to respiratory
irritants; EPA has not considered "hotspots" of exposure; middle income
Caucasians do not represent those most exposed; in the absence of data
about particular microenvironments, EPA should assume ambient prevalent
concentrations for 24 hour/7 day a week exposure; EPA has not established
that carbon monoxide exposure is a good indicator for estimating toxics
exposures; EPA should be very concerned about the 30% underestimate of
ambient concentrations at the highest percentile of population exposure; and
the NATA assessment should assess more pathways than inhalation risks.
As further documentation of these concerns, one of the commenters attached
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December 20, 2000
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(and provided a brief summary of) the 1999 NESCAUM Peer Review of the
U.S. EPA's DRAFT Estimation of Motor Vehicle Toxic Emissions and
Exposure in Selected Urban Areas (October 1999). The commenter also
attaches a chart to show how the approach taken in the section 202(1) studies
differs from other EPA regulatory actions. Another commenter also cites to
NESCAUM's critique, and also notes that the studies relied on by EPA do not
properly account for either cumulative risk or emissions from non-road motor
vehicles. The commenter argues that these types of deficiencies cause EPA
to underestimate the dangers to the public posed by MSATs.
Letters:
Consumer Policy Institute (IV-D-8) p. 5
NESCAUM (IV-D-10)p. 9
Response to issue 2.2(D)(1): The Agency does not dispute the fact that the area of risk
assessment for air toxics is an evolving area of research. The commenter's litany of
shortcomings in the Agency's assessment capabilities identifies some areas where the
Agency has been working to make improvements, as well as some areas that need
additional improvement. In this case, the Agency's action is based on the best information
available at this time. For the record, there has been significant progress over the last
decade in our understanding of adverse health effects related to air toxics. For example, the
1999 mobile source air toxics study contained superior modeling of urban air toxic emissions
and exposure concentrations due to extensive modeling of fuel properties within 10
metropolitan area across the nation. One limitation of the 1999 study was its reliance on
carbon monoxide personal exposures as a surrogate for air toxic exposures. Although CO is
a reasonable surrogate for exposure to toxics emissions, it is less reliable for more
photochemically reactive compounds than those that are relatively inert. The next generation
exposure model no longer relies on a CO-surrogate methodology. Instead of using direct CO
measurements as surrogates to model toxics exposures, it uses modeled toxics
concentrations as input. Although using modeled data instead of direct measurements as
input has its own inherent limitations, we believe this change represents an improvement for
most applications. The database of human activity diaries has been substantially improved
with thousands of additional entries, although results of sensitivity analyses indicate that had
the more extensive activity database been available when the exposure modeling was done,
it would have had a minimal impact on the results. In other areas, such as hot spots or
cumulative exposures, the Agency will continue to commit resources to further research.
(2) Commenters provided detailed criticism of the use of the Hazardous Air
Pollutant Exposure Model to support this rulemaking. Commenters
challenged a number of specific elements of these models, including that the
models: rely on limited time-activity diary data; do not account for the
evaporative loss of benzene; assume toxic concentrations are proportional to
the carbon monoxide concentration; assume an average ambient
concentration for carbon monoxide over a 50 km study area; do not justify
microenvironmental factors; do not provide ranges for average exposure
estimates; do not estimate exposure for the upper 10% of the population; do
not adequately represent the variance in the population exposures; have no
input parameters available for public review; and are too complicated for
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Response to Comments
December 20, 2000
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interested parties to evaluate the model predictions more thoroughly. In
hearing testimony, one commenter stated that non-road emissions will be an
increasing problem and the lack of consideration of non-road sources was a
significant problem in this study.
Letters:
Environmental Systems Products (IV-D-25) p. 9-11
NESCAUM (IV-D-10)p. 12-13
NESCAUM (IV-F-1)p. 24, 27-30
Response to issue 2.2(D)(2): We agree that, to the extent possible, cumulative risks across
source categories and pollutants should be addressed in a risk characterization, including
multiple pathways of exposure. The Technical Support Document for this rule includes a
review of available ambient concentration and exposure data. It also identifies significant
limitations associated with available tools and methods. Despite limitations in these tools
and methods, they are useful in helping the Agency develop priorities for research and
regulatory evaluations.
We would like to note that EPA has assessed population exposures in urban areas,
although the tools currently available lack the refinement to estimate individual exposures in
urban "hotspots." Furthermore, the model is designed to estimate average population
exposures, and the Agency believes it is less accurate at the low and high end of the
exposure distribution. Although one commenter recommended using ambient concentrations
rather than exposure estimates to characterize risk, such an approach would be inconsistent
with the Agency's own risk assessment guidelines (available at www.epa.gov/ncea ).
Ambient concentrations do not take into account differences in concentration levels within
different microenvironments, or time people spend in these microenvironments.
The Technical Support Document for this rule presents on-highway mobile source
exposure estimates developed using the Hazardous Air Pollutant Exposure Model for Mobile
Sources, version 3 (HAPEM-MS3). All input parameters used in the model are publicly
available. This model uses CO as a tracer for toxics. Since most ambient CO comes from
cars and light trucks, we believe CO exposure is a reasonable surrogate for exposure to
toxics emissions. Since carbon monoxide is relatively inert, and some modeled compounds
are photochemically reactive, we adjusted results to account for differences in photochemical
reactivity.
The model simulates the movement of individuals between home and work and
through a number of different micro-environments. Activity data used in the model were
obtained from a three-city database which included about 3600 person days of data from 23
demographic groups, including African Americans and Hispanic Americans, not just
Caucasians as stated by one commenter. However, data for non-English speaking
demographic groups are limited.
The CO concentration in each micro-environment is determined by multiplying the
ambient concentration by a micro-environmental factor. Ambient concentrations are obtained
from monitor data, with urban areas divided into 20km districts around each monitor, not
50km as one commenter stated. The microenvironmental factors were derived using paired
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December 20, 2000
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ambient and personal exposure monitor measurements from CO studies in Denver and
Washington. Modeled CO exposure attributable to on-highway vehicle emissions for 1990
was divided by 1990 CO grams per mile emission estimates to create a conversion factor.
The conversion factor was applied to modeled toxic emission estimates (in grams per mile) to
determine exposure to on-highway vehicle toxic emissions. The modeling approach
accounts for evaporative benzene emissions, but does not account for differences in spatial
and temporal distributions of benzene evaporative emissions relative to benzene exhaust
emissions. The modeling also does not account for exposures to benzene emissions
originating in attached residential garages. These exposures may be significant, as
discussed in the Technical Support Document. Comparison of HAPEM-MS3 based
estimates of exposure to other available data sources suggest that the HAPEM-MS3
approach provides reasonable estimates of inhalation exposure.
The NATA National Scale Analysis will address cancer and noncancer inhalation risk
from all outdoor sources, assuming lifetime population exposure to 1996 levels. It also
addresses some of the limitations identified in the HAPEM-MS3 exposure methodology. For
instance, it estimates exposure based on modeled toxics concentrations, rather than relying
on the CO tracer approach described above. This assessment will include more extensive
time activity data than in previous exposure assessments done by the Office of
Transportation and Air Quality. Moreover, it will address non-cancer health endpoints across
pollutants for specific target organs and organ systems. This includes respiratory effects.
It should be noted that the model cannot estimate individual exposures. The data are
also still limited for non-English speaking demographic groups. Moreover, the National Scale
Analysis will not include risks from indoor sources or non-inhalation pathways. The Agency
does not currently have the tools to conduct a comprehensive multimedia assessment that
includes indoor and outdoor sources. In addition, the National Scale Analysis will not
account for substantial reductions in risk as a result of current and future mobile source
control programs.
The purpose of this assessment is to help identify pollutants of greatest potential
concern, and to set priorities for collection of additional air toxics data to improve future
assessments. It is not designed to characterize risks sufficiently for regulatory action.
(3) In addition to the problems identified in the methodology, commenters also
argued that the risk characterization and management methodology
conducted under the proposed regulation is not consistent with Agency
practice.
Letters:
Environmental Systems Products (IV-D-25) p. 1-2
NESCAUM (IV-D-10) p. 9-10, att.
Response to issue 2.2(D)(3): The commenter would like the Agency to use the regulatory
approach typically used when promulgating rules based on attainment and maintenance of
an established NAAQS. In NAAQS-based rulemakings, the Agency develops national and
regional emissions inventories and forecasts future ambient concentrations of air pollution of
concern across the nation. For the populations that live i areas with projected concentrations
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Response to Comments
December 20, 2000
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above the relevant NAAQS, there is a reasonable risk of adverse health effects. This forms
that basis of a NAAQS-based rulemaking.
The commenter would like the Agency to use the 10-6 risk level as a de facto
NAAQS. However, in the case of air toxics there are no agreed-upon health based standards
for ambient concentrations. An exposure model called HAPEM is used to translate ambient
concentrations into risk levels. This additional step is made necessary by the lack of a
standard for determining that ambient concentrations place the population exposed to them
at risk.
Section 202(l)(2), however, does not establish this kind of health- or risk-based
scheme. Instead we are directed to address those emissions causing or contributing to air
pollution problems by adopting controls meeting the technology-based "achievability" criteria
in section 202(l)(2).
(E) EPA fails to clearly describe what it believes the framework to construct a
national MSAT program is or should be.
(1) Instead the NPRM describes what existing programs, not designed for toxics,
are expected to do. EPA also fails to describe what it will do between now
and 2004 to develop the 2004 proposal. Clearer descriptions are necessary
for adequate comment on the NPRM.
Letters:
Consumer Policy Institute (IV-D-8) p. 2
Response to issue 2.2(E)(1): As stated previously, the Agency acknowledges the fact that
the science of risk assessment for air toxics is evolving. The contribution from this
rulemaking is to identify and describe existing data gaps for future research. The
development of a framework for a national MSAT program will grow out of the workshops
and research agenda articulated in the rule. Interested readers should refer to our
description of the Technical Analysis Plan in the preamble for this rule, which contains
additional details.
2.3: Environmental Justice Concerns
(A) Commenter supports EPA's plans to address "hotspots" in low income and
minority communities.
(1) Commenter provides no further supporting information or detailed analysis.
Letters:
Oregon Environmental Council (IV-D-9) p. 1
Response to issue 2.3(A)(1): Several commenters expressed general support for our plan
to address "hot spots" in low income and minority communities. As noted in the preamble for
this rulemaking, the NATA National Scale Analysis reports distributions of concentrations
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Response to Comments
December 20, 2000
Page 25
across census tracts nationally and at the county level. While providing a significant and
informative body of information, these studies do not address exposures to toxics in hot spot
areas. As the Agency has stated in the Integrated Urban Air Toxics Strategy, we also want to
consider the disproportionate impacts of air toxics in hot spot areas. Hot spots are generally
thought of as areas with elevated pollutant levels that could be associated with elevated
exposures and potentially serious health risks. At higher pollutant concentrations, the
potential for risk increases, making it important to characterize the distribution of exposure in
the population. States and local air pollution control agencies have raised the hot spots issue
as a major concern that needs to be addressed in a comprehensive air toxics risk
characterization.
To improve our ability to characterize MSAT exposures to highly exposed
subpopulations requires better information regarding ambient concentrations of MSATs in hot
spot areas and appropriate microenvironmental factor values for high-exposure
microenvironments. As part described in our discussion of the Technical Analysis Plan in the
preamble for this rule, EPA is developing local-scale emissions and dispersion models for
mobile sources to better inform the Agency and the public about potential hot spots. In
addition, EPA is conducting spatially refined urban area modeling (including mobile sources).
(B) The proposal fails to adequately address the issue of environmental justice.
(1) The proposal cannot meet the requirements of the President's Executive
Order on Environmental Justice. EPA must construct a national MSAT
program that protects those most exposed to unacceptably high
concentrations of mobile source emissions.
Letters:
Consumer Policy Institute (IV-D-8) p. 5
(2) Commenter provides no further supporting information or detailed analysis.
Letters:
EarthJustice Legal Defense Fund (IV-D-32) p. 2
Response to issues 2.3(B)(1) and (2): Executive Order 12898, Federal Actions to Address
Environmental Justice in Minority Populations and Low-Income Populations, is intended to
focus federal attention on the environmental and human health conditions of minority and
low-income populations with the goal of achieving environmental protection for all
communities. The Order directs federal agencies to develop environmental justice strategies
to aid federal identify and address disproportionately high and adverse human health or
environmental effects of their programs, policies, and activities on minority and low-income
populations. The Order is also intended to promote nondiscrimination in federal programs
substantially affecting human health and the environment, and to provide minority and
low-income communities access to public information on, and an opportunity for public
participation in, matters relating to human health or the environment. The Presidential
Memorandum accompanying the Order underscores certain provisions of existing law that
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December 20, 2000
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can help ensure that all communities and persons across this nation live in a safe and
healthful environment.
One of the provisions of the Executive established an Interagency Working Group
(IWG) on environmental justice chaired by the EPA Administrator and comprised of the
heads of eleven departments/agencies and several White House offices. EPA has also
developed a strategy to address environmental justice. The strategy contains five major
areas with include: 1) Public Participation and Accountability, Partnerships, Outreach, and
Communication with Stakeholders; 2) Health and Environmental Research; 3) Data
Collection, Analysis, and Stakeholder Access to Public Information; 4 American Indian and
Indigenous Environmental Protection; and 5) Enforcement, Compliance Assurance, and
Regulatory Reviews.
The program established in this rule conforms with the requirements of the
Environmental Justice executive order. By setting new gasoline toxics performance
standards for a broad set of gaseous toxics that ratchet down existing requirements, we
ensure that emissions performance will not deteriorate below today's levels in all areas as
well as in minority and low-income communities. In addition, as described in the response to
issue 2.3(A)(1) above, the Technical Analysis Plan described in the preamble for this rule
contains a plan to address more carefully urban hotspots and air toxics exposure for sensitive
subpopulations.
2.4: Consistency with Integrated Urban Air Toxics Strategy
(A) The failure to substantively and comprehensively address MSATs in the
proposed rule is contrary to EPA's Integrated Urban Air Toxics Strategy
(IUATS).
(1) The Agency has spoken extensively and for years about the contribution of
mobile sources to air toxics, particularly when trying to justify not placing
additional controls on sources of air toxics, like area sources. The Urban Air
Toxics Strategy is a prime example of this. The Agency is playing a
dangerous shell game by promising to address air toxics including mobile
sources and then failing to put forward a mobile source toxics strategy that
meets that commitment. The danger lies in allowing the public to continue to
be exposed to air pollutants many times health based thresholds for many
years to come. For the Urban Air Toxics Strategy to succeed, EPA must
address mobile source air toxics.
Letters:
Consumer Policy Institute (IV-D-8) p. 2
Puget Sound Clean Air Agency (IV-D-27) p. 1-2
Response to issue 2.4(A)(1): As explained in greater detail in the Technical Support
Document for this rulemaking, the Integrated Urban Air Toxics Strategy (IUATS) has three
primary goals:
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December 20, 2000
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• Attain a 75-percent from reduction from 1990 levels in the incidence of cancer
attributable to exposure to HAPs emitted by stationary sources
• Attain a substantial reduction from 1990 levels in public health risks posed by
emissions from area sources
• Address disproportionate impacts of air toxics hazards across urban areas
The third goal will involve consideration of both stationary and mobile source
emissions of HAPs, as well as sources of HAPs in indoor air. Today's rule fits into the IUATS
in that it provides the mobile source component of the Agency's program to reduce air toxics
emissions from mobile sources. The standards being finalized are intended to maintain
current levels of over-compliance with gasoline toxics performance requirements under the
federal reformulated gasoline and anti-dumping programs, thus ensuring that the toxics
emissions performance of gasoline does not deteriorate. With regard to additional controls,
the Agency is not engaged in a "shell game" to defer action on mobile source air toxics to the
IUATS. Instead, the preamble for this rulemaking includes a description of a Technical
Analysis Plan that we will implement to obtain the information we need to assess the need for
and feasibility of additional control measures that may reduce exposure to mobile source air
toxics even more, both for the general population and for sensitive populations or those living
in "hot spot" areas.
With regard to the continuing exposure to mobile source air toxics, as explained in
the preamble and Technical Support Document for this rulemaking, inventories of on-
highway vehicle air toxics are expected to decline substantially over the next 20 years as a
result of emission control programs that were put in place primarily to reduce ambient
concentrations of criteria pollutants through volatile organic compound (VOC), carbon
monoxide (CO) and particulate matter (PM) controls. By 2020, these programs are expected
to reduce the levels of on-highway emissions of benzene by 73 percent, formaldehyde by 76
percent, 1,3-butadiene by 72 percent, and acetaldehyde by 67 percent from 1990 levels. In
addition, by 2020, we expect to see on-highway diesel PM emission reductions of 94 percent
from 1990 levels. The reductions expected from our existing nonroad control programs are
also expected to be significant, although not as substantial as the reductions for on-highway
vehicles. Consequently, public exposure to mobile source air toxics is expected to decline
substantially over the next 20 years.
(2) One commenter argued that the IUATS deferred risk characterization and
emission reduction goals to the section 202(1) rulemaking. EPA needs to
clarify how the proposal addresses the risk reduction goals of the IUATS
when it addresses only benzene and does not seek any emission reductions.
Moreover, this and another commenter noted that the IUATS commits EPA to
consider cumulative risks presented by exposure to HAPs, but the studies
relied on in the section 202(1) rulemaking use a narrow evaluation of the
average, population-based, risk contribution of on-road sources.
Letters:
Environmental Systems Products (IV-D-25) p. 8
NESCAUM (IV-D-10)p. 9-10
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NESCAUM (IV-F-1)p. 26-28
Response to issue 2.4(A)(2): See response to 2.4.A(1), above. While this rule does not
contain specific emission control programs that reduce exposure and risk from mobile source
air toxics, and instead seeks to maintain over-compliance with the federal reformulated
gasoline and anti-dumping programs, it nevertheless addresses the risk reduction goals of
the IUATS. First, it estimates the reductions in mobile source air toxics inventories that are
associated with current mobile source programs that were put in place primarily to reduce
ambient concentrations of criteria pollutants. This information will be used in our upcoming
risk analysis study, to be completed as part of our Technical Analysis Plan. Second, the rule
identifies the data gaps that must be filled to perform a more comprehensive analysis of
mobile source air toxics control measures. This includes information about the effectiveness
and costs of vehicle, fuel, and nonroad controls as well as about exposure and risk for
sensitive subpopulations, the range of total public exposure to air toxics, and the inventory
impacts of nonroad sources. We will collect information about these issues as part of the
Technical Analysis Plan we will implement as described in Section VII of the preamble for
this rule and will use this information in a future mobile source air toxics rulemaking to be
completed no later than July 1, 2004. These three activities, the risk analysis, Technical
Analysis Plan, and future rulemaking, further our progress toward the goals of the IUATS.
EPA will also be looking at cumulative risk as part of our IUATS and National Air
Toxics Assessment activities as well as through our Technical Analysis Plan.
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ISSUE 3: DESIGNATION OF MSATS
3.1: General Comments on MSAT List
(A) Generally supports the proposed MSAT list.
(1) Commenter notes that the listing process may move EPA to monitor the listed
pollutants more closely in urban and surrounding areas.
Letters:
Clean Air Network, et al (IV-D-38) p. 2
Response to issue 3.1(A)(1): We will continue to focus toxics monitoring on pollutants that
current information suggests may pose the greatest risk based on the quantity of emissions
in urban and surrounding areas. Specific studies designed to assess the potential health
effects associated with exposure in mobile source hotspots will include an assessment of the
MSATs to the degree possible.
(B) Mobile Source Air Toxics (MSAT) should be changed to Mobile Source HAPS
(or MSHAPS) to better convey that these chemicals have the potential to be
toxic (i.e., cause harm) but only at high enough concentrations at long enough
exposures.
(1) Commenter provided no further supporting information or detailed analysis.
Letters:
Koch Petroleum Group (IV-D-36) p. 2
Response to issue 3.1(B)(1): We disagree that the MSATs should be renamed to convey
an understanding of potential to cause harm. The compounds on the MSAT list were not
chosen based on the potential risk associated with exposure to these compounds. Inclusion
of a compound on the MSAT list does not constitute a determination by EPA that emissions
of the compound in fact present a risk to public health or welfare, or that it is appropriate to
adopt controls to limit the emissions of such a compound from motor vehicles or their fuels.
The purpose of the list is to provide a screening tool that identifies those compounds emitted
from motor vehicles or their fuels for which further evaluation of emissions controls is
appropriate. In conducting any such further evaluation, pursuant to sections 202(a) or 211 (c)
of the Act, EPA would consider whether emissions of the compound cause or contribute to air
pollution which may reasonably be anticipated to endanger public health or welfare. Such an
evaluation would also consider the appropriate level of any controls, based on the criteria
established in section 202(l)(2). Inclusion of a compound on the MSAT list does not decide
these issues, but instead identifies those compounds for which such an evaluation would
appear to be warranted.
(C) An independent third party review should be conducted by EPA of the Mobile
Source Air Toxics (MSAT) list of compounds.
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Response to Comments
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(1) Commenter questions the selection of some of the compounds EPA has
identified as MSATs, in particular the commenter does not believe diesel
exhaust is appropriate for inclusion in the MSAT list. The commenter
discusses the ability of the Health Effects Institute (HEI) to conduct health
effects testing on specific compounds of interest as well as their ability to
assist the Agency in assessing which pollutants might be of pubic health
concern.
Letters:
Alliance of Automobile Manufacturers (IV-D-11) p. 2
Response to issue 3.3(C)(1): We have and will continue to invite comment and review of
our Mobile Source Air Toxics list as new information becomes available. We are actively
engaged with HEI in setting priorities and directions for work funded through this
organization. Research funded through HEI is used by EPA in determining the cancer and
noncancer health effects of the compounds listed in the Integrated Risk Information System
that EPA uses in the approach to list MSAT. The specific issue of inclusion of diesel exhaust
in our list of MSAT is addressed under the response to comment on issue 3.3.3 (B)(1)
through 3.3.3 (B)(5).
3.2: Methodology for Identifying MSATs
(A) MSATs should not be limited to those compounds identified on the Integrated
Risk Information System (IRIS).
(1) EPA should use emission speciation profiles as the primary data source used
to list a MSAT. Commenter notes several reports on toxic compounds other
than IRIS that could be used to flesh out EPA's MSAT list.
Letters:
NESCAUM (IV-D-10)p. 4-6
Response to issue 3.2(A)(1): Since the MSAT list specifically identifies those compounds
that have the potential to cause a serious health effect, we cannot rely solely on emission
speciation profiles as the primary source of data to list a compound as an MSAT. The
Agency has established IRIS as the clearinghouse for all Agency consensus information
related to the potential cancer and noncancer health effects of individual compounds. While
other databases exist that report potential toxic effects of specific compounds, the review
process for these databases is not consistent with that for IRIS.
3.3: Compounds on MSAT List
3.3.1: Specific Pollutants to Exclude from List
(A) Commenter proposes that lead, manganese or manganese compounds,
dioxin/furan, arsenic compounds, chromium compounds, mercury compounds,
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Response to Comments
December 20, 2000
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and nickel compounds be removed from the list because they are either already
regulated by EPA or they do not occur in high enough levels.
(1) Commenter provided no further supporting information or detailed analysis.
Letters:
Koch Petroleum Group (IV-D-36) p. 2-3
Response to issue 3.3.1(A)(1): See response under3.3.1(C)(1) below.
(B) Arsenic should not be included on the list at least with respect to on-road
sources.
(1) Arsenic is not found in the exhaust of modern gasoline-fueled vehicles.
However, commenter notes that it may be emitted by non-road and aircraft
sources. Commenter cites an SAE report that arsenic was found to be not
significantly greater than zero in 1995 Ford vehicle tests. Commenter
recommends that the Draft Support Document indicate that arsenic was
below the limits of detection.
Letters:
Alliance of Automobile Manufacturers (IV-D-11) p. 3
Response to issue 3.3.1(B)(1): While in the speciation study to which the commenter
refers,3 arsenic was not found in motor vehicle exhaust at levels above the method detection
limit, we include arsenic on the motor vehicle list of MSATs due to the presence of this
element in the SPECIATE database for motor vehicle emissions.4 Updates to the SPECIATE
database are planned for the future which may change the listing of some compounds,
including arsenic. When we re-open the rulemaking in 2003 any changes to the SPECIATE
database will be used to revise the MSAT list as required.
(C) N-hexane has little or no inherent activity and should not be included on the
list.
3Ball, James C. (1997) Emission Rates and Elemental Composition of Particles
Collected from 1995 Ford Vehicles Using the Urban Dynamometer Driving Schedule, the
Highway Fuel Economy Test, an the US06 Driving Cycle. Society of Automotive Engineers,
SAW paper No. 97FI-376.
4EPA (1993) Volatile Organic Compound (VOC) / Particulate Matter (PM) Speciation
Data System (SPECIATE), Version 1.5. http://www.epa.gov/ttn/chief/software.html#speciate.
Arsenic is found in profiles 32102 and 32103, for light duty diesel vehicles. These data were
originally from the PM10 Source Composition Library for the South Coast Air Basin,
Prepared by NEA, Inc., July 15, 1987.
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(1) The health effects of n-hexane are only at very high concentrations, and it is
likely that n-hexane at ambient concentrations has no effects on any
organism.
Letters:
Alliance of Automobile Manufacturers (IV-D-11) p. 3
Response to issue 3.3.1(A)(1) and (C)(1): As explained above, our approach for listing a
compound as an MSAT is based on the presence (not the quantity of emissions) of the
compound in the emissions from motor vehicles or their fuels and an Agency consensus
view, as expressed on IRIS, that the compound has the potential to cause serious adverse
health effects. In keeping with this approach, we will maintain n-hexane, lead compounds,
manganese compounds, dioxin/furan, arsenic compounds, chromium compounds, mercury
compounds, and nickel compounds on our list of MSATs. As discussed above, it should be
noted that inclusion of these compounds on the MSAT list is not itself a determination by
EPA that environmental exposures to emissions of the compound in fact present a risk to
public health or welfare, or that it is appropriate to adopt controls to limit the emissions of
such a compound from motor vehicles or their fuels. The purpose of the list is to provide a
screening tool that identifies those compounds emitted from motor vehicles or their fuels for
which further evaluation of emissions controls is appropriate. While some of these
compounds may be regulated under separate EPA programs, this list is specific for those
compounds emitted from motor vehicles.
(D) Propionaldehyde should not be added to the list.
(1) Given the low expected toxicity of propionaldehyde, it should not be included
as a HAP from mobile sources.
Letters:
Alliance of Automobile Manufacturers (IV-D-11) p. 3
Response to issue 3.3.1(D)(1): We are not including propionaldehyde on the list of MSATs
at this time because we do not have an Agency consensus view as expressed on IRIS
regarding the potential serious adverse health effects associated with exposure to this
pollutant. EPA will continue to assess the possible inclusion of this compound on the list of
MSATs when we re-open this rulemaking in 2003.
(E) Styrene should be removed from the list.
(1) Styrene is not a fuel component and is only present as a product of
combustion. Because EPA does not establish any specific regulatory
requirements or criteria relating to styrene, because the toxicological review
of styrene is still underway, because its presence in gasoline is questionable,
and because of technical inconsistencies and data gaps relating to styrene
and mobile source emissions, EPA should defer the determination of whether
styrene is an MSAT to a future rulemaking. The current toxicological review
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being conducted under the IRIS program will allow for an appropriate
technical determination in the future.
Letters:
Styrene Information and Research Center (IV-D-12) p. 2
Response to issue 3.3.1(E)(1): The Agency re-assessment of styrene is being conducted to
incorporate new information regarding potential noncancer and cancer health effects
resulting from exposure to this compound and will not result in the removal of styrene from
the IRIS database. In the NPRM we mistakenly listed styrene as a component of gasoline.
Styrene is a product of gasoline combustion and is currently listed in IRIS for ingestion and
inhalation noncancer health effects. In keeping with our approach to list a compound as an
MSAT based on the presence of the compound in the emissions from motor vehicles or their
fuels and an Agency consensus view, as expressed on IRIS, that the compound has the
potential to cause serious adverse health effects, we are maintaining styrene on our list of
MSATs.
3.3.2: Additional Pollutants that EPA Should List
(A) EPA should investigate whether methanol and/or methyl nitrite should be
added to the MSAT list.
(1) Commenter attaches two articles discussing how the combustion of gasoline
with methanol and MTBE may create methyl nitrite, and that the production of
methyl nitrite in MTBE may be contributing to epidemics of asthma. The
commenter states the need to establish whether methanol and/or methyl
nitrite should be added to the list of mobile source air toxics. (Troops et al.,
"NO reduction over La2O3 using methanol, Catalysis Letters 2000, 64; P.M.
Joseph, "New Hypotheses for MTBE Combustion Products, 92nd Annual
Meeting Air & Waste Management Association, June 20-24, St. Louis,
Missouri.)
Letters:
Browne, William G. (IV-D-6) p. 1-2
Response to issue 3.3.2(A)(1): Regarding methyl nitrite, the Agency does not have an
Agency consensus as expressed on IRIS regarding the potential health effects of methyl
nitrite and therefore will not list methyl nitrite as an MSAT at this time. We did not include
methanol on our proposed list of MSAT because it was not identified in our analysis of
speciated emissions from motor vehicles. Instead, in the NPRM, we requested comment on
whether methanol and ethanol, by virtue of their use in alternative fuel vehicles, should be
included on the list. The commenter directed EPA to studies that identify methanol as an
emissions product of motor vehicles burning reformulated gasoline. In order to provide a full
opportunity for public comment regarding the information received, we will address the
addition of methanol to the MSAT list in a future rulemaking. We believe it is reasonable to
defer making a decision on listing methanol until after today's rulemaking, because listing in
today's rulemaking would not result in additional controls. The existing motor vehicle VOC
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Response to Comments
December 20, 2000
Page 34
controls will reduce emissions of methanol along with other gaseous toxics and fuel controls
will need to be considered in subsequent rulemakings. As part of the future notice
addressing addition of methanol to our list of MSAT, we will also evaluate possible controls in
accordance with section 202(l)(2) as appropriate.
(B) EPA should include propionaldehyde and 2,2,4-trimethylpentane on the MSAT
list.
(1) The CAAA has specifically listed these pollutants as HAPs, and therefore
EPA need not draw any conclusions on the potential adverse health effects
associated with exposure to these pollutants.
Letters:
Consumer Policy Institute (IV-D-8) p. 4
(C) EPA should further study 2,2,4-trimethlypentane for potential inclusion.
(1) Acute and chronic testing of this compound should be continued to better
understand its potential toxicity.
Letters:
Alliance of Automobile Manufacturers (IV-D-11) p. 4
Response to issue 3.3.2 (B)(1) and (C)(1): We are not including propionaldehyde or
2,2,4-trimethylpentane on the list of MSATs at this time because we do not have an Agency
consensus view as expressed on IRIS regarding the potential serious adverse health effects
associated with exposure to this pollutant. EPA will continue to assess the possible inclusion
of these compounds in the list of MSATs when we re-open this rulemaking in 2003.
3.3.3: Additional Pollutants that EPA Should Not List
(A) EPA should not add methanol to the MSAT list.
(1) EPA did not make a full, reasonable and good faith effort to solicit broad
public input on the question of listing methanol as an MSAT. Without full
notice and comment on this issue, a decision on the part of EPA to list
methanol on the MSAT list could be viewed as arbitrary and capricious.
Thus, if EPA chooses to press forward with listing methanol, it should do so
only in a supplemental or separate proposed rulemaking.
Letters:
American Methanol Institute (IV-G-03) p. 1-2, 4-5
Response to issue 3.3.3(A)(1): We did not include methanol on our proposed list of
MSAT because it was not identified in our analysis of speciated emissions from motor
vehicles. Instead, in the NPRM, we requested comment on whether methanol and ethanol,
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December 20, 2000
Page 35
by virtue of their use in alternative fuel vehicles, should be included on the list. During the
comment period, one commenter directed EPA to studies that identify methanol as an
emissions product of motor vehicles burning reformulated gasoline. In order to provide a full
opportunity for public comment regarding information received we will address the addition of
methanol to the MSAT list in a separate rulemaking.
(2) Even if EPA could overcome the procedural problems, EPA has produced no
data to support listing methanol as an MSAT. The data used for listing
methanol in IRIS are out-of-date and not comprehensive. The AWMA article
that EPA appears to rely on, although published in 1994, is based on
unrepresentative fuel in vehicles that are 16-24 years old. In addition, the
only comment mentioning methanol is more concerned with methyl nitrite; if
EPA wants to list an additional MSAT, it should consider that substance, not
methanol. Also, in listing methanol but not ethanol (which does yield toxic
exhaust products), EPA is treating ethanol and methanol inconsistently.
Finally, EPA fails to analyze the overwhelming preponderance of biogenic
methanol versus mobile source emissions.
Letters:
American Methanol Institute (IV-G-03) p. 2-4
Response to issue 3.3.3(A)(2): As stated above, in order to provide a full opportunity for
public comment regarding the information received, we will address the addition of methanol
to the MSAT list in a separate rulemaking. In that action we will address any comments on
the data used at that time to support EPA's decision.
(B) EPA should not add ethanol to the MSAT list.
(1) The Agency is correct in not listing fuel ethanol as an MSAT.
Letters:
Renewable Fuels Association (Insert Comment Identification) p. 1-2
Response to issue 3.3.3(B)(1): The Agency agrees that ethanol should not be included in
the list of MSATs at this time because we don't have peer-reviewed consensus Agency
opinion on the toxicity of ethanol as reflected in the Integrated Risk Information System.
3.3.4: Listing of Diesel Exhaust
(A) Commenter supports listing of whole diesel exhaust rather than just
participate.
(1) Commenter provides no further supporting information or detailed analysis.
Letters:
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Response to Comments
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Commonwealth of MA DEP (IV-D-13) p. 1
NESCAUM (IV-D-10)p. 7
(2) Emissions control technologies could control diesel particulate while leading
to increased risks from exposure to gaseous diesel emissions.
Letters:
Consumer Policy Institute (IV-D-8) p. 4
(3) Diesel exhaust is a known or suspected cause of cancer or other serious
health consequences, and EPA should control it accordingly. One of the
commenters notes that according to a study by the State and Territorial Air
Pollution Program Administrators, more than 1100 people in the Portland
metro area will get cancer from diesel emissions over a lifetime of exposure.
Another commenter supported the listing because it will help EPA address
diesel exhaust concerns, especially from non-road sources.
Letters:
Clean Air Network, et al (IV-D-38)
Oregon Environmental Council (IV-D-9) p. 1
Response to issues 3.3.4 (A)(1) through (A)(3): We agree that diesel exhaust should not
be listed as diesel particulate matter only because currently available science, while
suggesting an important role for the particulate phase component of diesel exhaust, does not
attribute the serious cancer and noncancer health effects independently to diesel particulate
matter separate from the gas phase components. We agree that, in part because of the
health effects attributed to diesel exhaust, appropriate controls on diesel exhaust should be
implemented. We are promulgating heavy-duty engine and vehicle standards and on-
highway diesel fuel sulfur control requirements to achieve the greatest degree of control that
is technologically feasible. We do not agree that the data currently available provide
sufficient information from which to estimate the possible number of cancer cases attributable
to diesel exhaust in specific geographic regions. Instead of listing whole diesel exhaust, we
have chosen to be more specific about the toxic components of diesel exhaust by listing
diesel particulate matter and diesel exhaust organic gases.
(B) Commenter opposes classification of diesel exhaust as a mobile source toxic.
(1) One commenter stated that individual compounds and components of diesel
exhaust can be controlled with aftertreatment technology, but "diesel exhaust"
can only be controlled by restricting or eliminating the diesel engine. The
commenter argued that the Act was intended to focus not on the type of
engine but on the specific compounds emitted from vehicles which may pose
health concerns. Another commenter raised similar concerns and argued that
the listing would penalize unfairly the diesel engine because "diesel exhaust"
can not be reduced or eliminated even if the nature of the compounds within
the exhaust are modified. These and other commenters argued that EPA
must identify the specific components of diesel exhaust, study these
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Response to Comments
December 20, 2000
Page 37
components, and establish controls for these components if necessary based
on those studies. For instance, one commenter noted, CO2 and water vapor
are the primary components of diesel exhaust, but clearly are not toxics.
Another commenter argued that one of the criteria EPA used to list MSATs
was speciated emissions data, which clearly cannot apply to diesel exhaust.
Letters:
Alliance of Automobile Manufacturers (IV-D-11) p. 4-5
Alliance of Automobile Manufacturers (IV-F-1) p. 64
American Petroleum Institute (IV-D-21) p. 6
Engine Manufacturers Association (IV-D-39) p. 2-5, att.
Engine Manufacturers Association (IV-F-1) p. 10,14,16
Koch Petroleum Group (IV-D-36) p. 3
Marathon Ashland Petroleum, LLC (IV-D-15) p. 2, 6
National Petrochemical and Refiners Association (IV-D-33) p. 15
(2) A broad and vague listing of diesel exhaust fails to give diesel fuel producers
and diesel engine manufacturers a clear target to consider for potential
engineering changes. One commenter noted that even if manufacturers
eliminated all toxic compounds in the exhaust, diesel engines would still be
deemed to have toxic "diesel exhaust" emissions, which documents the illogic
of EPA's proposal. This vague listing also makes it impossible to establish a
metric for measuring the listed compound in the ambient air or in emissions,
or to determine the emissions reduction levels achievable through various
controls.
Letters:
Engine Manufacturers Association (IV-D-39) p. 3, 5, att.
Engine Manufacturers Association (IV-F-1) p. 14
Tosco (IV-D-41)p. 2
(3) Commenter cites its previous comments under the HDDE rule, and states that
the data supporting a connection between diesel exhaust and lung cancer are
extremely weak, with conflicting results, and limited evidence of causality in
the epidemiological database. These weak data are insufficient to support
inclusion of diesel exhaust as the only non-HAP on the MSAT list. Moreover,
as EPA acknowledges in the Technical Support Document for this
rulemaking, the non-cancer health effects identified for diesel exhaust appear
to be the same as those caused by fine PM. Thus there is no basis for
including diesel exhaust as an MSAT based on non-cancer health effects, but
not including other contributors to PM.
Letters:
International Truck and Engine Corp. (IV-D-30) p. 3
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December 20, 2000
Page 38
(4) Commenter argues that listing diesel exhaust is not scientifically supportable.
The composition of diesel exhaust is variable based on numerous factors.
Moreover, over 99% of diesel exhaust consists of N, O2, CO2 and H2O, none
of which are toxic. In addition, diesel exhaust is not being treated equally with
other emission sources: by listing diesel exhaust as toxic, EPA is indicating
that emissions from one source are toxic while those same emissions from
any other source are not toxic. Finally, any listing should await the final
outcome of the formal review process by CASAC of the Diesel Health
Assessment Document prepared by EPA.
Letters:
Engine Manufacturers Association (IV-D-39) p. 2-6, att.
Engine Manufacturers Association (IV-F-1) p. 14-15
(5) While opposing the listing of diesel emissions as an MSAT, some
commenters did indicate that, at most, EPA should consider only diesel
particulate as a potential toxic contaminant, which is the only fraction of diesel
exhaust that EPA has identified as being of potential concern. EPA would
have to study diesel PM further to determine if it should be reported as a
separate toxic substance. One of these commenters noted that the Tier 2
and HDDE rules likely would address many of the concerns with diesel
exhaust, and that by focusing only on diesel PM, EPA would be able to
consider any remaining toxic issues with diesel exhaust. Another commenter
suggested listing particulate matter generally, and then studying the issue
further with a later decision as whether any particular subset of particulate
matter should be listed. Another commenter similarly noted that the IRIS
listing (which EPA uses as a basis for its proposal) used studies based on
diesel particulate matter, not whole diesel exhaust. This background is one
reason why EPA should not list diesel exhaust. However, this and other
commenters also believe that even diesel particulate matter should not be
listed. One reason is that the IRIS listing is currently under review because of
uncertainty. The commenters opposed to listing diesel PM stated that it is
unclear whether diesel PM is distinguishable from other sources of PM. The
appropriate listing, if any, would have to be PM generally, or PM within a
certain size range, because EPA cannot distinguish diesel PM from other
sources of PM.
Letters:
Alliance of Automobile Manufacturers (IV-D-11) p. 5
Alliance of Automobile Manufacturers (IV-F-1) p. 64-65
Detroit Diesel (IV-F-1) p. 75-76
Engine Manufacturers Association (IV-D-39) p. 5, att.
Engine Manufacturers Association (IV-F-1) p. 15
ExxonMobil (IV-D-16) p. 1-2
International Truck and Engine Corp. (IV-D-30) p. 4
Marathon Ashland Petroleum, LLC (IV-D-15) p. 6
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Response to Comments
December 20, 2000
Page 39
Response to issues 3.3.3 (B)(1) through (B)(5): We have changed our designation of
diesel exhaust as an MSAT to diesel particulate matter and diesel exhaust organic gases
(DPM + DEOG). This listing approach is more precise about the components of diesel
exhaust expected to contribute to the observed cancer and noncancer health effects and
provides a framework for developing regulatory control strategies. Currently available
science, while suggesting an important role for the particulate phase component of diesel
exhaust, does not attribute the serious cancer and noncancer health effects independently to
diesel particulate matter separate from the gas phase components. Because the studies
cannot separate the health effects of the particulate and gaseous components of diesel
exhaust, nor identify specific compounds responsible for the health effects of diesel exhaust,
we are listing them together as a single MSAT.
We have made this change in listing diesel exhaust in response to the commenters
concerns. This listing excludes the nontoxic components of diesel exhaust (e.g., water
vapor, nitrogen, oxygen) while still including the components of diesel exhaust that are likely
to contribute to the cancer and noncancer hazard (with the exception of the gaseous phase
criteria pollutants, such as NOx, SO2 and CO which are subject to National Ambient Air
Quality Standards). The listing of DPM + DEOG provides Federal and State government,
industry, and public interest groups an ability to focus on the components of diesel exhaust
that pose a potential concern for public health as well as providing specific targets for
emissions reductions should future analysis indicate that additional controls become
necessary.
The Integrated Risk Information System (IRIS) listing for diesel engine emissions and
the summary of cancer and noncancer health effects described in the draft Health
Assessment Document for Diesel Exhaust are based on studies linking serious adverse
health effects to whole diesel exhaust exposure, using diesel particulate matter as the
measure of dose. Speciation of diesel exhaust is not a criteria for listing as an MSAT. To be
listed as an MSAT the candidate pollutant must be present in the emissions of motor vehicles
and have a listing on the EPA IRIS database.
We disagree with the comment that the data supporting a connection between diesel
exhaust and lung cancer are extremely weak. Individual epidemiological studies numbering
about 30 show increased lung cancer risks of 20 to 89 percent within the study populations
depending on the study. The draft Health Assessment for Diesel Exhaust evaluated only 22
of these studies because those were identified as being the most relevant for risk
assessment. Among these 22 studies, 16 reported statistically significant increased lung
cancer risks, ranging from 20 to 167 percent, associated with diesel exhaust exposure. Of
the remaining six studies, the authors report either negative or inconclusive results.
Additional evidence supporting the identification of a cancer hazard for diesel exhaust
includes the observation of tumors in animals following applications of various fractions of the
diesel exhaust mixture to skin, and implantation of diesel particles in respiratory tissue.
Recognizing that diesel exhaust is a complex mixture of carbon particles and associated
organics and other inorganics, it is unclear what fraction or combination of fractions is
responsible for the carcinogenicity and other respiratory effects. It has been shown,
however, that the carbon particles as well as the organics have the potential to be active
toxicological agents, either because of the potential to be irritants which cause inflamation, or
because of a capacity to produce mutagenic and/or carcinogenic activity. In the case of the
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Response to Comments
December 20, 2000
Page 40
organics (which exist both in particle and gaseous states in diesel exhaust) some have potent
mutagenic and carcinogenic properties. In addition, some evidence for the bioavailability of
these particle-adsorbed compounds supports a hypothesis that the adsorbed organics are
bioavailable to the lung as well as being transported to sites distant from the lung.
We conclude that the consistent finding of elevated lung cancer risk across several
different occupational workers (including truck drivers, railroad workers, heavy equipment
operators, and farm tractor drivers) support our determination that diesel exhaust is likely to
be carcinogenic to humans by inhalation exposure. The Clean Air Scientific Advisory
Committee (CASAC) of the Science Advisory Board concurred with the Agency that the
available data form a basis for the conclusion that diesel exhaust is likely to be carcinogenic
to humans by inhalation (public session October 12-13, 2000).
Our interpretation of the data is consistent with that of several experts, including an
expert panel (the Diesel Working Group) formed by the Health Effects Institute.5 In the 1995
HEI study, Cohen and Higgins reviewed 34 epidemiological studies and concluded that "The
studies reviewed above suggest that exposure to diesel exhaust in a variety of occupational
circumstances is associated with small to moderate relative increases in lung cancer
occurrence and/or mortality. These elevations do not appear to be fully explicable by
confounding due to cigarette smoking or other sources of bias. Therefore, at present,
exposure to diesel exhaust provides the most reasonable explanation for these elevations."6
EPA joins many other organizations in finding that diesel exhaust or diesel particulate
matter is a likely or probable human carcinogen. In the late 1980s, the International Agency
for Research on Cancer (IARC) determined that diesel exhaust is "probably carcinogenic to
humans" and the National Institute for Occupational Safety and Health classified diesel
exhaust a "potential occupational carcinogen."7 8 In 1996, the International Programme on
Chemical Safety of the World Health Organization listed diesel exhaust as a "probable"
5Health Effects Institute (1995) Diesel Exhaust: A Critical Analysis of Emissions,
Exposure, and Health Effects. Health Effects of Diesel Exhaust: Epidemiology; A.J. Cohen
and M.W.P. Higgins. p. 268.
6Health Effects Institute (1995) Diesel Exhaust: A Critical Analysis of Emissions,
Exposure, and Health Effects. Health Effects of Diesel Exhaust: Epidemiology; A.J. Cohen
and M.W.P. Higgins. p. 268.
7 National Institute for Occupational Safety and Health (NIOSH) (1988) Carcinogenic
effects of exposure to diesel exhaust. NIOSH Current Intelligence Bulletin 50. DHHS,
Publication No. 88-116. Centers for Disease Control, Atlanta, GA.
8 International Agency for Research on Cancer (1989) Diesel and gasoline engine
exhausts and some nitroarenes, Vol. 46. Monographs on the evaluation of carcinogenic risks
to humans. World Heath Organization, International Agency for Research on Cancer, Lyon,
France.
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December 20, 2000
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human carcinogen.9 In 1998, the California Office of Environmental Health Hazard
Assessment (OEHHA, California EPA) identified diesel PM as a toxic air contaminant due to
the noncancerand cancer hazard and because of the potential magnitude of the cancer
risk.10 Most recently, the U.S. Department of Health and Human Services National
Toxicology Program designated diesel exhaust particles as "reasonably anticipated to be a
human carcinogen" in its Ninth Report on Carcinogens.11
We state in the NPRM that there is overlap between the noncancer health effects
observed with exposure to diesel exhaust and ambient PM, however, there is a wealth of
information available regarding noncancer health effects attributable to ambient PM relative
to the existing database for diesel exhaust. In addition, there are endpoints specific to diesel
exhaust such as the potential to stimulate allergen-induced allergic airway disease in
sensitive humans that have not been reported for ambient PM. Diesel engine emissions are
listed in the IRIS database for the observed noncancer health effects and therefore this
pollutant satisfies our listing approach for an MSAT. This listing is not based on health
effects attributable solely to diesel PM as the commenter asserts. Diesel PM was used as
the measure of dose in these studies which exposed laboratory animals to whole diesel
exhaust. The animal test data are quite definitive in providing a basis to anticipate a hazard
to the human lung resulting from diesel exhaust exposure based on the irritant and
inflammatory reactions observed in test animals. Thus, EPA believes, and CASAC
concurred, that it is appropriate to use the animal data to determine a reference
concentration for diesel exhaust (as measured by diesel PM). In the public session on
October 12-13, 2000, CASAC concurred with the calculation of the inhalation reference
concentration (RfC) presented in the July 2000 Health Assessment Document with the
addition of an uncertainty factor of three to extrapolate the observed health effects in animals
to humans. This additional uncertainty factor is being used on the recommendation of
CASAC and will result in an RfC of approximately 5 ug/m3 which matches the current RfC
listed on IRIS. The CASAC of the Science Advisory Board has concurred with the findings in
the draft Health Assessment Document for Diesel Exhaust (public session October 12-13,
2000) and the Agency is in the processes of preparing a final Health Assessment Document
that will address the comments made by the CASAC panel.
We are not listing ambient PM as an MSAT because it does not conform to the
approach described above for listing an MSAT. The Agency has specific information
regarding the cancer and noncancer hazard posed by diesel exhaust and we are acting on
this basis. It would be under inclusive to list only those compounds for which we have health
effects data because the myriad of compounds potentially responsible for the cancer and
noncancer health effects observed with exposure to diesel exhaust have not been identified.
9 World Health Organization (1996) Diesel fuel and exhaust emissions: International
program on chemical safety. World Health Organization, Geneva, Switzerland.
10 Office of Environmental Health Hazard Assessment (1998) Health risk assessment
for diesel exhaust, April 1998. California Environmental Protection Agency, Sacramento, CA.
11U.S. Department of Health and Human Services (2000) Ninth report on
carcinogens. National Toxicology Program, Research Triangle Park, NC.
ehis.niehs.nih.gov/roc/toc9.html.
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(6) EPA has overstated the emissions benefits of the proposal by relying on
overly optimistic projections of the increase of diesel vehicle use. The Energy
Information Administration (EIA) projections of VMT growth rates are lower,
calling into question the reasonableness of EPA's estimates. EPA used ElA's
Annual Energy Outlook to forecast highway diesel consumption, yet the
difference in projected growth rates is significant. EPA has not adequately
justified the growth projections of new vehicle HDDEs. Similarly, EPA's
projected diesel production estimates are also out of line with EIA data. EPA
overstated highway diesel demand and baseline emissions, and as a result,
has overstated the emissions reductions benefits of the rulemaking.
Letters:
National Petrochemical and Refiners Association (IV-D-33) p. 12-15
Response to issue 3.3.3.(B)(6): The emission inventories presented in this rule have been
revised from the proposal based on updated modeling information for on-highway vehicles.
The modeling incorporates the impact of all our current and proposed on-highway control
programs, including the proposed 2007 heavy-duty engine standards. We base our on-
highway inventory estimates on our assumptions of vehicle miles traveled (VMT) and
emission factor estimates. We base our on-highway diesel fuel consumption estimates on
our assumptions of vehicle miles traveled (VMT) and fuel economy.
With regard to VMT, the analysis uses updated heavy-duty vehicle VMT estimates.
The revised VMT estimates were based on the Federal Highway Administration total VMT for
all motor vehicles apportioned to the various vehicle categories. New VMT splits broken out
by vehicle class and fuel type were developed in our efforts to create an updated version of
MOBILES. As a result, the VMT projections increased by 40 percent for heavy-duty diesel
vehicles.
With regard to emission factors, we have updated the PM emission factors and HC
emission factors. The new PM emission factors were also developed in our efforts to create
an updated version of MOBILES. The new HC emission factors incorporate revised
estimates of the levels to which manufacturers will certify under the proposed 2007 heavy-
duty engine standards.
With regard to fuel economy, historical fuel consumption estimates (1987-1996)
come from a report performed to support the upcoming MOBILES model.12 These historical
fuel consumption estimates suggest that fuel economy is improving. For future fuel
consumption estimates, we extrapolate the historical estimates into the future using a
constant, linear improvement in terms of miles per gallon.
As a check on our diesel fuel consumption estimates, we used ElA's 1999 Annual
Energy Outlook (AEO 1999) to project highway diesel fuel production for use in the U.S.
12 "Update Heavy-Duty Engine Emission Conversion Factors for MOBILES: Analysis
of Fuel Economy, Non-Engine Fuel Economy Improvements, and Fuel Densities," U.S.
Environmental Protection Agency, EPA-420-P-98-014, May 1998.
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According to AEO 1999, highway fuel consumption was projected to increase 1.5% per year.
Commenters correctly point out that this is inconsistent with AEO 2000 which projects the
lower growth rate of 1.0% per year. This change in growth rate projections is based on
calculations using the gross domestic product index which are described in the EIA report.
EIA is currently in the process of finishing AEO 2001 which is expected to show even higher
diesel fuel growth projections than AEO 1999. Based on preliminary information13, we
estimate that AEO 2001 will project an annual diesel consumption growth rate in the range of
1.6% to 1.9%. Based on these estimates, we believe that our fuel consumption projections
are supported by the projections made by EIA.
Both we and EIA project similar improvements in fuel economy into the future. This
means that both we and EIA project higher growth in VMT than in fuel consumption. As a
result, we estimate that the AEO 2001 VMT growth estimates will be as high or higher than
those we use in our emissions benefits calculations. Therefore, if anything, we may be
conservative in our estimates of the emission benefits of the proposed 2007 heavy-duty
engine standards.
(7) Supports EMA comments on this issue.
Letters:
Alliance of Automobile Manufacturers (IV-D-11) p. 5
Tosco (IV-D-41)p. 2
Response to issue 3.3.3.(B)(7): No response required
3.4: Suggestions to improve the Draft Technical Support Document
(A) Commenter offers suggestions to improve the Draft Technical Supporting
Document.
(1) EPA should discuss the need for chlorine to generate dioxin and document
the ability to separate diesel PM from other forms of PM.
Letters:
Alliance of Automobile Manufacturers (IV-D-11) p. 7-8
Response to issue 3.4(A)(1): Dioxin formed during the combustion process requires a
source of chlorine. Sources of chlorine in internal combustion engines include fuel, motor oil
and intake air. The ability of investigators to use chemical source profiles to separate diesel
PM from other sources of ambient PM has been demonstrated by 1) Fujita, E; Watson, JG;
Chow, JC; et al. (1998) Northern Front Range Air Quality Study, volume C: source
apportionment and simulation methods and evaluation. Prepared for Colorado State
13 "Early Release of the Annual Energy Outlook 2001," available at
www.eia.doe.gov/oaif/aeo/earlyrelease/index.html, Energy Information Administration,
downloaded from EIA web site on December 12, 2000.
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University, Cooperative Institute for Research in the Atmosphere, by Desert Research
Institute, Reno, NV; 2) Schauer, JJ; Rogge, WF; Hildemann, LM; et al. (1996) Source
apportionment of airborne particulate matter using organic compounds as tracers. Atmos
Environ 30(22):3837-3855; and 3) Maricopa Association of Governments (1999) The 1999
Brown Cloud Project for the Maricopa Association of Governments Area, Final Report,
December 1999.
(2) EPA should: describe the oral slope factor; go into more detail in the
discussion of the toxicity of acetaldehyde and formaldehyde.
Letters:
Alliance of Automobile Manufacturers (IV-D-11) p. 7-8
Response to issue 3.4(A)(2): Using the EPA 1986 Risk Assessment Guidelines, a
carcinogen can be classified as a known, probable, or possible human carcinogen (Group A,
B or C, respectively). A quantitative assessment is performed depending on the
weight-of-evidence and the suitability of the available information regarding a relationship
between the dose of a compound and the effect it causes (dose-response data). If suitable
dose-response data are available, a quantitative assessment is calculated which can be
presented in one or more of three ways. If the agent is active upon ingestion, then the slope
of a dose-response curve generated from orally exposed animals or humans is calculated.
This is referred to as the oral slope factor and is presented as risk per milligram of agent
ingested per kilogram of body weight per day.
We disagree that there is a need to provide additional detail regarding the toxicity of
acetaldehyde and formaldehyde. The toxicity of each of the MSATs was discussed in
Chapter 3 in the Technical Support Document in enough detail to provide the essential
information regarding the cancer and noncancer health effects of each compound. Additional
information regarding the toxicity of each of these compounds can be found on EPA
Integrated Risk Information System web page: http://www.epa.gov/iris.
(3) EPA should: provide further support for diesel PM's contribution to emission
inventories presented in Section 3, Chapters of the Technical Support
Document and clarify the discussion related to interpolating toxics emissions
over the full range of fuel TOG emissions.
Letters:
Alliance of Automobile Manufacturers (IV-D-11) p. 7-8
Response to issue 3.4(A)(3): EPA provides further support for the contribution of diesel PM
to emission inventories in Chapter 2 of the Health Assessment Document for Diesel Exhaust
that can be found at: http://www.epa.gov/ncea/dieslexh.htm. Regarding the interpolation of
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toxics emissions over the full range of fuel TOG emissions, EPA has data on toxic versus
TOG emissions for normal emitters as a class versus high emitters as a class, obtained from
the Complex Model database. However, data are inadequate to establish a relationship
between toxics and TOG across the full range of TOG emissions. It is possible, as the
commenter suggests, that emissions of photochemically reactive toxics will not increase
linearly with TOG, but in the absence of adequate data, the Agency made a conservative
assumption that the relationship was linear.
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ISSUE 4: CURRENT CONTROLS ON MSAT EMISSIONS
4.1: On-highway Controls
(A) Current vehicle and fuel controls will achieve a significant reduction in air
toxics.
(1) Commenter notes that significant emissions will result from both Tier 2 and
the HD diesel fuel rules, achieving a 75-95% reduction in air toxics emissions
from mobile sources. Current controls are also estimated to reduce emissions
of benzene and total VOCs by 35% and diesel PM by 23%.
Letters:
Association of International Automobile Manufacturers (IV-D-7) p. 1
Engine Manufacturers Association (IV-D-39) p. 6, att.
Engine Manufacturers Association (IV-F-1) p. 11
(2) Efforts to reduce particulate and criteria pollutant emissions will also
concurrently reduce air toxics. For example, in-use testing of particulate
aftertreatment devices and BP Amoco ultra-low sulfur fuel in CA showed that
not only was PM reduced to non-detectable levels, but hydrocarbon
emissions were also reduced to near zero.
Letters:
Engine Manufacturers Association (IV-D-39) p. 7, att.
Engine Manufacturers Association (IV-F-1) p. 12
Response
See response to issue 5(A).
4.2: Off-highway Controls
(A) Commenter notes that EPA has in place a comprehensive and stringent
program to control emissions from non-road sources, including increasingly
restrictive Tier 2 and Tier 3 emission standards.
(1) For non-road sources, Phase I regulations for spark-ignited engines less than
25 horsepower reduced VOC emissions by 30%, and Phase 2 regulations will
provide an additional 60-70% reductions over and above Phase I. Thus, the
continuing successes achieved in reducing MSAT emissions from on-highway
sources should be obtained from non-road sources as well, without the need
for any additional regulatory programs.
Letters:
Engine Manufacturers Association (IV-D-39) p. 7, att.
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Response: We agree that the emission control programs we have put in place for spark-
ignited engines less than 25 horsepower will result in substantial MSAT reductions from that
category. However, we do not agree that the reductions we anticipate from those engines
make additional regulatory programs from nonroad sources unnecessary. As was stated in
the proposal, there are a lot of information gaps in our understanding of nonroad MSAT
emissions. These gaps need to be filled before we can make a determination on the need
for additional nonroad regulatory controls. Further, spark-ignited engines less than 25
horsepower represent only a part of all nonroad engines, and we believe that other
categories of nonroad engine types should be looked at to determine whether further
nonroad controls are appropriate.
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Response to Comments
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ISSUE 5: VEHICLE-BASED CONTROLS
(A) Commenter supports EPA's proposed conclusion not to impose further
controls on motor vehicle engines to control HAPs from mobile sources.
(1) Existing and proposed motor vehicle regulations developed to reduce
emissions of criteria pollutants will result in significant additional reductions of
MSAT emissions in the future, which further obviates the need for any
additional mobile source controls. Tier 2 and HDDE emissions standards will
result in substantial reductions in emissions of HAPs. EPA has predicted that
by 2020 these two regulations will reduce by 75% emissions of benzene,
acetaldehyde, formaldehyde, and 1,3-butadiene. VOCs are expected to
decrease by 76%, and diesel PM by 94% by 2020. (See related comments
under Issue 4.)
Letters:
Association of International Automobile Manufacturers (IV-D-7) p. 1
Engine Manufacturers Association (IV-D-39) p. 1, att.
International Truck and Engine Corp. (IV-D-30) p. 1-2
(B) EPA should evaluate several available options for MSAT vehicle standards.
(1) EPA should evaluate: fuel efficiency standards; an effective inspection and
monitoring program; use of OBD; and regulation of non-road vehicles.
Another commenter stated similarly that, to control benzene and 1,3-
butadiene, EPA could introduce not only a more stringent fuel benzene cap,
but also could require OBD and the use of emission controls in non-road
engines. To control aldehydes, this commenter recommended that EPA:
require existing trucks and buses be retrofitted with oxidation catalysts,
extend the useful life of HDDE, and introduce OBD for HDDE. For non-road
engines, EPA should apply the same standards listed above, as well as
impose the 15 ppm sulfur cap, and introduce more stringent PM and HC
engine standards.
Letters:
EarthJustice Legal Defense Fund (IV-D-32) p. 6
NESCAUM (IV-D-10)p. 3, 13-15
(C) Vigorous motor vehicle inspection and maintenance (I/M) programs are
essential to any motor vehicle emission control strategy, and should be
included as part of EPA's MSAT program.
(1) 10-30% of vehicles cause the majority of vehicle-related air pollution, as
emissions control equipment deteriorates in older vehicles and as general
wear and tear increase the rate of evaporative emissions. Enhanced I/M
programs are the single most cost-effective air pollution control program at a
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Response to Comments
December 20, 2000
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cost of only $500 per ton of VOCs reduced. The commenter also noted that
EPA has recognized the importance of enhanced I/M programs to ensure that
the expected benefits of reducing tailpipe emission standards are realized.
Letters:
Environmental Systems Products (IV-D-25) p. 5,16
Environmental Systems Products (IV-F-1) p. 53-57
Response to issues 5(A), (B), and (C): We proposed this rulemaking under Section 202(1)
of the Act which directs us adopt regulations to control MSAT emissions under Sections
202(a)(1) and211(c)(1) of the Act. Section 202(a)(1), in turn, authorizes us to set emission
standards for new motor vehicles. In this context, we believe that our Tier 2 light-duty vehicle
program and our recently proposed heavy-duty engine and vehicle standards will achieve the
greatest degree of toxics control achievable under Section 202(1) at this time, and thus, fulfills
the statutory requirements. We agree with the commenters that other approaches such as
inspection and maintenance (I/M) may be able to reduce MSAT emissions from the in-use
fleet. However, we did not propose any such in-use programs in this rulemaking.
Nevertheless, we will continue to consider the potential for in-use programs to achieve MSAT
reductions along with reductions in criteria pollutants.
While we are not establishing additional controls for MSAT emissions from new motor
vehicles in this rulemaking, it is worth discussing some of these promising in-use approaches
that may ultimately achieve further reductions in both MSAT and criteria pollutant emissions,
especially with respect to in-use maintenance and tampering. To address the
malmaintenance issue, EPA has established onboard diagnostic (OBD) requirements for
vehicle manufacturers. These OBD provisions require that vehicle manufacturers install
dashboard indicators that alert drivers to the need for emission-related maintenance, and
electronic monitors that store codes in the vehicle's computer to assist mechanics in the
diagnosis and repair of the malfunction. To address both the malmaintenance and tampering
issues, EPA is working with states to develop and optimize I/M programs that monitor the
emission performance of in-use vehicles. Recently we have been investigating how to best
integrate these programs to use the OBD systems to identify the high-emitting vehicles, as
well as the cause of the emission problem. For heavy-duty vehicles, I/M is more difficult
because it is not as easy to test the larger vehicles. However, we recently established new
OBD requirements for heavy-duty gasoline vehicles under 14,000 pounds GVWR, and
expect to propose similar requirements for all other heavy-duty vehicles within the next year.
As these heavy-duty OBD programs take effect, it will be much more practical to develop
heavy-duty I/M programs that will achieve real emission reductions, especially for PM. With
respect to retrofitting existing vehicles with improved emission control devices, we believe
that it will be appropriate to address diesel retrofits after we have established the new
requirements for in-use diesel fuel. Some of the exhaust aftertreatment technologies being
considered in the recent heavy-duty diesel rule are especially appealing for use in retrofits
because they can be fitted to an existing vehicle as add-on devices without major engine
modifications. However, these technologies are not possible without the proposed changes
to the fuel.
We agree with the commenters that it is important that our useful life values be long
enough to adequately ensure that manufacturers design durable emission controls. That is
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December 20, 2000
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why we recently extended the minimum useful life for heavy heavy-duty engines from
290,000 miles to 435,000 (62 FR 54694 October 21, 1997). In that rulemaking we also
created new provisions that would require an even longer useful life in some cases. The
commenter did not provide data that would allow us to establish longer useful life values.
Thus, while we may extend the minimum useful life values in the future we do not have a
sufficient basis to do so at this time. It is also important to note that the length of the useful
life is an important part of the standard setting process. If we were to change the minimum
requirements for useful life, we would need to reconsider the feasibility of the associated
emission standards.
Nonroad engines are not mentioned in Section 202(1) of the Act. Therefore we did
not propose any new controls engines in this rulemaking. However, we will continue to
consider the potential for MSAT control along with control of other pollutants in our
rulemakings for nonroad engines under Section 213 of the Act. We have implemented
emission standards for most nonroad engines and are in the process of setting standards for
virtually all of the remaining uncontrolled classes of nonroad engines, as well as setting
newer more stringent standards for classes already controlled. These standards will reduce
MSAT emissions significantly from nonroad engines.
(D) EPA should examine vehicle manufacturer's position on octane requirements
in case those might be reduced through improved engine technology or more
realistic engine fuel standards.
(1) Commenter provides no further supporting information or detailed analysis.
Letters:
Gary Williams Energy Corporation (IV-D-3) p. 4
Response to issue 5(D): As described in the previous response, we do not have the
authority to specify the level of octane that a vehicle manufacturer can require solely to
control MSAT emissions. In addition, since higher octane allows higher combustion ratios,
lowering octane could increase fuel consumption.
(E) Commenter writes to apprize EPA of innovative technology to control
emissions and increase fuel economy.
(1) Technology exists to prevent emission of partially oxidized fuel during the first
90 seconds of vehicle operation (which is responsible for almost 90% of
vehicle emissions). Commenter has enclosed two patents for this technology.
Letters:
Brooks, Timothy J. (IV-D-4) p. 2
Response to issue 5(E): See Response to issue 5(F) below.
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Response to Comments
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(F) Commenter is developing an insulated catalytic converter designed to
significantly reduce hydrocarbon emissions, especially toxics, to reach low
emissions.
(1) Commenter notes, however, that EPA needs to develop the test procedures
to certify vehicles equipped with insulated converters. Commenter has
attached test results from real-world conditions to demonstrate the
effectiveness of such technology at reducing toxic emissions during cold-start.
Commenter attached: MECA Demonstration Program of Advanced Emission
Control Systems for Light-Duty Vehicles, Final Report, May 1999; and Burch
and Biel, SULEV and "Off-Cycle" Emissions Benefits of a Vacuum-Insulated
Catalytic Converter, SAE 1999. In follow-up comments, the commenter
argued that adjustments to FTP-75 could be made to allow certification of this
technology without invalidating the test.
Letters:
Benteler Automotive (IV-D-24) p. all
Benteler Automotive (IV-G-4) p. all
Response to issues 5(E) and (F): We are aware of this innovative technology, and believe
that it has the potential to reduce MSAT emissions. However, as noted in the Technical
Support Document, we are uncertain whether it would be cost-effective. Thus we are not
basing new tighter emission standards on it. Nevertheless, we do recognize that our existing
test procedures are not appropriate to test vehicles equipped with these devices. We will
consider making the necessary modifications to the procedures in the future.
(G) EPA should use its section 202(1) authority to promote non-toxic and less toxic
mobile source alternatives that will change the reliance on the internal
combustion engine.
(1) This approach is warranted especially for this program given the long time
horizon for achieving the full benefits of the program (not until 2020). By that
time, many of these concerns can be addressed through increased use of fuel
cell and similar technology.
Letters:
Clean Air Network, et al (IV-D-38) p. 3
Response to issue 5(G): See response to 5(A,B&C).
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Response to Comments
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ISSUES: FUEL STANDARDS
6.1: General Comments to Support Anti-Backsliding Program
(A) Supports proposal to reduce benzene levels in fuels.
(1) Doing so will reduce levels of toxics emissions because benzene is a
combustion precursor of xylene, toluene and ethylbenzene.
Letters:
Alliance of Automobile Manufacturers (IV-D-11) p. 5
Response to 6.1(A)(1): We agree with this comment.
(2) Commenter provides no further supporting information or detailed analysis.
Letters:
Association of International Automobile Manufacturers (IV-D-7) p. 1
Response to 6.1(A)(1): No response required
6.2: General Comments Opposing Anti-Backsliding Program
[Note: Many refiner interests opposed the anti-backsliding program, and their general
positions are summarized in Issue 1.2. Their specific objections to elements of the anti-
backsliding program are detailed in the remaining subissues under Section 6.]
(A) The proposed rule will establish a regulatory program with multiple standards
throughout the country for an otherwise identical product, complicating facility
and company operations, regulatory enforcement, and the functioning of the
fuel markets.
(1) A single company will have different benzene content requirements for each
facility, which also will be different for current production and further
incremental production levels, and different from imported fuel levels. Not
only does this create complicated operations for refiners, but also, if the
market defaults to the tightest specification or the current average level, the
rule will, de facto, be requiring a cleaner product, on average, than currently
produced and will have deviated significantly from its "no backsliding"
purpose and assumed "no cost" premise.
Letters:
U.S. Department of Energy (IV-G-2) p. 2
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Response to Comments
December 20, 2000
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Response to 6.2(A)(1): The commenter provided only a qualitative justification for its
allegation that ouranti-backsliding program would unduly complicate operations and would
make coordination of operations within and between companies increasingly difficult. In fact
refineries already comply with fuel standards that are different for each facility under the anti-
dumping program. Ouranti-backsliding program would simply make these requirements
more stringent for CG, and would extend the refinery-specific nature of the requirements to
the RFG toxics requirement. The fact that we have changed to a toxic performance
requirement instead of the benzene content standard we proposed, and have included a
compliance margin, means that refiners not only have wide flexibility in how they meet their
refinery-specific toxic performance standard, but they can also take advantage of the low
sulfur standard of 30 ppm which begins phasing-in in 2004.
The market as a whole is unlikely to default to the tightest specification of all those applicable
to refineries across the U.S. Our anti-backsliding program will be enforced only at the
refinery gate, thus freeing downstream parties from the need to either comply with a current
national average toxics performance level or to guarantee that all product conforms to the
most stringent possible standard. As a result there is no reason to believe that our anti-
backsliding program will result in further reductions in toxics emissions than are strictly
required.
(B) The imposition of a new specification for gasoline will reduce blending
flexibility and limit refiners' ability to increase production or modify product
slates in response to market changes.
(1) The use of historical baselines, which will also require refiners to build in an
additional compliance margin, minimizes increased production opportunities.
It also removes flexibility to blend, which reduces the ability to shift from CG
to RFG, substitute oxygenates, make changes to achieve early
desulfurization, or make similar changes.
Letters:
National Petrochemical and Refiners Association (IV-D-33) p. 3-4
Response to 6.2(B)(1): Any new control on fuel places some limitations on a refiner's
flexibility. In the case of the anti-backsliding program we are finalizing in today's rulemaking,
however, we believe that the limitations are minimal and the corresponding costs negligible.
The fact that we are finalizing a toxics performance requirement instead of the benzene
content standard we proposed, and are including a compliance margin, maximizes refiners'
ability to react to market changes while maintaining the overcompliance benefits exhibited in
1998-2000.
As described in Chapter? of our Technical Support Document, we do not believe that in
general production volumes over and above a refiner's baseline (1998 - 2000) volume will
result in significant increases in fuel benzene content. As a result it appears unlikely that our
anti-backsliding program will limit a refiner's ability to increase future production volumes for
either CG or RFG. In addition, the toxics performance requirement will allow refiners to take
the low sulfur gasoline requirements, including early sulfur credit generation, into account
when they comply with our anti-backsliding program, further maximizing their ability to
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Response to Comments
December 20, 2000
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produce greater volumes of gasoline in the future, change the amount or type of oxygenate
used, or make other changes to their operations.
Finally, as described in our response to issue 6.8, establishing separate toxics performance
requirements for RFG and CG is an important element of our anti-backsliding program.
Doing so ensures that the overcompliance benefits exhibited in RFG areas in 1998 - 2000
are not lost due to a shift in toxics performance between RFG and CG. Although this does
somewhat limit refiners' flexibility, we believe that the other elements of our anti-backsliding
program sufficiently maximize refiner's flexibility so that our program will not represent an
onerous burden.
6.3: State Pre-emption
(A) States should not be allowed to impose any additional controls on air toxics.
(1) Differing State specifications would create "boutique" fuels and increase the
nation's vulnerability to supply disruptions and market volatility; reduce
flexibility; and contribute to logistical and pipeline problems. Some of these
commenters also noted that State and local specifications increase the need
for segregated batches, thus straining available refinery, pipeline, and
terminal tankage along with other blending and distribution resources.
Letters:
American Petroleum Institute (IV-D-21) p. 5
American Petroleum Institute (IV-F-1) p. 36
Chevron (IV-D-34) p. 2
Citgo Corporation (IV-D-5) p. 4
ExxonMobil (IV-D-16)p. 4
Koch Petroleum Group (IV-D-36) p. 2
Marathon Ashland Petroleum, LLC (IV-D-15) p. 2, 6
Phillips Petroleum Company (IV-D-20) p. 3-4
U.S. Department of Energy (IV-G-2) p. 3
Response to issue 6.3(A)(1): EPA recognizes the concerns expressed by the petroleum
industry that a patchwork of different state fuel standards, sometimes referred to as
"boutique" fuels, may increase the likelihood of disruptions in the fuel supply. In most
situations, EPA believes that a uniform national program is the best way to protect public
health and minimize disruption to the efficiency of the country's fuel distribution network.
EPA's general expectation is that States will limit the adoption of State fuel programs to
situations where local or unique circumstances warrant control.
Today's rule does not change the existing scope of preemption under section
211 (c)(4)(A). By adopting a toxics performance standard that mirrors the existing toxics
performance controls under the RFG and anti-dumping programs, we are not changing the
characteristics or components subject to control under 211(c)(1). As a result, today's
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Response to Comments
December 20, 2000
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rulemaking will not change the current ability, or the restrictions on the current ability, of
States to adopt fuel controls to address local toxics concerns.
(2) Commenters disagree that either of the two options in the preamble are
permissible under the Act to avoid State preemption. EPA's first option would
be to rescind the federal benzene standard if petitioned to do so by a State.
This process is beyond the scope of section 211 (c)(4). Under the CAA,
States can only avoid preemption if the fuel proposal is necessary to achieve
the NAAQS, and EPA cannot create other mechanisms to allow States to
regulate benzene. It is also inconsistent with the purpose of section 211(c)(4)
which is to avoid disruptions to the fuel distribution system. EPA's second
option is to regulate toxics instead of benzene which EPA believes could
enable States to specify benzene controls. However, State benzene controls
are already preempted by RFG and antidumping regulations. Section
211(c)(4) of the CAA prohibits States from imposing any control "respecting"
any fuel characteristic or component regulated by EPA. "Respecting"
generally means "related to," and certainly a State benzene control is related
to toxics control, particularly because benzene comprises 70% of toxics.
Letters:
American Petroleum Institute (IV-D-21) p. 3-5
American Petroleum Institute (IV-F-1) p. 36-37
ExxonMobil (IV-D-16) p. 2-4
Marathon Ashland Petroleum, LLC (IV-D-15) p. 6
National Petrochemical and Refiners Association (IV-D-33) p. 10-12
Response to issue 6.3(A)(2): Commenters argue that State controls on benzene are
controls "respecting" toxics performance and are therefore preempted under 211(c)(4)(A)
even in CG areas. Resolution of this issue would depend on how narrowly or broadly a court
decides to interpret the scope of preemption in 211 (c)(4)(A). Because EPA is not changing
the scope of preemption as it existed before promulgation of this rule, EPA does not believe it
is necessary to resolve commenters' argument at this time.
(3) EPA has clearly stated in prior rules such as the RFG and anti-dumping rules,
that federal rules should preempt State action to avoid an inefficient
patchwork of potentially conflicting regulations. EPA should recommit to strict
adherence with the CAA's preemption rule.
Letters:
American Petroleum Institute (IV-D-21) p. 5
Chevron (IV-D-34) p. 2
National Petrochemical and Refiners Association (IV-D-33) p. 10-12
Sunoco, Inc. (IV-D-23) p. 2
Response to issue 6.3(A)(3): We continue to believe that the characteristics and
components subject to controls under our RFG regulations preempt non-identical State
controls respecting those characteristics or components in RFG areas. Likewise, our anti-
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Response to Comments
December 20, 2000
Page 56
dumping controls preempt State controls in CG areas respecting those characteristics or
components. Today's rulemaking does not alter the preemptive effect of our RFG and anti-
dumping rules, but instead mirrors these controls.
(B) States should be allowed to regulate MSATs to protect their citizens from
significant health risks.
(1) EPA has failed to fulfill its mandate to protect the public from risks posed by
MSATs, and at the same time preempts States from taking action to protect
their citizens. In the absence of an effective national MSAT program, EPA
should set a framework that avoids State preemption and allows States to
address these risks.
Letters:
Commonwealth of MA DEP (IV-D-13) p. 1
Consumer Policy Institute (IV-D-8) p. 3-4
NESCAUM (IV-D-10) p. cvr. Itr.
STAPPA, ALAPCO (IV-D-22) p. 3-4
STAPPA, ALAPCO (IV-F-1) p. 46-48
Response to issue 6.3(B)(1): Today's rule adopts toxics performance standards that apply
to the same characteristics and components as the existing RFG total toxics performance
standard and CG exhaust toxics performance standard. As a result, today's standards do not
change the scope of preemption that existed prior to promulgation of this rule. As discussed
in the preamble to both the final and proposed rules, we believe a toxics performance
standard may not cause States to be prohibited under section 211(c)(4)(A) from setting their
own fuel benzene standard. At the same time, as discussed in the response to 6.3(A)(2),
there is an argument that State controls on benzene are preempted as controls "respecting"
toxics performance even in CG areas where there is no benzene standard. Because EPA is
not changing the scope of preemption as it existed before promulgation of this rule, EPA
does not believe it is necessary to resolve commenters' argument at this time.
(2) States should have the option to develop programs tailored to address
problems specific to that State.
Letters:
Bluewater Network (IV-D-29) p. 2
Commonwealth of MA DEP (IV-D-13) p. 2
Puget Sound Clean Air Agency (IV-D-27) p. 1
STAPPA, ALAPCO (IV-D-22) p. 3-4
Response to issue 6.3(B)(2): Today's proposal does not change the scope of preemption
and preserves whatever authority States currently have to address local problems.
6.4: California Exemption
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(A) Commenter concurs that California gasoline should be excluded from these
requirements.
(1) Commenter provides no further supporting information or detailed analysis.
Letters:
ExxonMobil (IV-D-16)p. 6
Response to 6.4(A)(1): See response below 6.4(B)(1)
(2) California's program for controlling gasoline benzene emissions is already
more stringent than the federal RFG program and will become more stringent
when CARB Phase 3 gasoline is introduced.
Letters:
American Petroleum Institute (IV-D-21) p. 9
British Petroleum (IV-D-19) p. 2-3
California Air Resources Board (IV-D-1) p. 1-2
Chevron (IV-D-34) p. 1
Kern Oil & Refining, Inc. (IV-D-31) p. 5
National Petrochemical and Refiners Association (IV-D-33) p. 9
Tosco (IV-D-41)p. 4
Western Independent Refiners Association (IV-D-40) p. 3
Response to 6.4(A)(2): See response below 6.4(B)(1)
(3) California's gasoline should be exempted so long as the California standard is
more stringent.
Letters:
Bluewater Network (IV-D-29) p. 2
Response to 6.4(A)(3): See response below 6.4(B)(1)
(4) Commenter also agrees that the production of non-California RFG or CG by a
California refinery should not be excluded from this rule. (But see Issue 6.11.6
for flexibility related to this non-CA production.)
Letters:
Tosco (IV-D-41)p. 4
Response to 6.4(A)(4): See response below6.4(B)(1)
(B) Commenter finds EPA's rationale for the California exemption to be lacking
continuity with other portions of the proposal.
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(1) EPA has shown that future California standards may be less stringent than
those proposed by EPA for RFG. Under the current proposal, some non-
California refiners will be held to benzene content levels far lower than those
of California refiners.
Letters:
Phillips Petroleum Company (IV-D-20) p. 5
Response to 6.4(A)(1), 6.4(A)(2), 6.4(A)(3), 6.4(A)(4), 6.4(B)(1): In the NPRM, we
proposed to exempt California gasoline from the proposed fuel benzene standard because it
would be highly unlikely that California gasoline benzene levels would backslide, or increase,
relative to the benzene levels of the proposed baseline period. We indicated that current
California benzene levels and the upcoming more stringent California benzene requirements
(Phase 3) would preclude benzene increases. As can be seen from the comments above,
most commenters on this issue agreed with this approach, and most of those commenters
agreed because of the increased stringency of the upcoming California Phase 3 gasoline
rules. We believe the support of these commenters would extend to the final form of the rule,
a toxics performance requirement.
The commenter at 6.4(B) questions EPA's rationale for exempting California gasoline
because some non-California refineries (producing presumably non-California gasoline)
would be held to a more strict standard (under the proposal, benzene levels lower than the
average required of California refiners under California's rules). Under the proposed rule, it
is possible that a producer of gasoline would have baseline period benzene levels of less
than 0.7 percent by volume (the Phase 2 California average gasoline standard). However,
both the proposed rule and today's final rule were anti-backsliding requirements; that is, the
standard was relative to what each individual refinery produced during the baseline period.
We are not providing an exemption to producers of California gasoline because of the
magnitude of their average fuel benzene (in the case of the proposal) or their average toxics
emissions performance (for our final rule). Rather, we are exempting California gasoline
because we believe that the combination of the current California gasoline regulations and
the upcoming more stringent California gasoline regulations effectively limit backsliding of
California gasoline by producers of California gasoline.
6.5: Form of Standard
6.5.1: Benzene Content Standard
(A) Commenter supports a standard for gasoline benzene content over one based
on total toxics emissions.
(1) Because benzene accounts for about 67% of the total toxic mass emissions
from mobile sources, benzene is a reasonable surrogate for other toxics. If a
toxics standard were promulgated, refiners would likely focus on current
benzene controls to reduce total toxics. Some commenters noted that a
benzene content standard provided greater flexibility and would be simpler to
administer than a toxics performance standard. One commenter also argued
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Response to Comments
December 20, 2000
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that the simplicity of the benzene content standard made the 2002 start date
manageable, which may not be the case for a toxics performance standard.
Letters:
American Petroleum Institute (IV-D-21) p. 10
British Petroleum (IV-D-18)p. 1
Marathon Ashland Petroleum, LLC (IV-D-14) p. 7
Phillips Petroleum Company (IV-D-20) p. 4
Response to 6.5.1(A)(1): We agree that benzene emissions account for a majority of total
toxics emissions from gasoline-powered light-duty cars and trucks for those toxic compounds
included in the Complex Model. This fact is one reason that we proposed controls on
gasoline benzene content. See also Table IV.A-1 in the Technical Support Document.
However, as stated in the NPRM, an anti-backsliding program that focuses on gasoline
benzene content ignores emissions of other toxic compounds which could theoretically
increase. In addition, as described more fully in our responses to Issue 6.13, a gasoline
benzene content standard could actually result in non-negligible costs.
A gasoline benzene content standard does not offer refiners an advantage over a toxic
emissions performance requirement. As the commenter correctly points out, refiners may
very well focus on control of fuel benzene content even under a toxic performance
requirement. However, under a toxic performance requirement refiners would also have the
flexibility to make other changes to their fuel in order to meet the standard, providing
opportunities for doing that which benefits each individual refinery the most.
We do not believe that a benzene content standard would be simpler to administer than a
toxics performance requirement. Since CG currently has no controls for fuel benzene
content, a benzene content standard for CG would actually represent a new compliance
requirement for refiners, complicating the set of fuel standards that they must already comply
with for gasoline. A toxics performance requirement, on the other hand, would simply replace
the existing requirements forCG and RFC with a new numerical standard. See also our
response to issue 6.5.3(A)(1). We also believe that the 2002 start date for our anti-
backsliding program is no less manageable with a toxics performance requirements than with
a benzene content standard, since refiners will have substantial control over toxics emissions
through fuel benzene controls and can choose to focus on the latter if doing so is most
beneficial for them. See also our responses under Issue 6.7.
(2) Control on benzene versus toxics, without new downstream standards, would
also be more appropriate within the current regulatory environment. As EPA
notes, benzene is the primary element of the toxics control strategy in
meeting RFG and anti-dumping requirements.
Letters:
National Petrochemical and Refiners Association (IV-D-33) p. 4-5
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Response to 6.5.1(A)(2): Designing our anti-backsliding program to be consistent in form
with the currently regulatory requirements does offer some advantages in terms of testing
and reporting requirements as well as compliance familiarity. However, the toxic
performance requirement we are finalizing today is actually a more direct extension of current
regulatory requirements than the benzene content standard we proposed in the NPRM.
Although fuel benzene content is controlled directly under the RFG program, it is not directly
controlled under the anti-dumping program applicable to conventional gasoline (CG). In
contrast, we have designed our anti-backsliding toxic performance requirement to be
consistent with the total toxics standard for RFG, measured in percent from the statutory
baseline, and the exhaust toxics standard forCG, measured in mg/mi.
6.5.2: Toxics performance requirement
(A) Supports a toxics performance standard instead of a gasoline benzene content
standard.
(1) An exhaust toxics standard would allow a refiner more flexibility in meeting
the compliance targets while meeting EPA's objectives. Because a reduction
in gasoline sulfur results in a decrease in toxics, a toxics standard would
eliminate the problems associated with an increase in benzene content
resulting from the Tier 2 and diesel fuel sulfur standards.
Letters:
Placid Refining Company, LLC (IV-D-1) p. 3
Response to 6.5.2(A)(1): We agree with this comment. According to the refinery modeling
discussed in Chapter? of our Technical Support Document, fuel benzene content would in
fact increase concurrent with the low sulfur standard of 30 ppm which will begin phasing-in in
2004. Since a toxics performance requirement allows increases in toxics emissions due to
increasing fuel benzene content to be offset with decreases in toxic emissions due to lower
sulfur, refiners will in fact reap the benefits of low sulfur when complying with the toxics
performance requirement we are finalizing today.
(B) Supports continued exploration of a toxics compliance formula.
(1) In theory, this approach limits overall pollution while maintaining refiner
flexibility, but this theory has not been analyzed thoroughly. To date, it
appears EPA's moves on sulfur and benzene actually undermine the refiner's
ability to adjust various components in order to manufacture a gasoline that
meets EPA's requirements.
Letters:
Gary Williams Energy Corporation (IV-D-2) p. 4
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Response to 6.5.2(B)(1): We agree that a toxics performance requirement places more
direct controls on toxics emissions than a fuel benzene content standard while
simultaneously providing refiners with the flexibility to comply with our anti-backsliding
requirement in the way that most benefits their economic situation. This is one reason why
we have decided to finalize a toxic performance requirement instead of the benzene content
standard we proposed. In so doing, the toxics requirements already in place in the RFG and
anti-dumping programs will effectively become more stringent (on average across the U.S.)
and there will be no new controls on fuel benzene content in this rulemaking that might limit a
refiner's flexibility to meet the toxics requirements for RFG and CG.
We believe that the refinery modeling described in Chapter? of the Technical Support
Document sufficiently analyzed the impacts of a toxics performance requirement on average
refiner flexibility. That modeling allowed us to conclude that a toxics performance
requirement would be more appropriate for our anti-backsliding program than the proposed
benzene content standard, due in part to the potentially non-negligible costs associated with
a benzene content standard. The modeling also indicated that toxics emissions would likely
decrease after the low sulfur gasoline standard of 30 ppm goes into effect, suggesting that
the 30 ppm sulfur standard will not impose an additional burden on refiners in terms of
compliance with the RFG and anti-dumping toxics requirements. Note that the low sulfur
standard of 30 ppm was implemented only to enable the next generation of light-duty
aftertreatment to operate effectively.
(C) IF EPA promulgates a TES in the future, then EPA must at that time retire the
BCS.
(1) Commenter provides no further supporting information or detailed analysis.
Letters:
Phillips Petroleum Company (IV-D-20) p. 4-5
Response to 6.5.2(C)(1): The comment implies that the combination of a toxics
performance requirement and a benzene content standard at any point in the future would be
redundant and would represent an unfounded burden upon refiners. Since we are not
finalizing the benzene content standard, there will be no need to retire it in the future should
we determine, as part of our Technical Analysis Plan, that additional controls on toxics are
warranted sometime after 2003.
(D) Supports a regional approach to toxics, rather than refinery-by-refinery for
RFG.
(1) If EPA decides to use a baseline toxics performance standard approach, EPA
should establish a regional toxics performance standard. The regional
standard would be translated appropriately back to the refinery gate for
refineries supplying that region. This approach, in conjunction with a regional
refiner trading program, would minimize the overall cost of the program,
facilitate its earlier implementation, and have less adverse impact on gasoline
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December 20, 2000
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supply. Another commenter recommended that this approach also should be
coupled with no further controls on CG and the elimination of the oxygenation
mandate.
Letters:
American Petroleum Institute (IV-D-21) p. 7
ExxonMobil (IV-D-15)p. 8
(2) Commenter provided no further supporting information or detailed analysis.
Letters:
Marathon Ashland Petroleum, LLC (IV-D-14) p. 5
Response to 6.5.2(D)(1) and (D)(2): There are several ways in which we could have set and
applied the baseline for our anti-backsliding program, all of which would in theory maintain
the same toxics performance levels for the U.S. as a whole. These include a single
nationwide baseline applicable to all refineries, regional baselines applicable to all refineries
within each region, and refinery-by-refinery baseline. In the absence of credit trading,
however, a nationwide or regional approach would mean that some refineries would be over
the applicable toxics baseline and some would be under. Those that were over the baseline
would be forced to change their operations or install new equipment in order to comply with
the nationwide or regional baseline. As a result the national average toxics emissions would
fall below the level strictly required by an anti-backsliding program, with some refiners
incurring non-negligible costs in the process. We do not consider these costs and the
associated emission reductions to be warranted in the short term.
Inclusion of credit trading under a nationwide or regional program might minimize or even
eliminate the additional toxics emission reductions that would otherwise result. However, the
costs to many refiners could continue to be significant even though toxics emissions are no
better than they were in 1998 - 2000 for the nation as a whole. Under credit trading, refiners
that overcomply with the applicable toxics performance requirement would sell credits to
those refiners who undercomply. According to economic theory, refiners that undercomply
would be willing to pay an amount for those credits which is equal to, but no greater than, the
cost of meeting the toxics performance requirement on their own. The result is that the
economic burden on many refiners who undercomply with a nationwide or regional standard
could be the same whether or not credit trading is allowed. For further discussion of credit
trading, see our responses under Issue 6.11.3.
As part of its justification for a regional program, one refiner commented that the significant
overcompliance in toxics emissions exhibited in 1998 - 2000 is predominately due to those
refineries that overcomplied on fuel benzene content. We agree that the majority of toxics
overcompliance is due to fuel benzene content overcompliance. However, it would appear
that a regional program, with or without credit trading, would actually increase costs because
the economic incentive to reduce fuel benzene content would continue to be refinery-specific.
Refineries for which benzene reduction was not profitable in 1998 - 2000 would likely
undercomply with a regional standard in the future, and so would need to either buy credits or
install new equipment. Thus it appears that a refinery-by-refinery set of toxic performance
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December 20, 2000
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baselines is the most appropriate means for minimizing costs while simultaneously
preserving the overcompliance toxics benefits exhibited in 1998 - 2000.
6.5.3: Benzene Emissions Standard
(A) Opposes benzene emissions standard.
(1) A BES offers no simplicity over a toxics emissions performance standard and
is not a meaningful alternative at this time.
Letters:
ExxonMobil (IV-D-15)p. 8
Phillips Petroleum Company (IV-D-20) p. 5
Response to 6.5.3(A)(1): Both the benzene emissions standard on which we took comment
and the toxic performance requirement we are finalizing today are functions of several fuel
properties, most notably fuel benzene content. As a result, the limitations that they impose
on the formulation of gasoline are largely overlapping. Therefore, from the perspective of a
refiner complying with our anti-backsliding program, a benzene emissions standard would be
no simpler to administer or manage than a toxics performance requirement.
(B) Supports a benzene emissions standard over a benzene content standard.
(1) Benzene in fuel is an imperfect determinant of vehicle benzene emissions
because the benzene present in vehicle fuels is largely combusted. Fuel
sulfur levels and Reid Vapor Pressure can also affect vehicle benzene
emissions. A successful program to limit ambient benzene concentrations
will have to address total vehicle benzene emissions.
Letters:
U.S. Department of Energy (IV-G-2) p. 1-2
Response to 6.5.3(B)(1): By far the fuel property that has the largest impact on benzene
emissions is fuel benzene content. According to the Complex Model, our current best
indicator of the effects of fuel properties on toxics emissions, the effect of fuel benzene
content on benzene emissions is several times greater than the fuel property with the next
highest impact, aromatics. For this reason it was appropriate for us to consider fuel benzene
content in the NPRM as a means for controlling benzene emissions. However, the
commenter is correct in that other fuel properties can have significant effects on toxics
emissions, and that the most direct and certain means of limiting ambient concentrations of
toxic pollutants is to place direct controls on tailpipe emissions. This is one reason that we
have decided to finalize a toxics performance requirement instead of a benzene content
standard.
As described in the Technical Support Document, we do not believe that a focus only on
benzene emissions provides the greatest degree of protection against backsliding with
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Response to Comments
December 20, 2000
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respect to 1998 - 2000 toxic emission levels. It is true that by setting controls on benzene
emissions one has the greatest possible degree of control over ambient benzene
concentrations. However in this case emissions of other toxic compounds could theoretially
increase without any limitations other than the current RFG and anti-dumping standards with
which refiners are significantly overcomplying. We have therefore concluded that a toxics
performance requirement is a better means for maintaining the overcompliance exhibited in
1998 - 2000 than a simple benzene emissions standard.
6.5.4: National Average-Based vs. Refinery-Based Standards
(A) Commenter expressed support for a nationwide standard for CG and RFG.
(1) A nationwide standard would prevent the cleaner refinery from being
penalized for early reductions and would encourage future voluntary
reductions. The limit could be set at 1998-99 industry average levels. One
commenter added that overall benzene levels would not suffer because
refiners over the average would have to reduce their levels.
Letters:
Amerada Hess Corporation (IV-D-14) p. 3, 7-8
Citgo Corporation (IV-D-5) p. 1, 3
Response to issue 6.5.4(A)(1): While EPA may consider such a program in the future, the
current rule is designed to avoid increases in total toxic emissions from gasoline while
imposing the least cost on the refining industry. The approach ensures that the control is
achievable in the near term. EPA's modeling predicts that even after RFG II and Tier 2 low
sulfur gasoline, the typical refinery in PADDs I and III will not incur more than negligible costs.
The regulations also contain provisions for baseline adjustments and temporary relief in the
event of unforeseen circumstances.
EPA does not believe the refinery-specific anti-backsliding approach unfairly
penalizes early reductions. Some refineries have found it economically advantageous to
overcomply with the toxics performance standard for RFG and, to a lesser extent, CG. In
many cases, the financial incentive of overcomply is due to proximity to a market for chemical
benzene. Since each refinery is unique in terms of construction and location, any single
standard will create varying degrees of challenges. In this case, those refineries that have
taken advantage of a local benzene market will find themselves without the significant
cushion of overcompliance that they had previously enjoyed. If EPA establishes a nation-
wide standard, those refineries not located near a petrochemical market will be "penalized" in
a different way.
(2) A nationwide baseline set at a level just higher than the 1998-99 industry
average baseline would enable refiners to remain in compliance despite
uncertainties in equipment operation, crude supply, market requirements,
weather, and other variables.
Letters:
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Response to Comments
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Koch Petroleum Group (IV-D-36) p. 1
Response to issue 6.5.4(A)(2): The Agency has established a compliance margin for the
final rule for RFG and CG and expanded the baseline period from two year to three years.
These changes should allow refineries to remain in compliance despite the typically
fluctuations in equipment operation, crude supply, market requirements, weather, and other
variables.
(3) Commenter noted this preference especially for CG.
Letters:
Phillips Petroleum Company (IV-D-20) p. 2-3
Response to issue 6.5.4(A)(3): See response to issue 6.5.4 (A)(2).
(B) Supports a refinery-based program.
(1) Refinery-based anti-backsliding averages are important for consistency,
simplicity, flexibility, and quicker implementation. More complicated programs
would necessitate implementation delays. The commenter notes that the
current RFG toxic and conventional anti-dumping exhaust toxic averaging
control programs are refinery-based and do not impose control requirements
on downstream entities.
Letters:
National Petrochemical and Refiners Association (IV-D-33) p. 4-5
Response to issue 6.5.4(B)(1): The Agency agrees with the comment.
6.5.5: Alternative Standards
(A) EPA should establish a minimum benzene level or floor.
(1) Those refiners which extract almost all the benzene from their reformate have
little flexibility to control benzene to very low baseline levels. Any unexpected
spike in benzene levels would make it difficult to compensate with future
operations because the refinery's normal operation is maximizing benzene
extraction. Establishing a floor would allow EPA to maintain the basic
structure of the proposal while not adversely affecting the cleanest refiners.
This approach also could provide incentives to produce additional RFG
volumes. Also, the use of a floor should not affect future benzene levels
because refiners that invested in extraction facilities will not intentionally
increase benzene levels.
Letters:
Citgo Corporation (IV-D-5) p. 1-4
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December 20, 2000
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National Petrochemical and Refiners Association (IV-D-33) p. 6
Response to issue 6.5.5(A)(1): EPA has made significant changes from proposal to final in
order to create greater flexibility for refineries. Changes which have enhanced flexibility
include: increasing the baseline period from two to three years; shifting to a toxics
performance requirement; adding a compliance margin; and allowing for credit and deficit
carryforward. Given these substantial flexibilities provided in the final rule, the Agency does
not agree with the commenter that establishing a minimum floor for those refineries that have
established the lowest baselines is necessary.
(2) Commenters recommended that a reasonable floor would be a minimum of
0.7 vol.% for CG and either 0.5 or 0.65 vol.% for RFC.
Letters:
Citgo Corporation (IV-D-5) p. 1-4
National Petrochemical and Refiners Association (IV-D-33) p. 6
Response to issue 6.5.5(A)(2): See response to issue 6.5.5(A)(1).
(B) Refiners that produced benzene for the chemicals market during the baseline
period should be allowed to increase their baselines to an established
minimum.
(1) Doing so would avoid the economic hardship which would accompany a
reduction in the benzene chemicals market.
Letters:
Tosco (IV-D-41)p. 3
Response to issue 6.5.5(B)(1): See response to comment 6.5.5(A)(1).
(C) EPA should establish a standard that will provide maximum public health and
environmental protection and full flexibility for state and local agencies that
wish to go beyond the federal program.
(1) Whether this is accomplished through a toxics performance standard, another
of the identified options, or an approach that was not presented in the EPA
proposal, EPA should make health and environmental protection and
state/local flexibility very high priorities in developing the rule.
Letters:
STAPPA, ALAPCO (IV-D-22) p. 4
Response to issue 6.5.5(C)(1): The final rule was designed to capture the greatest amount
of overcompliance while imposing less costs on industry than the proposed benzene content
standard. The final form of the standard does not alter the legal status quo in terms of a
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Response to Comments
December 20, 2000
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state's ability to establish more stringent controls on components of conventional gasoline
that produce toxic emissions.
6.6: Ability to Meet Baseline Levels at No Cost
(A) One reason the proposal is too stringent and will impose costs on refiners is
because refiners will need to maintain a compliance cushion so that
unanticipated exceedances do not jeopardize compliance.
(1) Reducing the compliance cap would force refiners to further reduce the
benzene content to maintain a "compliance comfort zone." One commenter
suggests that, at a minimum, EPA should consider a 20-25% compliance
cushion for those refiners with very low baselines. Another commenter
suggests a 10% compliance margin. Another commenter stated that, based
on its operating experience, annual benzene levels can vary by 10-25%. So,
EPA should consider a compliance margin in that range, with a maximum
limit for RFG. The commenter argued that this approach would provide
necessary flexibility to refiners while minimizing any air quality impact.
Letters:
American Petroleum Institute (IV-D-21) p. 2
American Petroleum Institute (IV-F-1) p. 35
Citgo Corporation (IV-D-5) p. 3
ExxonMobil (IV-D-16) p. 2, 5
Gary Williams Energy Corporation (IV-D-3) p. 1-2
Koch Petroleum Group (IV-D-36) p. 1
Marathon Ashland Petroleum, LLC (IV-D-15) p. 4-5
Murphy Oil Corporation (IV-D-17) p. 4
Phillips Petroleum Company (IV-D-20) p. 3, A-2, A-3
Sunoco, Inc. (IV-D-23) p. 2
Response to 6.6(A)(1): We agree that, in the process of complying with a given standard,
refiners will generally aim for some level below that standard to ensure compliance. In the
context of this final rulemaking, we recognize that requiring refineries to be no higher than
their average 1998 - 2000 production may actually cause refineries to reduce the toxic
performance of their gasoline below the applicable standard resulting in costs to the industry
that are not reasonable in the short term. It is for this reason that we have decided to include
a compliance margin in the toxics performance requirement we establish for every refinery.
To determine the average compliance margin necessary to ensure that refineries will not
need to overcomply with the new anti-backsliding requirement, we analyzed batch data from
a random selection of refineries. The analysis allowed us calculate the magnitude of the
compliance margin to apply to each refinery's anti-backsliding baseline that would forestall a
refinery's need to reduce toxic emissions further than required under our anti-backsliding
program. A detailed discussion of the calculation of compliance margins is given in Chapter
7 of the Technical Support Document.
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Our analysis of toxic performances indicates that year-to-year variations in the national
average are very small. As a result, we have not incorporated the effects of year-to-year
variations in the determination of the compliance margin. However, despite the fact that the
national average toxic performance appears quite stable from year to year, variations can be
more substantial for individual refineries. This is one reason that we have expanded our
baseline period from two to three years. The three year baseline period of 1998 - 2000
should reduce the impacts of any year-to-year variations for individual refineries.
(2) Small refiners will have to adopt measures to over-comply in order to ensure
compliance consistently and risk free with the new standards for 2002.
Otherwise, they may not be able to avoid the significant penalties associated
with a violation.
Letters:
U.S. Small Business Administration (IV-D-26) p. 2
Response to 6.6(A)(2): There is no reason to think that small refiners need a larger
compliance margin than large refiners, since the distribution of toxic performance levels in a
given year is not dependent upon the size of the refinery. As a result, we believe that the
compliance margin that we have generated and will apply to the toxic performance
requirement for every refinery will be sufficient for small refiners as well as large.
(3) Refiners must provide for a level of safety margin in meeting any regulatory
requirement. Some allowance must be provided first for day-to-day test
variability and reproducibility. Fora longer-term program based on an annual
or longer compliance period, over-compliance must be provided throughout a
major portion of the period to be sure that the average can be met in the
event of unforseen market, operating or other situations occurring at the end
of the compliance period. The appropriate level of compliance margin will
depend on a number of factors, i.e., testing reproducibility, benzene extraction
reliability, market trends, etc., but in no event should exceed 0.95 vol.%. The
commenter argues that the failure to provide a compliance cushion could lead
to unintended consequences, such as increased use of MTBE or reduced
production of low baseline RFG with higher baseline CG.
Letters:
National Petrochemical and Refiners Association (IV-D-33) p. 5-6
Response to 6.6(A)(3): We agree that a compliance margin is appropriate for the toxics
performance requirement we are finalizing today. See response to issue 6.6(A)(1).
However, we do not believe that our annual averaging program is highly sensitive to day-to-
day test variability. Although test variability can be quite important when the standard in
question is established on a per-gallon basis, annual averaging has the benefit of
substantially muting the impacts of test variability on compliance; over many batches, test
variability is just as likely to produce results that are too low as results that are too high. Still,
test measurement variability combines with blending tolerances, contamination, changes in
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December 20, 2000
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crude composition, and other sources of variability in such a way that refiners cannot
maintain perfect control over the toxic performance levels of every one of their batches all the
time. The compliance margin that we are including in ouranti-backsliding program is
intended to account for the combined effect of all this variability, and will also protect against
potential increases in the use of oxygenates or pressure to change relative production
volumes of RFG and CG. It should be noted that the deficit carryover provision in our final
rulemaking will also provide refiners the flexibility they need to comply with their baseline at
negligible cost, even in those instances where unforseen market, operating or other
situations occur at the end of the compliance period.
(B) Another reason that the proposal is too stringent is because refinery
compliance is dependent in large part on uncontrollable operating or market
circumstances that may change and interfere with refiners' ability to maintain
1998-99 baseline levels without additional controls.
(1) Overcompliance in 1998-99 is partially explained by unusual market
conditions that resulted in abnormally low benzene levels. One refiner
provides data to show that levels were abnormally low that year as part of an
operational strategy to manufacture high levels of premium gasoline.
Because of these types of situations, refiners will not necessarily be able to
maintain the baseline levels if operating circumstances, raw material supply,
or product demands fluctuate.
Letters:
Gary Williams Energy Corporation (IV-D-3) p. 2
Silver Eagle Refining, Inc. (IV-D-18) p. 1
Response to 6.6(B)(1): Since we have switched to a toxics performance requirement for this
final rule, refiners will have more flexibility to address fluctuations in the benzene content of
fuel. But, as discussed in Chapter 7.A.3 of the Technical Support Document, we find no
reason to expect the market for benzene to change. In fact, future forecasts suggest that
benzene consumption in the U.S. will increase over the next several years.
Nonetheless, we are allowing a refiner to petition EPA fora permanent adjustment of
its toxics baseline. The refiner must demonstrate how circumstances during 1998-2000
materially affected the baseline toxics value determination. Because we believe that the
changes made to this final rule - deficit and credit carryforward, compliance margin, inclusion
of a third baseline year- sufficiently consider and minimize the potential compliance burden
for those refiners that experience unusual refinery operational issues, we expect that the
number of baseline adjustments will be small.
(2) Refiners with very low benzene levels during the baseline period are now
faced with no operating flexibility under the proposed rule. One commenter
noted that refiners with significant benzene extraction (because of favorable
market conditions) can only achieve further reductions from reformate and
catalytic cracker streams, the science of which is not well understood.
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Furthermore, one commenter noted that if the benzene market shrinks,
refiners that significantly overcomplied with the benzene standards due to
strong benzene extraction and sales may not be able to meet the very low
benzene baseline in the future. One commenter provided detailed summary
of operations at two refineries to document these concerns.
Letters:
American Petroleum Institute (IV-D-21) p. 3
Citgo Corporation (IV-D-5) p. 2-3
ExxonMobil (IV-D-16)p. 5
Sunoco, Inc. (IV-D-23) p. 1
Tosco (IV-D-41)p. 3
U.S. Department of Energy (IV-G-2) p. 2-3
Response to 6.6(B)(2): Since we have switched to a toxics performance requirement for this
final rule, refiners will have more flexibility to address fluctuations in the benzene content of
the fuel. With regard to refineries that achieved low toxics emissions levels due to benzene
extraction, we do not believe there is any basis for expecting the benzene market to change
in such a way that warrants setting a minimum toxics performance level. In fact, projections
of the benzene market suggest continued growth (see TSD, Chapter 7.A.3). Nevertheless,
as we explain in the response to 6.6(B)(1), we are allowing a refiner to petition EPA for a
permanent adjustment of its toxics baseline.
In addition, because we are promulgating a toxics performance requirement, which is
a function of all of the fuel parameters evaluated by the Complex Model, and not a single fuel
parameter requirement (like a fuel benzene content requirement), it is not clear how we
would set such a minimum toxics emission level to account for changes in the petrochemical
market. We would have to consider each of the eight Complex Model fuel parameters
separately, and this would be complicated by the fact that the fuel parameters' effects on
toxics emissions vary considerably. Nonetheless, we can address the issue raised by the
commenter since it is relevant, in a broad sense, to the baseline setting process.
We do realize that even for a toxics anti-backsliding program, unusual situations may
happen which can significantly affect refinery operations, and which could cause the refinery
to be out of compliance with its requirement. To this end, we proposed and are finalizing a
one year deficit carryforward. This will allow a refinery to exceed its anti-backsliding toxics
requirement for one year. In the next year, it must make up the deficit as well as be in
compliance for that year. Additionally, though not proposed, we are also including a one year
credit carryforward. Under this provision, a refinery producing gasoline that is cleaner than
required by its toxics anti-backsliding requirement may use the overcompliance to cover any
deficit in the following year.
(3) To overcome variations in observations of benzene, refiners might have to
change their crude oil selection decisions, sell components, or change
processing, all of which would have large financial impact. The proposed rule
does not consider these variations and the costs refiners will incur to
overcome the variations to meet a historic benzene level.
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Letters:
Sunoco, Inc. (IV-D-23) p. 2
Response to 6.6(B)(3): In today's final rule we have switched to a toxics performance
requirement which provides refineries with additional flexibility to account for variation in the
benzene content of fuel. Moreover, in determining the compliance margin of 2.5 mg/mi for
CG and 0.7 percent for RFG, we took batch variation into account by analyzing several batch
reports from several refiners which varied in terms of annual gasoline volume, geographic
location, and whether it produced CG only or CG and RFG. Finally, our analysis of refinery
reports submitted for the years 1997 and 1999 showed no significant difference in benzene
levels between these years, or for either type of gasoline, RFG or conventional. In any event,
we have added the flexibility of deficit/credit carryforward to allow refiners to address
unexpected changes at the end of the compliance period.
(4) The demand for gasoline is estimated to grow by at least one percent over
the next twenty years. To meet this increased demand, refiners will likely
have to increase reformate throughput, which would reduce octane. To
improve octane, refiners likely will need to increase the benzene content of
gasoline.
Letters:
U.S. Small Business Administration (IV-D-26) p. 3
U.S. Department of Energy (IV-G-2) p. att
Response to 6.6(B)(4): If a refinery were to increase reformate throughput in order to help
meet a demand for gasoline production, we agree that the octane of the reformate product
would be decreased. However, we also believe the benzene produced in the reformate
would decrease. In general, as throughput in the reformate is increased, the benzene formed
in the reformate decreases. Since reformate is the gasoline refinery stream that contains the
most benzene, if reformate throughput is increased to meet a demand for more gasoline
production at a refinery, we do not believe that the benzene content of gasoline would
necessarily increase. Furthermore, since we have switched to a toxics performance
requirement for this final rule, refiners will have more flexibility to address fluctuations in the
benzene content of the fuel. Finally, because we have decided not to control incremental
volumes in today's final rule, refinery concerns regarding increased gasoline production due
to increased demand in future years is no longer a concern.
(5) It is highly unlikely that, given the normal variability in refining and product
markets, refining operations or all product quantities will remain stable over a
period of years. As an example, one commenter provides a list of changes
that have occurred recently in the industry. Another commenter noted that
increasing RFG production or reduced volatility also could lead to the need to
replace octane and potentially increase benzene levels.
Letters:
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Response to Comments
December 20, 2000
Page 72
American Petroleum Institute (IV-D-21) p. 2-3
American Petroleum Institute (IV-F-1) p. 35
Marathon Ashland Petroleum, LLC (IV-D-15) p. 4-5
National Petrochemical and Refiners Association (IV-D-33) p. 3
U.S. Small Business Administration (IV-D-26) p. 3
Response to 6.6(B)(5): Today's final rule accounts for variability in a number of ways. The
rule finalizes toxics emission performance requirements for gasoline that require, beginning
with calendar year 2002, that a refinery's or importer's annual average total toxics emission
performance for its RFG not exceed its 1998-2000 baseline RFG total toxics emissions
performance. Likewise for CG, this rule will require that the exhaust toxics emissions
performance of a refinery's or importer's CG not exceed its 1998-2000 baseline exhaust
toxics emissions performance for CG. This baseline period is one year longer than proposed
and provides baseline values that are truer to a refiner's normal operating mode. By
including the one additional year (2000) into the baseline, we are including the beginning of
the Phase II RFG program into the baseline which improves the baseline because it adds
data to the baseline determination which is most recently available. Including 2000 also
helps to further offset the effects of unit turnarounds by extending the baseline to a 3-year
average . We believe that the 1998-2000 baseline sufficiently accounts for changes in
refinery operations or product. Furthermore, since we have switched to a toxics performance
requirement for this final rule, refiners will have more flexibility to address fluctuations in the
benzene content of the fuel.
We do realize that even for a toxics anti-backsliding program, unusual situations may
happen which can significantly affect refinery operations, and which could cause the refinery
to be out of compliance with its requirement. To this end, we proposed and are finalizing a
one-year deficit carryforward. This will allow a refinery to exceed its anti-backsliding toxics
requirement for one year. In the next year, it must make up the deficit as well as be in
compliance for that year. Additionally, though not proposed, we are also including a one-year
credit carryforward. Under this provision, a refinery producing gasoline that is cleaner than
required by its toxics anti-backsliding requirement may use the overcompliance to cover any
deficit in the following year.
Finally, we are providing an additional flexibility in the form of a baseline adjustment
for those refiners that can demonstrate how circumstances during 1998-2000 materially
affected the baseline toxics value determination. Thus we have provided refiners with
compliance flexibility in several forms.
We believe the changes described above will adequately address commenters'
concerns regarding variability. Our analysis projects that even with future controls and
increases in production the cost of meeting a toxics performance requirement will be
negligible. For a more detailed discussion of costs see Chapter 7.C of the Technical Support
Document, and fora more detailed discussion on increases in production (i.e., incremental
volumes) see Chapter 7.D.
(C) The proposed rule is unfair because it penalizes refiners that over-complied.
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Response to Comments
December 20, 2000
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(1) The proposal penalizes refiners that have overcomplied by forcing them to
maintain that level of performance. If cleaner refineries have a lower limit
than dirtier ones, the marketplace will penalize them for being cleaner.
Overcompliance should be rewarded, not punished. Some of these
commenters argued that could discourage sources from voluntarily going
beyond compliance under other programs for fear that EPA would use the
voluntary efforts to justify tighter standards.
Letters:
American Petroleum Institute (IV-D-21) p. 3, 9
Citgo Corporation (IV-D-5) p. 3
Marathon Ashland Petroleum, LLC (IV-D-15) p. 5
Phillips Petroleum Company (IV-D-20) p. 2-3
Sunoco, Inc. (IV-D-23) p. 1
U.S. Department of Energy (IV-G-2) p. 2-3
(2) EPA should not penalize refiners for voluntary efforts to reduce emissions.
Commenter offers detailed comment that because its St. Croix refinery
voluntarily participated in the EPA's 33/50 Program during the proposed
baseline period, it believes that it is inappropriate to penalize refiners for
reductions in benzene achieved by these efforts.
Letters:
Amerada Hess Corporation (IV-D-14) p. 1, 6-8
Response to 6.6(C)(1) and (C)(2): The purpose of today's action is to prevent future
increases above the current level of air toxics emissions derived from existing fuel properties.
This toxics anti-backsliding measure will ensure that mass emission rates (in milligrams per
mile, mg/mi) of air toxics from motor vehicles do not increase while the Agency gathers
additional information for a forthcoming rulemaking in 2003-2004.
The Clean Air Act identified five air toxics in the federal reformulated gasoline
program: benzene, 1,3-butadiene, formaldehyde, acetaldehyde, and POM. The RFG
program established a toxics emission performance standard for RFG, and an anti-
backsliding toxics standard for conventional gasoline based on 1990 baseline toxics levels
for each refinery. On average, refiners have overcomplied with the toxics emisisons
performance standards for both RFG and CG. Overcompliance of RFG standards resulted in
substantial toxics reductions beyond what was required by law. We have estimated
reductions in the total toxics inventories due to Overcompliance of 70 thousand tons in 1996
and 40 thousand tons in 2007 (see TSD). Today's program will ensure that these benefits
are maintained for the foreseeable future. This is important because without these anti-
backsliding requirements, refiners could increase the toxic emissions from their fuels up to
existing legal limits. This could happen if refineries increase benzene or aromatics to
increase octane levels, or if they change their refinery operations in reaction to unforeseen
future circumstances.
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Response to Comments
December 20, 2000
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It is our belief that, in general (and absent refinery disasters or other similar, critical
events), during the baseline period, every refinery was operating to maximize profits,
considering its crude slate, operating units, product mix, marketing plan, etc. "Cleaner"
refiners must have found it profitable to be overcomplying compared to "dirtier" refiners or
they would have already been penalized by the market from being cleaner. Nevertheless, to
be fair, we are providing an additional flexibility in the form of a baseline adjustment for those
refiners that can demonstrate how circumstances during 1998-2000 materially affected the
baseline toxics value determination.
(D) Commenters note that the effect of the MTBE, Tier 2 and HDDE rules will result
in an increase in the benzene content of fuels and thus refiners will not be able
to maintain baseline levels at no cost.
(1) Because the likely future reductions of MTBE and other oxygenates in
gasoline will result in reduced volume dilution and/or reduced octane, refiners
may need to change operations to offset these impacts. Those changes,
such as increased reformer severity, likely will increase benzene content.
Therefore, EPA must consider the effects of oxygenate reduction on any
additional benzene control program. Some of these commenters argued that
EPA needs to use a "systems approach" to evaluate the relationship of
oxygenate reductions with benzene levels. Another commenter also noted
that ethanol can only partially compensate for the loss of octane from the
MTBE phase-out. The higher oxygen content and volatility of ethanol
precludes it from being blended at the same volume levels as MTBE.
Letters:
Amerada Hess Corporation (IV-D-14) p. 4, 9
American Petroleum Institute (IV-D-21) p. 2
Citgo Corporation (IV-D-5) p. 3
ExxonMobil (IV-D-16) p. 2, 5
Kern Oil & Refining, Inc. (IV-D-31) p. 2-4
Marathon Ashland Petroleum, LLC (IV-D-15) p. 5
Murphy Oil Corporation (IV-D-17) p. 3-4
U.S. Small Business Administration (IV-D-26) p. 3
U.S. Department of Energy (IV-G-2) p. att
Western Independent Refiners Association (IV-D-40) p. 2-3
Response to 6.6(D)(1): We did not conduct a detailed analysis of potential MTBE controls
because we are still currently working on our MTBE proposal and it would be premature to
consider the possible impacts from this effort. The primary mechanism for controlling MTBE
emissions would be to limit the use of MTBE in gasoline, and any toxics emissions impacts
will be addressed in a separate rulemaking under the Toxic Substances Control Act (TSCA).
This rule will be considering whether to phase-down or phase-out MTBE use. We believe it
is reasonable to defer consideration of MTBE controls to that rulemaking, which will address
the important concerns of preserving water resources, as well as any air pollution impacts,
including today's toxics performance requirement. In addition, the EPA and the United States
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Response to Comments
December 20, 2000
Page 75
Department of Agriculture jointly announced, on March, 2000, the Administration's legislative
principles for protecting drinking water supplies, preserving clean air benefit and promoting
renewable fuels and urged Congress to take action consistent with these principles,
including providing EPA the authority significantly reduce or eliminate the use of MTBE in
gasoline.
While we have not tried to predict how controls on MTBE might affect the costs of
complying with today's rule, we note that since we have switched to a toxics performance
requirement for this final rule, refiners will have more flexibility to address fluctuations in the
benzene content of the fuel or fluctuations in octane.
Finally, some of these commenters argued that EPA needs to use a "systems
approach" to evaluate the relationship of oxygenate reductions with benzene levels.
Because the Agency is currently working on potential controls on MTBE in a separate
rulemaking, we believe it is premature to conduct a detailed analysis on the potential control
of MTBE in today's rulemaking. Rather, we believe it is more appropriate for today's toxics
performance requirement to be addressed in the MTBE TSCA rulemaking.
(2) The new refinery processing configuration necessary to meet the Tier 2
requirements will likely require the production of higher aromatics (benzene)
gasoline to compensate for the octane losses experienced in making the
lower sulfur gasoline. Similarly, other commenters argued generally that
benzene levels will increase to compensate for octane loss from desulfurizing
FCC gasoline to meet the Tier 2 standards. Some of these commenters also
noted that to compensate for the lost octane, small refiners will increase
reformer severity (and run the platformer harder), which results in more
benzene. EPA may want to use this proposal as a means to avoid that
potential outcome, but EPA must assess the costs incurred by refiners to
maintain current benzene levels in the face of these fuel changes. Other
commenters also noted generally that to maintain baseline levels in the light
of market, operational or fuel changes, refiners may choose from several
strategies, but each option to decrease the benzene content of fuel would
require significant capital investment and increase the operating expenses of
the refiner.
One refiner estimates that its cost of compliance will be approximately $10
million, necessary to upgrade the splitter and to add a benzene saturation
unit. Another refiner estimates that, based on changes to meet Tier II
requirements, it will need to invest an additional $35 million for a reformate
splitter and an isomerization unit to maintain baseline benzene levels.
The DOE provides a detailed analysis and estimate of the cost impacts
associated with the no-backsliding approach given: (1) transition to low sulfur
gasoline; (2) expected near-term production increases; and (3) an MTBE ban.
The DOE used a refinery modeling technique to develop the cost impact
estimates. The comments include an attachment that describes the study
methodology and findings. In each modeled case, the importance of octane
and reformate gasoline under any of these three changes in the overall
gasoline pool result in cost increases to maintain 1998-99 baseline benzene
levels. Moreover, the model assumes liberal increases in demand for
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Response to Comments
December 20, 2000
Page 76
benzene as petrochemical feedstock, and DOE's analysis notes that more
conservative assumptions would increase the modeled cost impacts of EPA's
proposal. For the low-sulfur gasoline issue, DOE estimates that the refiners'
cost of complying with the proposed rule will be approximately 0.3 cents per
gallon. Assuming that near-term gasoline production increases at expected
levels (and assuming that those increased volumes must meet the baseline
benzene levels), the refiners' costs would increase approximately by an
additional 0.3 cents/gallon. Finally, the Department's analysis suggests that
reducing or eliminating MTBE as a fuel component will further increase the
cost of maintaining current gasoline benzene levels by 0.36 cents/gallon.
Thus the combined effect of all three changes in the overall gasoline pool
would be an approximate one cent/gallon increase in refiners' production
costs.
Letters:
Amerada Hess Corporation (IV-D-14) p. 4, 9
American Petroleum Institute (IV-D-21) p. 2-3, 5-6
Citgo Corporation (IV-D-5) p. 3
ExxonMobil (IV-D-16) p. 2, 5
Gary Williams Energy Corporation (IV-D-3) p. 2
Marathon Ashland Petroleum, LLC (IV-D-15) p. 5
Murphy Oil Corporation (IV-D-17) p.1, 3-4
Placid Refining Company, LLC (IV-D-2) p. 2
U.S. Small Business Administration (IV-D-26) p. 3
U.S. Department of Energy (IV-G-2) p. att
Response to 6.6(D)(2): The refinery modeling overseen by the Agency for this rulemaking
predicted only negligible costs related to a toxics emissions performance baseline
requirement, despite capturing a greater amount of the overcompliance with toxic emissions.
This situation is the result of the reduction in fuel sulfur levels which operate to reduce
emissions of VOCs and air toxics by enabling the next generation of light-duty aftertreatment
to operate effectively. Thus the refinery modeling predicted that even with potential changes
to octane and possibly benzene content, benzene and toxic emissions will not increase
above 1999 levels even after Tier 2, low-sulfur diesel fuel, and Phase II RFG. In sum,
accounting for future fuel requirements known to the Agency at this time, our regional refinery
modeling and emissions performance analysis does not forecast that on average refineries
will need to invest additional resources to comply with the new baseline requirements
finalized today. Based on our regional refinery modeling, we conclude that a toxics
performance requirement would be more appropriate forouranti-backsliding program under
202(l)(2) than the proposed benzene content standard, due in part to the potential costs
associated with a benzene content standard. The reader should refer to the TSD, Chapter
7.C fora more detailed discussion of the refinery modeling. Please see response 6.6(D)(1)
for our response regarding MTBE.
(3) Small refiners have restricted feedstocks, limited gasoline processing
capabilities, and limited access to financing, engineering, and other
resources. To the extent operational changes are needed to maintain
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Response to Comments
December 20, 2000
Page 77
baseline benzene levels, the proposed regulations may force small refiners to
either shut down or operate at production levels that may be uneconomical.
Small refiners also may be forced to increase their dependence on outside
gasoline blendstocks which may not be available at economical prices. One
commenter also argued that small refiners do not have sufficient benzene
volumes to cost effectively sell benzene feedstock to overseas chemical
plants. One commenter also argued to meet the tighter diesel fuel sulfur
standards, hydrogen consumption in hydrotreaters will increase significantly,
resulting in the need to increase reformer severity. An increase in reformer
severity will result in increased benzene levels in gasoline. Because of these
constraints, benzene sales are not economical for small refiners. Another
commenter stated that small refiners have indicated that market changes
alone could mean a $5-10 million increase in equipment costs to meet the
lowest average benzene level from 1996-1999 versus the highest level. The
commenter argues that these cost impacts will only increase as a result of
operational changes that will be necessary to meet MTBE, desulfurization,
and MACT requirements and that may affect benzene levels.
Letters:
Gary Williams Energy Corporation (IV-D-3) p. 2-3
Kern Oil & Refining, Inc. (IV-D-31) p. 4-5
Placid Refining Company, LLC (IV-D-2) p. 2
Silver Eagle Refining, Inc. (IV-D-18) p. 1
U.S. Small Business Administration (IV-D-26) p. 3
Western Independent Refiners Association (IV-D-40) p. 2-3
Response to 6.6(D)(3): See response to 6.6(D)(2). In addition, our refinery modeling
comparing the year 1999 as a base case year to the year 2005 as the reference case year
(accounting for expected changes in fuel properties due to Phase II RFG, Tier 2 low-sulfur
gasoline and 15 ppm low-sulfur diesel fuel (based on the proposed HD07rule)) showed that
for CG, the toxics emissions are likely to remain at or below 1999 levels and that for RFG,
refiners are likely to be able to meet or exceed the new toxics baseline requirements.
Therefore, on average we do not anticipate that benzene levels will increase significantly for
small refiners during the implementation of these future fuels programs. To help ensure that
this toxics emission anti-backsliding program is achievable for all refiners in the near term,
we are also including a deficit and credit carry forward, a compliance margin and an
expanded baseline period.
(4) One commenter estimates that the MTBE and desulfurization rules will
increase gasoline benzene content by 20% from the 1998/1999 baseline
levels.
Letters:
Placid Refining Company, LLC (IV-D-2) p. 2
Response to 6.6(D)(4): See response to 6.6(D)(1) and 6.6(D)(2).
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Response to Comments
December 20, 2000
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(E) Gasoline benzene levels will be impacted by shortages in the availability of
ethanol as MTBE is phased out.
(1) Should ethanol supplies become limited due to the proposed MTBE phase-
out, benzene levels will increase as the octane from ethanol will be replaced
by operating at higher reformer severities.
Letters:
Amerada Hess Corporation (IV-D-14) p. 4
Placid Refining Company, LLC (IV-D-2) p. 2
Response to 6.6(E)(1): See response to 6.6(D)(1).
(F) Small refiners subject to the interim standards for sulfur in gasoline from 2004-
2007 will likely experience an increase in gasoline benzene levels during the
interim compliance period.
(1) To meet the interim standards, small refiners will likely undercut the heavy
FCC gasoline (which is essentially benzene-free) into the distillate pool which
will proportionately increase the percentage of benzene in the gasoline pool.
Letters:
Placid Refining Company, LLC (IV-D-2) p. 1
Response to 6.6(F)(1): The refinery modeling predicted that even with potential changes to
octane and possibly benzene content, benzene and toxic emissions will not increase above
1999 levels even after Tier 2, low-sulfur diesel fuel, and Phase II RFG. In sum, accounting
for future fuel requirements known to the Agency at this time, our regional refinery modeling
and emissions performance analysis does not forecast that on average refineries will need to
invest additional resources to comply with the new baseline requirements finalized today.
Our regional refinery modeling allowed us to conclude that a toxics performance requirement
would be more appropriate under 202(l)(2) than the proposed benzene content standard, due
in part to the potential costs associated with a benzene content standard. The reader should
refer to the TSD, Chapter 7.C for a more detailed discussion of the refinery modeling. Since
we have switched to a toxics performance requirement in today's rule, refiners will have more
flexibility to address fluctuations in the benzene content of the fuel, because other fuel
properties may be altered in order to meet the toxics performance requirement besides
benzene. Because our refinery modeling accounted for the introduction of low-sulfur
gasoline, we do not believe that refiners will have significant costs in meeting a toxics
performance requirement during the interim period.
6.7: Start Date
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Response to Comments
December 20, 2000
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(A) EPA should implement the rule earlier than the proposed 2002 start-date.
(1) The serious public health threats associated with MSATs in urban areas and
the clear statutory mandate of the CAA warrant immediate action by the
Agency, sooner than 2002.
Letters:
Consumer Policy Institute (IV-D-8) p. 2
Response to 6.7(A): Given that this final rule is being issued late in December 2000, and
that the reporting period is the calendar year, it is not practical to implement this program
sooner than the beginning of 2002. Though it is simply an anti-backsliding program, and
refiners will easily and quickly be able to determine their baseline, there are baseline-related
issues which will take some time to figure out. Additionally, though we could start the
program early, and perhaps pro-rate baselines for that first year, there would be little or no
environmental or economic value in that exercise. The Act does not specify a start date for
the toxics program created out of the mandate of section 202(1), so we created a program
that limits toxics emissions to recent historical levels which can be implemented as soon as
practically possible.
(B) Supports a 2002 start date.
(1) Commenter provides no further supporting information or detailed analysis.
Letters:
Tosco (IV-D-41)p. 3
Response to 6.7(B): We agree with commenter.
(C) EPA should implement the rule later than the proposed 2002 start date.
(1) EPA should delay the effective date of this proposal until after 2005 when Tier
2 and MTBE requirements are completed. Only then will the costs of this
program and the magnitude of the benzene reductions be quantifiable. Other
commenters stated generally that the timing should be consistent with Tier 2
and/or MTBE implementation.
Letters:
American Petroleum Institute (IV-D-21) p. 7
Marathon Ashland Petroleum, LLC (IV-D-15) p. 7
Phillips Petroleum Company (IV-D-20) p. 4
(2) Compliance with the benzene level standard by 2002 will be problematic.
Once baseline determinations are made, refiners need time to develop
operational plans, and perhaps some capital projects, to ensure compliance
with the new standards. One commenter suggests a lead time of at least 2
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Response to Comments
December 20, 2000
Page 80
years from final promulgation of the rule, and a longer lead time of up to 4
years may be required.
Letters:
American Petroleum Institute (IV-D-21) p. 7
ExxonMobil (IV-D-16)p. 5
Phillips Petroleum Company (IV-D-20) p. 4
Response to 6.7(C)(1) and 6.7(C)(2): We are finalizing the start date as proposed.
Because this is an anti-backsliding program, lead time is not needed to install hardware or
make operational changes. As indicated in the preamble to the final rule, refinery modeling
indicates that, on average, refineries' toxics emissions will tend to be lower than 1999 levels
(approximating our baseline period) after Tier 2. Thus, there is no need to wait for
implementation of future controls to evaluate the achievability of these anti-backsliding
standards.
6.8: Separate Standards for RFG & CG
(A) Supports a single pool benzene program.
(1) A single pool would not affect the level of total benzene in gasoline but would
provide refineries with much more flexibility. Otherwise, the flexibility for a
refiner to shift production depending on their own needs, market incentives or
future opt-ins to the RFG program will be very restricted.
Letters:
American Petroleum Institute (IV-D-21) p. 8
Citgo Corporation (IV-D-4) p. 5
Response to 6.8(A)(1): The commenter(s) specifically raises the issue of separate anti-
backsliding requirements for RFG and CG. It is true that setting a single standard for the
benzene content of all gasoline, whether RFG or CG, would not allow the total amount of
benzene in gasoline to increase above 1998 - 2000 levels. However, doing so could result in
increases in RFG fuel benzene content, which would result in increased benzene emissions
in RFG areas. We have have set separate anti-backsliding baselines for RFG and CG
because we have determined that separate standards represent the greatest degree of
control achievable in the short term at negligible cost. A single pool for control of toxics
emissions under our anti-backsliding program would not represent the greatest degree of
control achievable.
6.9: Incremental Volumes
(A) Supports the use of the 0.95% volume requirement for incremental volumes of
RFG above baseline levels.
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Response to Comments
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(1) Removing additional benzene from incremental RFG production does not
make economic sense and will result in added cost to refiners. Some
commenters noted that subjecting incremental RFG production to baseline
levels would penalize refiners that have overcomplied. A 0.95% by vol.
requirement will encourage incremental RFG production where needed and
provide needed flexibility for refiners to respond to increased RFG demand
and avoid supply disruptions. One commenter added that, with gasoline
demand increasing, more stringent standards on incremental volumes would
likely have a significant negative impact on the market. One of the
commenters also suggested that, because incremental volumes will be
subject to Phase II RFG, a simpler solution may be to exempt incremental
volumes from this rule.
Letters:
American Petroleum Institute (IV-D-21) p. 8
British Petroleum (IV-D-18) p. 2
ExxonMobil (IV-D-15)p. 7
Marathon Ashland Petroleum, LLC (IV-D-14) p. 7
National Petrochemical and Refiners Association (IV-D-33) p. 7
Phillips Petroleum Company (IV-D-20) p. A-3
Sunoco, Inc. (IV-D-23) p. 2
Response to 6.9(A)(1): The use of the current 0.95 vol% benzene requirement for
incremental volumes of RFG above baseline volumes is equivalent to excluding incremental
volumes from this rulemaking. As described in the preamble, we have in fact determined that
it is appropriate to exclude incremental volumes.
According to our analysis of the relationship between fuel benzene content and increasing
gasoline production volumes, as summarized in the Technical Support Document, we believe
that incremental volumes will exhibit very small, if any, increases in fuel benzene content. As
a result, we would not expect that the application of our anti-backsliding requirement to
incremental volumes would result in added cost to refiners. However, since our analysis
focused on fuel benzene content only, and since it did not take into account the potential for
increased gasoline imports to meet growth in gasoline consumption overtime, we cannot be
confident that the toxics emissions performance levels of gasoline will not deteriorate as
production volumes increase above baseline levels. If the toxics emissions performance
deteriorates with increasing production, our standard could impose significant costs on
refiners by requiring them to control the toxics performance of these incremental volumes.
Because we do not believe that a program that imposes these costs is achievable in the near
term, and because we do not want to create a disincentive for RFG producers to increase
production, we are excluding these incremental volumes from today's rule. These
incremental volumes, however, will remain subject to the existing RFG standards in 40 CFR
§80.41.
Concerning the comment that subjecting incremental RFG production to baseline levels
would penalize refiners that have overcomplied, please see our response to Issue 6.6(C).
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Response to Comments
December 20, 2000
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(B) Incremental CG should be limited to original 1990 CG industry average benzene
levels.
(1) Such an approach is consistent with the existing regulations and is consistent
with the approach suggested by many commenters for RFG. One commenter
added that, with gasoline demand increasing, more stringent standards on
incremental volumes would likely have a significant negative impact on the
market.
Letters:
American Petroleum Institute (IV-D-21) p. 8
British Petroleum (IV-D-18) p. 2
ExxonMobil (IV-D-15)p. 7
National Petrochemical and Refiners Association (IV-D-33) p. 8
Phillips Petroleum Company (IV-D-20) p. A-3
Response to 6.9(B)(1): For the reasons stated in the preamble and in our response to Issue
6.9(A)(1), on the basis of the information available to us at this time we cannot guarantee that
the toxics emission performance levels of incremental volumes will not deteriorate. This
holds true for CG as well as RFG. As a result, we have determined that the exclusion of
incremental volumes from our anti-backsliding program should apply to CG as well as RFG
to ensure that today's rule is achievable in the near term.
(C) Incremental volumes should be subject to national average benzene levels
(0.66% RFG and 1.11% CG).
(1) Commenter provides no further supporting information or detailed analysis.
Letters:
Amerada Hess Corporation (IV-D-13) p. 3, 8
Response to 6.9(C)(1): We have decided to exclude incremental volumes from this rule,
rather than applying a separate standard to these volumes. We believe this approach is the
most reasonable way to avoid imposing potentially significant costs on refiners and ensure
that today's standards are achievable in the near term.
(D) For incremental volumes of CG and RFG, EPA should use the industry-wide
average for the baseline period selected in the final rule.
(1) Such an approach will provide needed flexibility while maintaining the intent
of the anti-backsliding approach. If EPA does not take this approach to
incremental volumes, refineries with the highest baselines will have the
greatest incentive to increase production at the lowest cost.
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December 20, 2000
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Letters:
Chevron (IV-D-34) p. 1
Response to 6.9(D)(1): See our response to Issue 6.9(C). We believe the exclusion of
incremental volumes from this rule addresses commenter's concern regarding disincentives
to increase production.
(E) EPA should propose a single weighted annual standard rather than 2 separate
compliance periods and compliance levels (one applicable to baseline
production and another applicable to incremental production).
(1) Most commenters suggested this for both RFG and CG. Commenters
generally provided no further supporting information or detailed analysis,
although one commenter supported this approach only for CG and provided
an example of how this approach would work for CG.
Letters:
American Petroleum Institute (IV-D-21) p. 8
ExxonMobil (IV-D-15)p. 7
National Petrochemical and Refiners Association (IV-D-33) p. 8
Phillips Petroleum Company (IV-D-20) p. A-3
Response to 6.9(E)(1): As discussed in our response to Issue 6.8, we have determined that
our anti-backsliding program should apply separately to RFG and CG. However, we agree
that within these two pools of gasoline, our anti-backsliding program should set a single
standard rather than two standards, one applicable to baseline volumes and another to
incremental volumes.
Since we have determined that our program should exclude incremental volumes, it was
necessary to adjust the compliance calculations accordingly without requiring refiners to
identify the specific volumes of their gasoline which might be labeled the incremental
volumes. Otherwise there would in fact be separate standards applicable to baseline and
incremental volumes. As described in the Technical Support Document, we have finalized a
compliance procedure in which the existing standards for RFG or CG, as applicable, are
volume-weighted with a refinery's own baseline toxics performance levels to obtain the
compliance baseline applicable to all future production. This procedure effectively excludes
incremental volumes from the compliance calculation while avoiding separate standards for
baseline and incremental volumes.
(F) Additional volumes (or gasoline produced by importers/foreign producers
should meet the most stringent of: the individual refiner's 1998-99 baseline or
1998-99 national average baseline.
(1) Commenter provides no further supporting information or detailed analysis.
Letters:
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Response to Comments
December 20, 2000
Page 84
Bluewater Network (IV-D-29) p. 1-2
Response to 6.9(F)(1): See our response to issue 6.9(C).
6.10: Appropriate Baseline Period
6.10.1: Proposed 1998-99 Baseline Period
(A) Expressed support for the proposed baseline period.
(1) Commenter provided no further supporting information or detailed analysis.
Letters:
Commonwealth of MA DEP (IV-D-13) p. 1
Response to 6.10.1 (A): While a 1998-1999 baseline period was proposed, after further
consideration, we believe that a baseline period of 1998-2000 is more appropriate because it
includes the most recent gasoline production of a refinery. A three-year baseline period also
averages out the effects on gasoline from operational irregularities and changes such as
equipment turnarounds.
(B) Expressed opposition to the proposed baseline period.
(1) The arbitrary choice of the 1998/1999 period penalizes those refiners who,
because of various operating or market conditions during those years, had
lower benzene levels than would otherwise be normal or reasonable. (See
related comments under Issue 6.6.) A number of these commenters
proposed alternative baseline periods (see Issue 6.10.2). One commenter
added that the choice of a 1998-99 baseline year restricts small refiners and
does not allow the flexibility small refiners need to operate efficiently.
Commenter points to conflicts with recent design changes at its plant and the
likely restrictions on blend stock mixes as adverse effects caused by use of
the 1998-99 baseline period.
Letters:
Amerada Hess Corporation (IV-D-14) p. 1, 3, 6
Citgo Corporation (IV-D-5) p. 1
Countrymark Cooperative, Inc. (IV-D-35) p. 2
Gary Williams Energy Corporation (IV-D-3) p. 2
Phillips Petroleum Company (IV-D-20) p. A1-A2
Response to 6.10.1(B)(1): As indicated in the proposal, we believe, that in general, refiners
were operating during the proposed baseline period at a benzene level that was the best for
them at the time. Many of the refiners with the lowest baseline benzene levels remove
benzene from their gasoline pool by extracting it and selling it to the petrochemical market.
This extraction technology is quite costly, and is not likely to be underutilized. Additionally,
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Response to Comments
December 20, 2000
Page 85
we do not expect a downturn in the petrochemical market's need for benzene as a feedstock.
Thus, those refiners that have low benzene levels (mostly those with extraction capability) will
likely be able to continue extracting benzene, thus maintaining their low baseline benzene
levels. The form of the standard finalized today, a toxics performance standard, may be
more flexible for most refiners than the proposed benzene standard. Finally, the start of the
Tier 2 gasoline sulfur program should provide yet additional flexibility in meeting today's
toxics requirement, as our refinery modeling predicts that, on average, toxics emissions after
start of Tier 2 should be lower than during the baseline period.
With regard to the small refiner comment, we do not have provisions for small refiners
because we determined that this rule does not affect small refiners differently than it affects
all other refiners. We have provided a number of flexibilities, including deficit and credit
carryforward, which are available to all refiners. Additionally, we believe that adding the year
2000 to the baseline period (now, 1998-2000) helps to smooth out year-to-year
inconsistencies at the refinery, due to operational factors, marketing, etc. We have also
included a provision which allows a refiner to petition fora different baseline for its refinery in
certain situations.
(2) The proposed baseline period ignores the impact of compliance with recently
promulgated and pending fuels regulations which will impact the benzene
concentration in the gasoline pools. (See related comments under Issue 6.6.)
Letters:
Countrymark Cooperative, Inc. (IV-D-35) p. 2
Murphy Oil Corporation (IV-D-17) p. 2
Response to 6.10.1(B)(2): We disagree that the proposed baseline period, or the baseline
period finalized today, ignore the recently promulgated rules (presumably, Tier 2 gasoline
sulfur). We used refinery modeling results in our analysis for this rule which showed that, on
average, toxics emissions after the start of the gasoline sulfur program will be lower than in
the baseline period (for the refinery modeling work, 1999). Thus, it is likely that by virtue of
complying with the gasoline sulfur rules, refiners may find it easier to comply with today's
toxics requirements. It is premature at this time to consider the impact on toxics performance
of the upcoming MTBE rule because we do not know what that rule will look like.
(3) The proposed baseline period penalizes those refiners who have optimized or
revised their operation in such a manner that has inadvertently increased
gasoline pool benzene levels, such as changes in availability of feedstock or
purchased gasoline blendstocks. One commenter's facility is no longer able
to procure the same lower benzene content blendstocks that it purchased in
1998-1999.
Letters:
Amerada Hess Corporation (IV-D-14) p. 1-2
Response to 6.10.1(B)(3): We expanded the baseline period to encompass three years
instead of two. The three year baseline period should help to smooth out operational
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Response to Comments
December 20, 2000
Page 86
irregularities and bring the baseline closer to the most recent operational year. And, as
explained above, the gasoline sulfur program will likely cause toxics emissions levels to
decrease beyond those of the baseline period, thereby further ensuring that the costs
associated with this rule will be negligible. Additionally, the switch from the proposed
benzene standard to today's finalized toxics standards should provide more flexibility fora
refiner.
(4) The proposed baseline period penalizes those refiners who supplied
Oxygenated Fuels Program Gasoline to States as mandated by EPA due to
certain States' designation as CO non-attainment areas. The baseline also
penalizes any refiner who has recently completed capital project work to
improve refinery operations in such a way that may increase overall gasoline
pool benzene. In addition, the proposed baseline penalizes those refiners
that ran without downtime of benzene extraction equipment during the period.
When these extraction units are shut down for required maintenance, the
refiner will not be able to match baseline benzene levels.
Letters:
Amerada Hess Corporation (IV-D-14) p. 2-3, 6-7
Response to 6.10.1(B)(4): We agree that the use of oxygenate reduces fuel benzene levels
due to dilution. However, considering the switch from the proposed fuel benzene content
standard to a toxics performance standard, and the compliance margin and other flexibilities
provided as part of today's rule, we believe that refiners have sufficient flexibility to address
these types of changes. Nonetheless, we have provided limited provisions for baseline
adjustments under today's rule.
(5) If refiners met more stringent benzene levels in 1999-2000, EPA should use
that period as the point of reference to ensure that there is no backsliding
from current benzene levels.
Letters:
Clean Air Network, et al (IV-D-38) p. 3
Response to 6.10.1(B)(5): We have expanded the baseline period to include the year 2000,
creating a baseline period that spans 1998-2000. We did not choose this period to capture
the lowest average benzene levels of refiners. Rather, we chose this period to encompass
recent activity. The period 1999-2000 may have been the lowest average benzene period for
some refiners, but certainly not all refiners. We chose the baseline period for this anti-
backsliding rule to ensure that the standard would be achievable in the near term.
Additionally, we included 2000 data to reflect the most recent operations and extended the
baseline period to three years to account for operational irregularities and changes.
(C) EPA should revise section 80.690(c)(2)(i) to delete the term "annual."
(1) The benzene baseline is a volume-weighted average over a 24-month period,
not an annual average.
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Response to Comments
December 20, 2000
Page 87
Letters:
National Petrochemical and Refiners Association (IV-D-33) p. 16
Response to 6.10.1(C)(1): We have taken commenter's suggestion into account in
modifying the regulations to the new toxics performance approach .
6.10.2: Alternative Baseline Periods and Adjustments
(A) Several years of data should be used to establish a baseline in order to account
for the many factors that influence a refinery's gasoline volume, benzene level,
and RFG/CG ratio from year to year.
(1) A longer timeframe, such as 1996-1999 or 1997-1999 at a minimum, is
preferred because a longer period would be more representative of actual
refinery operations overtime, and less influenced by short-term shifts in
operations or markets, than a two-year period. This approach would reduce
the need to petition for an alternative. One commenter specifically
recommended a 1996-99 baseline period because that period: covers the
RFG Phase I period with exclusion of the first transition year (1995); covers a
4-year span that is likely to include and recognize most major turnarounds at
refineries and at least allows their impact to be averaged over four years; and
is consistent with the anti-dumping blendstock controls.
Letters:
American Petroleum Institute (IV-D-21) p. 7
British Petroleum (IV-D-19) p. 2
ExxonMobil (IV-D-16)p. 7
National Petrochemical and Refiners Association (IV-D-33) p. 7
Tosco (IV-D-41)p. 3
(B) Opposes an individual refiner/importer baseline, but if EPA determines one is
necessary, it should include as many years as practical.
(1) One commenter suggested a four-year baseline (1996-1999) which includes
operational fluctuations at any given refinery, while another commenter
suggested using the entire RFG Phase I period (1995-1999). This approach
would reduce the need for a refiner to petition for a different baseline period if,
during a portion of the baseline period, operations were significantly different
from average.
Letters:
Citgo Corporation (IV-D-5) p. 4
Phillips Petroleum Company (IV-D-20) p. A1-A2
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Response to Comments
December 20, 2000
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(2) Commenter suggests a 3-year baseline period from 1998-2000. Inclusion of
the year 2000 into the baseline period will incorporate recent operational
history and help compensate those refiners that have undergone recent
operational changes.
Letters:
Amerada Hess Corporation (IV-D-14) p. 3, 8
Response to 6.10.2(A)(1), (B)(1), and (B)(2): We are finalizing a three-year baseline
period, encompassing the years 1998, 1999 and 2000. This baseline period, which is one
year longer than the baseline period we proposed, provides baseline values which are truer
to a refinery's "normal" operating mode. We believe that including 2000, precisely because
it is a Phase II RFG year, improves the baseline because it adds data to the baseline
determination which is the most recent available. Including 2000 also helps to further offset
(by virtue of a 3-year average versus a 2-year average) the effects of unit turnarounds at the
refinery. At the same time, we do not expect significant differences, on average, between a
baseline established using the 2-year averaging approach and one developed using the 3-
year approach. However, we believe that for an individual refinery, the 3-year averaging
approach provides that refinery with a more robust baseline. Finally, given that compliance
with this rule is unlikely to require any capital improvements or operational changes by
refiners to achieve its goals, and since refiners will have the 2000 data, we believe this data
should be included in the baseline determination.
(C) A refiner should be allowed to adopt as its baseline either their average
benzene level in 1998-99 or their highest average level from the last five years.
Or the baseline choice could be between the 1998-99 average or an average
based on any two years of the refiner's choice from the last five years.
(1) Commenter provided no further supporting information or detailed analysis.
Letters:
Countrymark Cooperative, Inc. (IV-D-35) p. 3
(2) Offering refiners, especially small refiners, a baseline choice might provide
some flexibility. However, this would not fully address the likely future
changes in the baseline beyond 2000 that will be necessary because of other
fuel control regulations.
Letters:
U.S. Small Business Administration (IV-D-26) p. 4
(3) Commenter prefers a small refiner exemption for Phase I, but in the absence
of an exemption believes that this type of baseline flexibility could provide
some flexibility for small refiners in the interim period before 2004.
Letters:
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Response to Comments
December 20, 2000
Page 89
Gary Williams Energy Corporation (IV-D-3) p. 4
Response to 6.10.2(C)(1), (C)(2), and (C)(3): We disagree that a refinery's baseline should
be its highest level during any time period, or the refiner's choice of any two years (which
likely would result in the highest average level), even under a toxics performance standard.
We set a uniform baseline period because it sets a standard, based on the most recent
activity for every refiner, which likely was the most economical manner in which to run the
refinery. Additionally, we have not included small refiner provisions because we do not
believe small refiners are affected differently by today's rule than other refiners. However, we
have included a provision which allows a refiner to petition for an alternative baseline for its
refinery in certain situations.
(D) Opposes inclusion of the years 1995 and 2000 in the baseline.
(1) Commenters oppose use of these years because they were RFG transition
years, and therefore are not representative of actual refinery operations over
time.
Letters:
American Petroleum Institute (IV-D-21) p. 7
ExxonMobil (IV-D-16)p. 7
(E) Opposes the use of the year 2000 in the baseline because, since the time EPA
published its proposed rule, some refiners may choose to modify data for the
final quarter of the year 2000.
(1) Commenter provides no further supporting information or detailed analysis.
Letters:
Phillips Petroleum Company (IV-D-20) p. A-2
Response to 6.10.2(D) and (E): We believe that including 2000, precisely because it is a
Phase II RFG year, improves the baseline because it adds data to the baseline determination
which is the most recent available. Including 2000 also helps to further offset (by virtue of a
3-year average versus a 2-year average) the effects of unit turnarounds at the refinery. While
transition year issues were probably significant in 1995 at the start of the RFG and anti-
dumping programs, we believe that the switch to the Phase II RFG requirements was less
significant, in part because of the familiarity with the regulations and the production of fuels
even before 2000 that met the Phase II standards. For conventional gasoline, transition is
not an issue because the baseline fuel is the same, only the emissions, by virtue of the
Phase II Complex Model, are different. We are not concerned about refiners modifying data
for the final quarter of 2000 because this rule will not be issued until its court-ordered
deadline of December 20, 2000 and it is our understanding that most operating plans for
December have been finalized much earlier. We do not believe refiners would (or could)
significantly modify their operations for 11 days in order to affect a baseline determined over
a 3-year period.
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Response to Comments
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(F) Commenter proposes a baseline using the 2-year period following the first year
in which a refinery meets the Tier 2 standards.
(1) Doing so will assure that the goals of the proposed rule and the Tier 2
standards will be met in the most efficient and fair means possible.
Letters:
Murphy Oil Corporation (IV-D-17) p. 2
Response to 6.10.2(F)(1): We do not agree with this comment. The toxics baseline after a
refinery meets the Tier 2 standards will likely be more stringent than a baseline determined
for the baseline period finalized today. As discussed in the preamble, refinery modeling
indicates that toxics emissions after the start of the gasoline sulfur program are, on average,
expected to be lower than during the 1998-2000 baseline period. Additionally, we do not
believe it would be appropriate nor practical from an enforcement point-of-view, for the
purposes of this anti-backsliding rule, to have refineries subject to the rule at different times.
If we were to implement such a rule, we likely would have to consider interim toxics
standards for those not immediately subject to their baseline standard. As part of the 2004
rulemaking, we will likely consider whether further changes to today's rule are appropriate
given implementation of Tier 2 and other programs.
(G) Commenter suggests that EPA keep the original 1990 refinery baseline
numbers derived from the Anti-dumping Regulation in Subpart E.
(1) Commenter provided no further supporting information or detailed analysis.
Letters:
Countrymark Cooperative, Inc. (IV-D-35) p. 3
Response to 6.10.2(G): We disagree with this comment. Refineries have demonstrated
that, for at least some of them, standards beyond the 1990 levels are achievable even in the
near term, considering cost, lead time and other factors. In some cases, however, a refinery
did not overcomply with their anti-dumping baseline. For these refineries, their 1998-2000
baseline will be the same as their 1990 anti-dumping standard.
(H) EPA should allow certain baseline adjustments.
(1) First, for those refiners who supplied OPRG during the baseline period to
those control areas that no longer require high oxygen fuel, EPA should allow
refiners to back out the oxygenate dilution effect associated with oxygenate
blending beyond the 2.0% wt. required by the Federal RFG program.
Letters:
Amerada Hess Corporation (IV-D-14) p. 3-4, 8
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Response to Comments
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(2) Second, if refiners began capital projects before the proposal that could affect
benzene levels, EPA should allow the refiners to factor in the impact of these
projects in determining the baseline.
Letters:
Amerada Hess Corporation (IV-D-14) p. 4, 8
(3) Third, EPA should allow refiners to include the effects of turnarounds on the
1998/1999 benzene baseline determination. Refiners operate their process
units on 4-5 year maintenance cycles; and many did not conduct any major
turnaround activities during the 1998-1999 baseline period.
Letters:
Placid Refining Company, LLC (IV-D-2) p. 3
(4) Fourth, in determining 1998-99 benzene levels, the rule should allow small
refiners to back out blendstocks and oxygenates purchased solely for anti-
dumping or other regulatory compliance.
Letters:
Silver Eagle Refining, Inc. (IV-D-18) p. 1-2
Response to 6.10.2(1-1): See response to Issue 6.10.3(A).
6.10.3: Petitions for Alternative Baseline
(A) Refiners should be allowed to petition for a different baseline period if, during a
portion of the baseline period, operations were significantly different from
normal.
(1) Commenter provides no further supporting information or detailed analysis.
Letters:
American Petroleum Institute (IV-D-21) p. 7
British Petroleum (IV-D-19) p. 2
ExxonMobil (IV-D-16)p. 7
National Petrochemical and Refiners Association (IV-D-33) p. 7
Response to 6.10.3(A): In general, we are not allowing baseline adjustments under this rule,
as were allowed under anti-dumping. The toxics baselines of this rule are based on actual
data - refinery modeling is not being used to estimate the quality or quantity of gasoline
during the baseline period. Nonetheless, we have provided limited provisions for baseline
adjustments under today's rule.
6.11: Flexibility Provisions
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Response to Comments
December 20, 2000
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6.11.1: 1 - or 2-year Compliance Period
(A) EPA should consider a two-year average for compliance purposes.
(1) Commenter makes clear, however, that neither this approach nor a one-year
deficit carryover option provides adequate protection for small refiners.
Letters:
Gary Williams Energy Corporation (IV-D-3) p. 4
(2) Commenter provides no further supporting information or detailed analysis.
Letters:
Countrymark Cooperative, Inc. (IV-D-35) p. 3
Response to 6.11.1 (A): See response to Issue 6.11.2(B).
(B) A one-year averaging/compliance period is preferred provided that a refiner
would be allowed to make up any deficit and be in compliance the following
year.
(1) Refiners should also be allowed to carry-over any benzene credit to the
following year, which could be used to demonstrate compliance. Most of
these commenters added that, absent any deficit/carryover provision, a two-
year compliance period is preferred.
Letters:
American Petroleum Institute (IV-D-21) p. 8-9
British Petroleum (IV-D-19) p. 2
Citgo Corporation (IV-D-5) p. 4
ExxonMobil (IV-D-16)p. 6
Response to 6.11.1 (B)(1): See response to Issue 6.11.2(B).
6.11.2: 1-year Carryover Option
(A) Opposes a one year deficit carry-over provision.
(1) A one-year standard is more protective of human health and the environment
and is a long enough averaging period for refiners to account for production
fluctuations.
Letters:
Bluewater Network (IV-D-29) p. 2
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Response to Comments
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Page 93
(B) Supports a one-year deficit carry-over provision.
(1) Commenter provides no further supporting information.
Letters:
Amerada Hess Corporation (IV-D-14) p. 3, 8
(2) Such a provision allows a refiner the opportunity to correct a problem that
occurs unexpectedly toward the end of a year.
Letters:
American Petroleum Institute (IV-D-21) p. 8-9
Citgo Corporation (IV-D-5) p. 4
Marathon Ashland Petroleum, LLC (IV-D-15) p. 7-8
National Petrochemical and Refiners Association (IV-D-33) p. 9
Tosco (IV-D-41)p. 3
(3) Moreover, commenters supported a program that would allow a refiner to
carry-over credits as well as deficits to year two. The net result would be the
same as benzene levels remain at baseline levels for any two year period, but
more flexibility is granted to refiners.
Letters:
American Petroleum Institute (IV-D-21) p. 8-9
British Petroleum (IV-D-19) p. 2
Citgo Corporation (IV-D-5) p. 4
ExxonMobil (IV-D-16)p. 6
Marathon Ashland Petroleum, LLC (IV-D-15) p. 8
Phillips Petroleum Company (IV-D-20) p. A-2
(4) IF EPA does not provide a deficit carry-over provision, then a two-year
compliance period is necessary to provide flexibility and EPA also should
include a benzene trading program for refiners.
Letters:
ExxonMobil (IV-D-16)p. 6
(5) Although generally supportive, one commenter notes that such a provision (or
a 2-year compliance period) provides only a very minimal safety net because
of the more stringent operating levels required for offset.
Letters:
Gary Williams Energy Corporation (IV-D-3) p. 4
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Response to Comments
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Page 94
(6) One commenter argued that the carry-over should be allowed for every period
even if used in the prior period, so long as the deficit from the prior period has
been fulfilled.
Letters:
Phillips Petroleum Company (IV-D-20) p. A-2
Response to 6.11.2(A) and (B): In the NPRM we discussed compliance periods of varying
length different from the proposed single calendar year compliance period. We believe a
one-year compliance period is consistent with the compliance periods of other gasoline
programs (and thus represents minimal additional reporting burden for refiners and
importers), and it is short enough that temporal variations in toxics emissions are minimized.
For these reasons, we are finalizing a one-year compliance period as proposed.
We do realize, however, that even for an anti-backsliding program, unusual situations may
happen which can significantly affect refinery operations, and which could cause the refinery
to be out of compliance with its requirement. To this end, we proposed and are finalizing a
one-year deficit carryforward. This will allow a refinery to exceed its anti-backsliding toxics
requirement for one year. In the next year, it must make up the deficit as well as be in
compliance for that year. Additionally, though not proposed, we are also including a one-year
credit carryforward. Under this provision, a refinery producing gasoline that is cleaner than
required by its toxics anti-backsliding requirement may use the overcompliance to cover any
deficit in the following year. Because we are also providing a toxics performance standard
compliance margin, overcompliance will be creditable for purposes of a credit carryforward
only to the extent that it is overcompliant beyond the compliance margin. The
overcompliance credits may not be traded to another company, and they expire at the end of
the next calendar year. Thus we have provided refiners with compliance flexibility in several
forms.
6.11.3: Trading Program
(A) Commenter opposes a credit and trade program.
(1) The commenter argued that a credit program provides no environmental or
public health benefit.
Letters:
Bluewater Network (IV-D-29) p. 2
(2) Although credit programs are established to provide flexibility, in practice they
can cause unfair competitive advantage. This has occurred with the oxygen
credit program when Gulf Coast refiners have used oxygen credits generated
from ethanol use in the Midwest. A refinery-specific average with a
compliance margin would enable refiners to comply and would provide equity
among refiners.
Letters:
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Response to Comments
December 20, 2000
Page 95
Sunoco, Inc. (IV-D-23) p. 2
RESPONSE to 6.11.3(A)(1) and (A)(2): In the NPRM, we discussed the possibility of
including another flexibility in the form of a credit trading program. Comments about this
option were mixed. Some refiners supported such a program, and offered other suggestions
to enhance or clarify the program. At least one refiner did not support such a program,
saying it would provide an unfair competitive advantage. Other industry commenters were
unsure of the actual implementation and feasibility of the program, given the unequal
baselines among refiners. Additionally, a trading program could result in gasoline quality
shifts from area to area. The goal of this anti-backsliding program is to maintain gasoline
quality (with respect to toxics emissions) at the refinery level; we do not expect geographic
gasoline quality shifts as a result of this program. Thus, because of these implementation,
feasibility and anti-competitive concerns, and because of the many other compliance
flexibilities provided in today's program, we are not including a credit program as part of this
rulemaking.
(B) Commenter supports a credit and trade program.
(1) Such a program would allow refiners additional flexibility in meeting the
proposed standard and thus would be beneficial. Some commenters stated
that the program would reward those refiners who can reduce benzene levels
below the baseline. One commenter noted that credits could be separately
traded in RFG and CG categories, with the net effect of no increase in overall
benzene. One commenter, although generally supportive, raised concerns of
fairness in that those refiners with the highest baselines may most easily
generate benzene credits.
Letters:
Amerada Hess Corporation (IV-D-14) p. 3, 8
American Petroleum Institute (IV-D-21) p. 9
British Petroleum (IV-D-19) p. 2
Citgo Corporation (IV-D-5) p. 4
ExxonMobil (IV-D-16)p. 6
Marathon Ashland Petroleum, LLC (IV-D-15) p. 7-8
Phillips Petroleum Company (IV-D-20) p. 5, A-3
Placid Refining Company, LLC (IV-D-2) p. 3
Response to 6.11.3(B)(1): See response to 6.11.3(A)
(2) A credit program in conjunction with a standard based on a national average,
but set slightly higher than the 1998-99 industry average baseline, would
insure that no new construction is required and alleviate the concerns of small
refiners.
Letters:
Koch Petroleum Group (IV-D-36) p. 1
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Response to Comments
December 20, 2000
Page 96
Response to 6.11.3(B)(2): See response to 6.11.3(A)
(3) Such a program would be beneficial to small refiners only if they were able to
bank credits for any periods which were under the benzene baseline before
the rule's effective date.
Letters:
Gary Williams Energy Corporation (IV-D-3) p. 4
Response to 6.11.3(B)(3): See response to 6.11.3(A)
(4) EPA should consider giving added value to credits generated below the
national average benzene levels for CG and RFC.
Letters:
Citgo Corporation (IV-D-5) p. 4
Response to 6.11.3(B)(4): See response to 6.11.3(A)
(C) The RFG benzene credit trading program should be extended to the anti-
backsliding gasoline benzene program.
(1) It seems unreasonable for a benzene credit trading program to exist to
facilitate compliance with a maximum 0.95 vol% annual average for RFG
without applicability to a new program with a more stringent standard.
Letters:
National Petrochemical and Refiners Association (IV-D-33) p. 8
Response to 6.11.3(C)(1): See response to 6.11.3(A)
(D) Even absent a trading program, EPA should allow cumulative banking of
benzene credits for a refiner's own use.
(1) Commenter provides no further supporting information or detailed analysis.
Letters:
Countrymark Cooperative, Inc. (IV-D-35) p. 3
Response to 6.11.3(D)(1): Today's rule contains a one-year credit carryforward provision
applicable to a refinery or aggregate of refineries. Under this provision, a refinery or an
aggregate may exceed (i.e., be cleaner than) its RFG orCG standard in one year, and use
the credit thereby created to offset a deficit the next year. This provision applies separately
to RFG and CG, and cannot be applied to other refineries or aggregates. We limited the
credit carryforward to one year, the same as the proposed and also finalized deficit
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Response to Comments
December 20, 2000
Page 97
carryforward provision. As discussed in the NPRM, a one-year compliance period is
consistent with the compliance periods of other gasoline programs (and thus represents
minimal additional reporting burden for refiners and importers), and it is short enough that
temporal variations in toxics emissions are minimized.
6.11.4: Hardship Waiver
(A) Opposes provision for refiners to petition for economic hardship waiver.
(1) Commenter provides no further supporting information or detailed analysis.
Letters:
American Petroleum Institute (IV-D-21) p. 7
RESPONSE to 6.11.4(A): In general, because this is an anti-backsliding rule, and not a
standard requiring additional reductions in emissions, hardship should be limited. We are,
however, adopting a provision permitting a refiner to seek a temporary waiver from the toxics
anti-backsliding requirements in certain circumstances. Such a waiver will be granted at
EPA's discretion. Under this provision, a refiner may seek permission to exceed its toxics
anti-backsliding requirements based on the refiner's inability to produce complying gasoline
because of extreme and unusual circumstances outside of the refiner's control that could not
have been avoided through the exercise of due diligence. This provision is similar to a
provision in EPA's RFG and gasoline sulfur regulations. It is intended to provide refiners
limited relief in unanticipated circumstances that cannot be reasonably foreseen at this time
or in the near future. The conditions for obtaining such a waiver are similar to those in the
RFG regulations. These conditions are necessary and appropriate to ensure that any
waivers granted are limited in scope, and that a refiner does not gain an economic benefit
from a waiver. Therefore, a refiner seeking a waiver must show that the waiver is in the
public interest, that the refiner was not able to avoid the nonconformity, that it will make up,
where practicable, the air quality detriment associated with the waiver, that it will pay back
any economic benefit from the waiver, and that it will meet its toxics anti-backsliding
requirements as expeditiously as possible. The refiner must also show that it will be unable
to meet its toxics anti-backsliding requirements even considering the deficit and credit
carryforward flexibility provisions included in today's program.
(B) Sec. 80.775 in the proposed rule, which provides for a temporary waiver to
distribute non-conforming fuel, makes no sense because the proposed
benzene average would be an annual average.
(1) Commenter provided no further supporting information or detailed analysis.
Letters:
Koch Petroleum Group (IV-D-36) p. 4
RESPONSE (6.11.4(6)): We agree with commenter that the language of the proposed
section 80.775 is awkward when applied to an annual average standard. Nonetheless, we
believe it is important to provide this type of flexibility in the toxics program we are
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Response to Comments
December 20, 2000
Page 98
promulgating today, because it is possible that certain events (as specified in section 80.775)
could cause a refiner to significantly exceed its annual average standard by an amount which
cannot be remedied by the refiner the next year (deficit carryforward). Thus we are retaining
this provision with minor modification to the language to better fit the toxics program
promulgated today.
(C) Supports a hardship waiver, at least for small refiners.
(1) Commenter provides no further detailed analysis.
Letters:
Silver Eagle Refining, Inc. (IV-D-18) p. 2
Response to 6.11.4(C): See response to Issue 6.11.4(A)
6.11.5: Aggregation of Refineries
(A) Commenter supports additional flexibility by allowing multi-refinery refiners
and importers the choice of aggregating refineries to determine compliant
benzene baseline level for both RFG and CG individually.
(1) The overall benzene concentrations will be maintained while providing
needed flexibility to maintain and/or increase both RFG and conventional
gasoline.
Letters:
British Petroleum (IV-D-19) p. 2
Response to 6.11.5(A)(1): We agree with the commenter that the ability of multi-refinery
refiners to aggregate baselines for compliance is a flexibility. This flexibility is already
provided through the anti-dumping program. Because today's toxics program is based on a
baseline period of 1998-2000, and because most refiners who have chosen to comply on an
aggregate basis did so during this time period, we are requiring them to also comply on the
same aggregate basis for this program.
6.11.6: Other Flexibility Options
(A) EPA should allow refiners to include the effects of turnarounds or other
circumstances on the benzene compliance standard.
(1) If the baseline determination does not account for the fact turnarounds may
not have occurred during the baseline period, then EPA should include an
appropriate adjustment as part of the compliance determination process.
Letters:
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Response to Comments
December 20, 2000
Page 99
Placid Refining Company, LLC (IV-D-2) p. 3
(2) Rule should have provision to account for aberrations in production levels and
benzene concentrations experienced in 1998-1999.
Letters:
Silver Eagle Refining, Inc. (IV-D-18) p. 2
Response 6.11.6(A)(1) and (A)(2): We are including a in the form of a baseline adjustment
provision for those refiners that can demonstrate how circumstances during 1998-2000
materially affected the baseline toxics value determination.
(B) EPA should establish a reasonable minimum for the number of batches
required to establish a baseline.
(1) If a refiner produced fewer batches during the baseline period than this
minimum, then the industry-average benzene levels would apply. This
exception would address, for example, non-CA RFG or CG produced by CA
refineries because those fuel types represent such a small portion of the
refineries' total production.
Letters:
Chevron (IV-D-34) p. 2
Tosco (IV-D-41)p. 4
Response to 6.11.6(B)(1): The regulations for this rule require that a refinery must have 12
consecutive months of data. Refineries with less than 12 months of data must comply with
the default baseline.
6.12: Testing, Reporting and Recordkeeping, and Compliance/Enforcement
Issues
(A) Proposed testing requirements are excessive.
(1) Since the proposed benzene content limit for CG is not a per gallon limit,
but rather an annual average, there is no need to impose a requirement
that the testing for benzene content be completed prior to batch
shipment. Furthermore, if EPA removes the testing prior to batch
shipment requirement of section 80.730(a)(1), the in-line blending
exemption requirement would not be needed.
Letters:
American Petroleum Institute (IV-D-21) p. 10
ExxonMobil (IV-D-16)p. 9
Koch Petroleum Group (IV-D-36) p. 4
National Petrochemical and Refiners Association (IV-D-33) p. 16
Phillips Petroleum Company (IV-D-20) p. A-4, A-5
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Response to Comments
December 20, 2000
Page 100
Response to 6.12(A)(1): EPA agrees with the commenter's recommendations on this issue.
Since there is no per gallon standard for benzene or toxics emissions for conventional
gasoline, there is no need to test such gasoline prior to shipping. Therefore, EPA is
eliminating that requirement from today's final rule.
(2) Sample compositing is a less exact method for determining compliance
than every-batch analysis. Commenter suggests EPA not encourage
such approaches.
Letters:
American Petroleum Institute (IV-D-21) p. 13
Phillips Petroleum Company (IV-D-20) p. A-4
Response to 6.12(A)(2): EPA agrees that sample compositing is a less exact method for
determining compliance and therefore, EPA proposed eliminating sample compositing for
conventional gasoline in its 1997 proposal (62 FR 37337, July 11, 1997). However, it was
not the purpose of this rulemaking to address that matter. When EPA finalizes its 1997
NPRM, the issue of sample compositing for conventional gasoline will be addressed more
fully and today's rule will be made consistent with that final rulemaking at that time with
regard to this issue.
(B) The dissimilar treatment of blending of downstream components into gasoline
raises questions as to the compliance approach intended by the Agency.
(1) EPA has explicitly excluded blenders of oxygenate and butane, but
failed to exclude the blending of other components, such as pentanes,
toluene and alkylate. EPA should maintain consistency in the treatment
of blendstocks in this rule with the treatment provided in other gasoline
antidumping and Tier 2 sulfur requirements.
Letters:
Phillips Petroleum Company (IV-D-20) p. A-4
Response to 6.12(B)(1): The commenter is only partially correct in its assessment of this
matter. All non-oxygenate blendstocks, including benzene, as well as those listed, are
included for compliance purposes in both the anti-dumping and Tier 2 requirements since
those blendstocks can adversely impact compliance with the applicable standards. However,
oxygenates and butane were explicitly excluded from the NPRM and today's final rule
because they would not adversely impact annual average benzene or toxics emissions levels
which is not the case for the other blendstocks listed by the commenter.
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Response to Comments
December 20, 2000
Page 101
(C) EPA should provide provisions to allow for effects of downstream oxygenate
blending to be adequately accounted for in determining benzene content.
(1) One commenter explained that as refiners switch from MTBE to ethanol,
oxygenate blending will shift from the refinery to the terminal. For RFG,
certain lab sample procedures apply, but for CG EPA needs to develop
appropriate procedures. The commenter added that EPA needs to
insure that this occurs without burdensome record keeping or
segregation requirements.
Letters:
National Petrochemical and Refiners Association (IV-D-33) p. 9
Tosco (IV-D-41)p. 3-4
Response to 6.12(C)(1): At this time, there is no regulatory requirement that refiners shift
from the use of MTBE to ethanol. However, when, and if that occurs, the provisions
contained at 40 CFR §§ 80.69(a) and 80.101(d)(3) provide appropriate methods for refiners
to adequately account for the properties of gasoline at the refinery where oxygenates are
added downstream of the refinery. EPA does not believe that this creates any additional
burdensome record keeping or segregation requirements and is consistent with current
provisions contained in the RFG and anti-dumping programs.
(D) Opposes any new refinery reports as a result of this rulemaking.
(1) Any further reporting/attestation requirements should be added to
existing RFG and CG forms and reports.
Letters:
Tosco (IV-D-41)p. 4
Response to 6.12(D)(1): It was not EPA's intention to create any additional reporting
requirements beyond those currently required for RFG and anti-dumping purposes. The
existing reports will be streamlined and/or modified as necessary to ensure their clarity and
the elimination of any incremental reporting burdens.
(E) Because there are no downstream standards, enforcement should track
Subpart E, a similar annual averaging program that is refinery-based. Another
commenter stated that there is no need for anyone except the producer or
importer to retain records given the lack of downstream standards.
(1) Commenter provided no further supporting information or detailed
analysis.
Letters:
Koch Petroleum Group (IV-D-36) p. 4
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Response to Comments
December 20, 2000
Page 102
National Petrochemical and Refiners Association (IV-D-33) p. 16
Response to 6.12(E)(1): The commenter suggests that since this is a refinery/importer-
based program there is no need for downstream parties to retain records. EPA agrees and
therefore, has eliminated the requirements for records to be retained by any parties other
than refiners and importers in today's final rule.
(F) EPA should not adopt the proposed sampling compliance certification.
(1) A signed certification is already required under 80.770(c)(1), and
therefore 80.735(c) is redundant. If EPA decides to keep 80.735(c),
then it should be moved to 80.770 so that all reporting requirements are
in one location.
Letters:
National Petrochemical and Refiners Association (IV-D-33) p. 16
(2) EPA should remove paragraph 80.730(c) that requires the
owner/operator to include in a compliance report a special certification
statement related to sampling compliance. Existing liabilities and non-
compliance provisions provide EPA with adequate certification and
enforcement utility.
Letters:
Phillips Petroleum Company (IV-D-20) p. A-5
Response to 6.12(F)(1) and (2): The commenter suggest that the sampling compliance
certification under 80.735(c) is redundant and unnecessary in light of other regulatory
requirements and liabilities. EPA agrees and has eliminated that provision from the final
rule.
(G) The rule should not require retention of sample portions for the most recent 20
samples collected because a refiner that produces one batch of gasoline per
year would be required to retain a sample portion for 20 years.
(1) Commenter provided no further supporting information or detailed
analysis.
Letters:
Koch Petroleum Group (IV-D-36) p. 4
Response to 6.12(G)(1): The commenter suggests that the requirement to retain portions of
the most recent 20 samples could result in samples being retained for an extraordinarily long
period of time if the refinery produces only one batch per year. EPA agrees and thus has
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Response to Comments
December 20, 2000
Page 103
revised this provision to require sample retention for no more than 90 days in any case. This
same change is being made to the Tier 2 rule as well.
(H) EPA does not have the authority to set the parent corporation liability standard
found in section 80.795(a)(3) of the proposed rule.
(1) Commenter provides no further supporting information or detailed
analysis.
Letters:
Koch Petroleum Group (IV-D-36) p. 4
Response to 6.12(H)(1): The Clean Air Act, in §§ 211 and 301, provides very broad
authority for the Administrator to create necessary fuels regulations and appropriate means
to enforce them. Pursuant to this authority, the Agency has created presumptive liability
schemes in our fuels programs, which have been consistently upheld by the courts. Parent
corporation liability is derived from our presumptive liability scheme. It is also consistent with
our interpretation of the RFG regulations, as stated in the RFG and CG Questions and
Answer Document.
(I) Section 80.785(b) is unnecessary because it is not possible for a person to
"cause another person to commit" an averaging violation. Another commenter
argued that this provision and similar provisions in sections 80.795(a)(2) and
(b)(2) should be removed because they are not applicable to RFG or anti-
dumping subpart in EPA's rules and will only create confusion amongst these
similar programs.
(1) Commenter provides no further supporting information or detailed
analysis.
Letters:
Koch Petroleum Group (IV-D-36) p. 4
National Petrochemical and Refiners Association (IV-D-33) p. 16
Response to 6.12(l)(1): The commenter suggests that it is not possible for another party to
cause a party to commit an averaging violation and therefore, prohibitions and liability for
such actions are not appropriate in this rule. EPA disagrees. While it is unlikely that this will
occur, it is possible for two parties to act in collusion whereby one party improperly shifts or
sells gasoline to another party for incorporation in the second party's compliance calculations
which leads to an averaging violation when the compliance calculations are corrected.
Similarly, it is possible that a downstream party, for monetary reasons, might induce a refiner
to produce noncomplying fuel, which might be less expensive to produce, and to sell that less
expensive fuel to the downstream party. In these cases, EPA believes the collusive parties
would have caused the refiner to commit an averaging violation. Additionally, these same
requirements are contained in the Tier 2 final rule for similar standards and EPA is currently
standardizing its rules where appropriate.
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Response to Comments
December 20, 2000
Page 104
The Agency disagrees with the commenters' additional argument that inclusion of the
causation liability in the toxics rule would cause confusion between programs because such
causation liability does not exist in the RFG and CG programs. Causation liability has been
an integral part of EPA's typical presumptive liability schemes, including those found in the
RFG and CG programs. EPA's effective, multi-party presumptive liability approach
established under our fuels programs has consistently been based on the fact that any of the
parties in the distribution system could have caused the violation. Further, the Tier 2 gasoline
sulfur rule specifically imposes causation liability similar to that found under the toxics rule.
(See the preamble to the final Tier 2 gasoline sulfur rule, 65 FR 6813.) Because of this prior
history of causation liability within the presumptive liability schemes of numerous fuels
programs, the Agency does not believe that specifically including causation liability in the
toxics rule will cause confusion.
(J) Baseline information may qualify as CBI for disclosure purposes.
(1) One commenter notes that EPA-approved benzene baseline and batch
data for each refinery should be considered confidential business
information.
Letters:
National Petrochemical and Refiners Association (IV-D-33) p. 15-16
Response to 6.12(J)(1): We agree that certain information in a refiner's baseline
submission may be considered Confidential Business Information (CBI). Such information
would include batch and total gasoline volume information, batch data, and seasonal fuel
parameter and emissions information. However, it is possible that the annual average toxics
baseline emissions values determined for this rule may not be considered CBI. The annual
average baseline emissions under the anti-dumping program were not considered CBI.
Nonetheless, a refiner should label all information in the baseline submission it deems to be
CBI as such.
6.13: Economic Impacts
6.13.1: Costs
(A) The proposed rule is not cost effective. (See related comments under Issue
6.6.)
(1) No cost effectiveness analysis has been conducted, and no benefit-cost
analysis has been completed. EPA has not established the need for, nor any
benefits from, these more stringent standards. The proposed rule fails to take
into account the impact of other regulatory initiatives relating to gasoline
composition and other factors that could result in costs to refiners, and therefore
EPA cannot proceed without analyzing the costs and benefits of the proposed
rule. One commenter stated that because the costs will exceed $100 million,
EPA is required to do an analysis under UMRA. Some of these commenters
also argue that EPA must publish another notice for comment after completing
this type of analysis.
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Response to Comments
December 20, 2000
Page 105
Letters:
American Petroleum Institute (IV-D-21) p. 1-2
ExxonMobil (IV-D-16)p. 2
Marathon Ashland Petroleum, LLC (IV-D-15) p. 1-2, 4-5
Murphy Oil Corporation (IV-D-17) p. 3-4
National Petrochemical and Refiners Association (IV-D-33) p. 2
Phillips Petroleum Company (IV-D-20) p. 2
Response to 6.13.1(A)(1): As described in the Technical Support Document, the
environmental benefit associated with our anti-backsliding program is that it
ensures the current overcompliance exhibited in both RFG and CG will be
preserved. This overcompliance will amount to approximately 40,000 tons of
toxics emissions in year 2007. Absent this rulemaking, there is a possibility that
some or all of this overcompliance could fail to manifest in 2007.
In the Notice of Proposed Rulemaking, we proposed a benzene content requirement
in order to capture the significant amount of overcompliance above and beyond
the requirements of the federal reformulated gasoline and anti-dumping
programs. Our preliminary cost analysis predicted that the proposal would
impose only negligible costs. The Agency asked for comment on two other
forms of the today's rule: benzene emissions performance and toxics emissions
performance.
In response to these comments, and based on more detailed refinery modeling
performed for this rule, we are finalizing a toxics performance requirement
instead of a benzene content requirement. The Agency's general rationale is
twofold: a toxics performance requirement captures a larger amount of the
overcompliance with the existing standards and imposes less costs on the
refining industry than the proposed benzene content requirement.
Even though this program does not require new capital investments or changes in
refinery operations, and thus should pose no additional burden on refiners, we
have included a number of compliance flexibilities, such as deficit and credit
carryforward provisions, and a compliance margin, to offset unexpected or
unusual variances in the gasoline quality of a refinery (or importer). For a more
detailed discussion of the refinery modeling for this rule, please see Chapter
7.C. of the Technical Support Document.
The results of our refinery modeling for a benzene anti-backsliding program showed
negligible costs to industry. Additional analysis for RFG and CG under a toxics
performance requirement showed that today's action will impose only negligible
costs. Because today's rule will result in only negligible costs far less than $100
million in any one year to State, local, and tribal governments, in the aggregate
or to the private sector, the Agency is not required to do an analysis under
UMRA. We believe that the analysis of our costs on today's program is
sufficient and we are not required to publish a supplemental notice for comment
on the issue of costs from this program.
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Response to Comments
December 20, 2000
Page 106
(2) EPA's claim to the contrary notwithstanding, EPA has been given information
demonstrating that the proposal will have significant costs. MAP presented
EPA with benzene reduction costs in January 2000. EPA participated in the
National Petroleum Council gasoline and diesel producibility study and is
therefore familiar with the costs to refiners and the loss of flexibility associated
with maintaining RFG toxics performance under an MTBE ban or reduction.
Letters:
Marathon Ashland Petroleum, LLC (IV-D-15) p. 1-2
Response to 6.13.1 (A)(2): When EPA met with MAP in January 2000, the only confidential
business information on costs supplied to EPA at that time was on various
benzene cap programs, not a toxics anti-backsliding program. For more
information on costs due to a toxics anti-backsliding program please see the
TSD, Chapter7.C and the response to 6.13(A)(1). Fora response to comments
on the costs to refiners and the alleged loss of flexibility associated with
maintaining RFG toxics performance under an MTBE ban or reductions, please
see response 6.6(D)(1).
(3) In the 1994 RFG rule, EPA stated that the main control strategies for toxics,
benzene and aromatics are very expensive, in excess of $100 million/CI. EPA
could have imposed more stringent air toxics requirements on RFG, but
expressly declined to do so. Rather, EPA found that the costs of doing so
would far exceed the costs incurred in other programs for the same benefit.
Letters:
American Petroleum Institute (IV-D-21) p. 3
Chevron (IV-D-34) p. 1
Marathon Ashland Petroleum, LLC (IV-D-15) p. 4
Murphy Oil Corporation (IV-D-17) p. 4-5
Phillips Petroleum Company (IV-D-20) p. 2
Response to 6.13.1(A)(3): The RFG program established a toxics emission performance
standard for RFG, and an anti-backsliding toxics standard for conventional
gasoline based on 1990 baseline toxics levels for each refinery. On average,
refiners have overcomplied with the toxics emisisons performance standards for
both RFG and CG. Overcompliance of RFG standards resulted in substantial
toxics reductions beyond what was required by law. We have estimated that the
reduction in the total toxics inventories due to overcompliance was
approximately 70 thousand tons in 1996 and will be approximately 40 thousand
tons in 2007 (see TSD). The cost estimates in the 1994 RFG rule have
obviously proven to be excessive given the fact that refiners have voluntarily
reduced their benzene levels below the RFG requirements. The refinery
modeling that was completed for the toxics performance requirement shows that
we can capture current overcompliance at negligible costs. For a more detailed
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Response to Comments
December 20, 2000
Page 107
discussion of the refinery modeling for this rule, please see Chapter 7.C. of the
Technical Support Document.
(B) The proposed rule places an economic penalty on those refiners that
overcomplied during the baseline period. (See related comments under Issue
6.6.)
(1) EPA states that no refinery capital expenditures or operational changes will be
needed to comply with this proposal because it requires refineries to continue
what they did in 1998-99. However, there are market factors which may require
refiners to change their operations to comply with the proposed regulation. For
example, gasoline benzene levels are dependent on chemical market
economics for benzene production and recovery. A depressed chemicals
market will increase refinery costs to remove benzene. Such factors will
increase compliance costs for refiners with large RFG production volumes, very
low benzene baselines, and little operational flexibility to further reduce benzene
levels. Initial estimates suggest that an incremental baseline reduction of only
0.2% for these refineries can be in the range of 3-4 cents/gallon.
Letters:
National Petrochemical and Refiners Association (IV-D-33) p. 3
Sunoco, Inc. (IV-D-23) p. 1-2
Response to 6.13.1(B)(1): Since we have switched to a toxics performance requirement for
this final rule, refiners will have more flexibility to address fluctuations in the
benzene content of fuel than they would under the proposed benzene content
standard. With regard to refineries that achieved low emissions levels due to
benzene extraction, we do not believe there is any basis for expecting the
benzene market to change in such a way that warrants setting a minimum toxics
performance level. In fact, projections of the benzene market suggest
continued growth (see TSD, Chapter 7.A.3).
We do realize that even for a toxics anti-backsliding program, unusual situations may
happen that can significantly affect refinery operations, and which could cause
the refinery to be out of compliance with its requirement. To this end, we
proposed and are finalizing a one-year deficit carryforward provision. This will
allow a refinery to exceed its anti-backsliding toxics requirement for one year.
In the next year, it must make up the deficit as well as be in compliance for that
year. Additionally, though not proposed, we are also including a one-year credit
carryforward provision. Under this provision, a refinery producing gasoline that
is cleaner than required by its toxics anti-backsliding requirement may bank the
credits from overcompliance to cover any deficit in the following year.
Although we did not propose to include a compliance margin on the fuel benzene
content requirement in the NPRM, additional information gleaned from refinery
modeling and comments has led us to include a compliance margin on the TPS
being finalized today. Though refinery modeling shows that post-2004 RFG
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Response to Comments
December 20, 2000
Page 108
total toxics and CG exhaust toxics emissions in PADDs I and III will, on average,
be lower than during the baseline period, the difference is not large enough to
ensure that refiners won't have to go beyond what our anti-backsliding
requirements strictly call for. Also at this time, we do not know whether the
lower toxics emissions predicted by refinery modeling is true of gasoline in other
PADDs. Thus we have provided refiners with compliance flexibility in several
forms.
(2) Some refiners remove most of the benzene from their reformate streams. The
only way to further lower benzene content is to remove it from the catalytic
cracker gasoline stream, but the science of doing so is not well understood.
The economic penalty for this control will likely be extreme and still have only a
minimal effect on actual benzene levels.
Letters:
Citgo Corporation (IV-D-5) p. 2
Phillips Petroleum Company (IV-D-20) p. 3
Response to 6.13.1(B)(2): Since we have switched to a toxics performance requirement for
this final rule, refiners will have more flexibility to address fluctuations in the
benzene content of fuel than they would under the proposed benzene content
standard.
Our analysis of refinery reports submitted for the years 1997 through 1999 showed
little difference in fuel benzene levels between the years, or for either type of
gasoline, RFG or conventional. Since refiners would have already been
planning ahead for the implementation of the Phase II RFG program in 1999,
one would have expected a difference in either RFG or CG in 1999 compared to
1997 or 1998 if Phase II RFG were to have an impact on benzene levels.
Therefore during the time that refiners will have to comply only with the Phase II
RFG, we do not believe that benzene levels will increase significantly.
In addition, our refinery modeling comparing the year 1999 as a base case year to the
year 2005 as the reference case year (accounting for expected changes in fuel
properties due to Phase II RFG, Tier 2 low-sulfur gasoline and 15 ppm low-
sulfur diesel fuel (based on the proposed HD07 rule)) showed that for CG, the
toxics emissions are likely to remain at or below 1999 levels and that for RFG,
refiners are likely to be able to meet or exceed the new toxics baseline
requirements. Therefore, on average we do not anticipate that benzene levels
will increase significantly for refiners during the implementation of these future
fuels programs. Based on the refinery modeling and analysis presented in
Chapter 7.C of the TSD, we believe that the new toxics performance
requirement finalized in today's action will impose negligible costs on the
refining industry for both RFG and CG.
Because benzene levels are not expected to increase significantly during the early
part of the Phase II RFG program and because the toxics emissions
performance of both RFG and CG is expected to meet or exceed 1999 levels
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Response to Comments
December 20, 2000
Page 109
after implementation of Tier 2 and low-sulfur diesel controls, we do not believe
that it will be necessary for refiners to remove benzene from catalytic cracker
gasoline streams in order to meet the requirements of today's toxics anti-
backsliding program.
(C) Reducing benzene content reduces the quantity of premium gasoline a refiner
can economically produce.
(1) Benzene is a major component in high octane gasoline. Reducing benzene
results in reduced octane gasoline, and cuts overall premium gasoline
production. Another commenter similarly noted that by limiting refiner flexibility
to increase gasoline production, EPA will jeopardize gasoline supplies as
gasoline demand is projected by DOE to increase annually by 1.9%.
Letters:
American Petroleum Institute (IV-D-21) p. 2, 5
Gary Williams Energy Corporation (IV-D-3) p. 2
Response to 6.13.1(C)(1): Contrary to the commenters claims that benzene is a major
component in high octane gasoline, the 1996 API/NPRA survey seems to
indicate otherwise. According to the 1996 API/NPRA survey, Table 1 indicates
that for the total U.S., excluding California, CG premium has 16 percent less
benzene than CG regular, VOC Region 1 RFC premium has 11 percent less
benzene than VOC Region 1 RFC regular, and VOC Region 2 RFC premium
has 1 percent less benzene than VOC Region 2 RFG regular.
Nevertheless, because we have decided not to control incremental volumes in
today's final rule, refinery concerns regarding increased gasoline production due
to increased demand in future years is no longer a concern.
(D) Small refiners will have difficulty complying with this rule given the need to
comply with the MTBE and gasoline sulfur rules at the same time.
(1) Small refiners would have to purchase additional equipment to ensure
compliance with all three sets of standards. It is not clear how they would be
able to obtain financing for the required equipment when all small refiners would
have to meet these standards in the same timeframe.
Letters:
U.S. Small Business Administration (IV-D-26) p. 3
Response to 6.13.1(D)(1): The results of our refinery modeling for the toxics performance
anti-backsliding requirement indicate that the costs of this program will be
negligible. We do not believe that additional significant equipment will be
required to comply with today's toxics performance anti-backsliding requirement
for small refiners. Therefore no extra lead time is required to comply with a
today's final rule. Thus, beginning with the 2002 calendar year, a refinery's or
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Response to Comments
December 20, 2000
Page 110
importer's annual average toxics emissions performance, determined separately
for RFG and CG, cannot exceed its baseline toxics emissions performance,
determined over the three years 1998-2000. The first report associated with
today's rule will be due February 28, 2003, the same date as the reformulated
gasoline and anti-dumping reports are due for calendar year 2002.
(2) Small refiners may be forced to rely on new or unproven performance additives,
or further change refinery production configurations.
Letters:
Countrymark Cooperative, Inc. (IV-D-35) p. 2
Response to 6.13.1(D)(2): We do not agree that this rule, in connection with future controls,
will force small refiners to change their formulations or production
configurations. Our refinery modeling for a toxics performance requirement
indicates that there will no significant impact on small or large refiners from the
Phase II RFG program, Tier 2 low-sulfur gasoline program, and/or the 15 ppm
low-sulfur diesel rule (based on the proposed HD07rule).
We did not conduct a detailed analysis of potential MTBE controls because we are
still currently working on our MTBE proposal and it would be premature to
consider the possible impacts from this effort. Any toxics emissions impacts
associated with a phase-down or phase-out MTBE under the Toxic Substances
Control Act (TSCA) will be considered in that rulemaking.
6.13.2: Benefits
(A) EPA has failed to demonstrate any environmental benefit for moving forward
with this regulation.
(1) Commenter fails to understand the logic or the need for this regulation.
Moreover, EPA has not demonstrated that refiners will fail to continue to over-
comply even without this rule.
Letters:
Marathon Ashland Petroleum, LLC (IV-D-14) p. 1, 4
Response to 6.13.2(A)(1): The statute requires that we adopt controls for at least benzene
and formaldehyde that represent greatest degree of emission reductions
achievable. We believe that the anti-backsliding requirement being
promulgated today is achievable because refiners are already meeting these
levels. A failure to adopt at least this level of toxics control would therefore be
inconsistent with the statutory mandate.
We are not under an obligation to prove that refiners will fail to overcomply in the future with
the current RFG and anti-dumping toxics standards. In establishing an anti-
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Response to Comments
December 20, 2000
Page 111
backsliding program, we are only protecting the environment against the
possibility that the overcompliance exhibited in 1998 - 2000 will degenerate in
the future through increases in fuel benzene content or changes in other fuel
properties. If in reality no changes to fuel properties occur that collectively
would place upward pressure on toxic emissions, our toxic performance
standard will impose no constraints on refiners.
As described in the Technical Support Document, the environmental benefit associated with
this rule is that it ensures that the current overcompliance exhibited in both RFG
and CG will be preserved. We estimate that this preserved overcompliance will
amount to approximately 40,000 tons of toxics emissions in year 2007. Absent
this rulemaking, there is a possibility that some or all of this overcompliance
could fail to manifest in 2007.
(2) EPA acknowledges in the NPRM that the proposal is not expected to reduce
emissions beyond what is currently being achieved. One must conclude from
this assessment that public health is already being adequately protected. In
fact, EPA's "Latest Findings on National Air Quality: 1999 Status and Trends"
states that benzene levels in 84 urban areas dropped 39% from 1993 to 1998,
and EPA anticipates a 75% drop in key toxics from highway vehicles by 2020.
Letters:
American Petroleum Institute (IV-D-21) p. 1, 4
American Petroleum Institute (IV-F-1) p. 33
ExxonMobil (IV-D-16)p. 1
Murphy Oil Corporation (IV-D-17) p. 4
Phillips Petroleum Company (IV-D-20) p. 2
Response to 6.13.2(A)(2): It is true that ambient benzene concentrations have dropped in
recent years. Future reductions in total HC emissions due to the rollout of new
vehicle, engine, and fuel standards are predicted to result in continuing
reductions in toxics emissions. For these reasons and others, we have
determined that the most appropriate toxics control program to implement at this
time is one that preserves the reductions resulting from overcompliance with the
RFG and anti-dumping standards.
However, despite the expectation that programs currently in place will reduce inhalation
exposure to gaseous air toxics from highway mobile sources by about 50% in
2007 and 60% in 2020, relative to 1996 levels, mobile sources will continue to
be major contributors to exposure and risk from outdoor sources of air toxics.
Unfortunately, there are many data gaps which prevent us from fully
characterizing risks. As we address these data gaps over the next few years we
will evaluate what additional controls may be needed to adequately protect
public health. As a result we have decided to include a commitment in this
rulemaking to conduct further investigation into these issues in a Technical
Analysis Plan, and to promulgate additional toxic emission standards by July,
2004 if we deem them appropriate.
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Response to Comments
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(3) According to EPA's "Summary of Peer Reviews of Motor Vehicle-Related Air
Toxics Study", one independent scientist stated that "there appears to be no
cause for a public health concern for cancer from exposure to mobile vehicle
exhaust, and it would seem that the agency could use its resources more
productively on matters of higher concern."
Letters:
American Petroleum Institute (IV-D-21) p. 1
American Petroleum Institute (IV-F-1) p. 34
Murphy Oil Corporation (IV-D-17) p. 5
Response to 6.13.2(A)(3): We do not believe that the existing data on toxics emission rates
from vehicles and engines, correlations between fuel properties and toxics
emissions, ambient concentrations of toxic pollutants and exposure to those
pollutants is sufficiently robust for us to conclude that no public health concern
exists. As a result we have established a Technical Analysis Plan to further
investigate these issues. In the meantime we are promulgating an anti-
backsliding program that is designed to preserve the emission benefits
associated with overcompliance with the RFG and anti-dumping programs, and
that represents the greatest degree of emissions reductions achievable in the
short term.
6.14: Other Fuel Issues
6.14.1: Anti-dumping Program
(A) EPA should repeal the antidumping requirements for CG after the proposed
benzene standard and Tier 2 sulfur controls go into effect.
(1) Commenter provided no further supporting information or detailed analysis.
Letters:
Marathon Ashland Petroleum, LLC (IV-D-15) p. 8
Sunoco, Inc. (IV-D-23) p. 3
(2) With the MSAT standards and the Tier 2 rule, the anti-dumping regulations will
be unnecessary. Compliance with the Tier 2 and benzene standards will meet
or exceed the NOX and exhaust toxics specifications required by the
antidumping regulations, allowing refiners to save on analytical testing and
recordkeeping.
Letters:
American Petroleum Institute (IV-D-21) p. 9
Citgo Corporation (IV-D-5) p. 4
ExxonMobil (IV-D-16) p. 9-10
Phillips Petroleum Company (IV-D-20) p. 5
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Response to Comments
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Placid Refining Company, LLC (IV-D-2) p. 3
(3) If the new anti-backsliding gasoline benzene regulations are effective in 2002,
then the anti-dumping exhaust toxics regulations should be repealed effective
January 1, 2002. However, the reports for 2001 anti-dumping compliance
should still be submitted to EPA in 2002.
Letters:
National Petrochemical and Refiners Association (IV-D-33) p. 12
Response to 6.14.1(A)(1), (A)(2), and (A)(3): We are not repealing the anti-dumping
program. The anti-dumping program is required by the Clean Air Act and we
cannot ensure that today's requirements and the Tier 2 gasoline sulfur
requirements will exactly duplicate the anti-dumping program. For example, the
gasoline sulfur standards do not guarantee that all conventional gasoline will
meet the individual NOx performance standards because some anti-dumping
individual baselines have even lower average sulfur levels than the gasoline
sulfur program will require. Additionally, the flexibilities provided in today's rule,
such as deficit and credit carryforward, could cause the anti-backsliding toxics
emissions performance for certain refineries to exceed their anti-dumping toxics
performance requirement in a given year. Finally, because the anti-dumping
statutory baseline becomes a part of a refinery's anti-dumping compliance
determinations when the refinery's annual production exceeds its 1990 baseline
volume, depending on the refinery's baseline, it's standard for that year could be
more stringent than the anti-backsliding requirement.
(B) Opposes NPRA suggestion to eliminate the CG antidumping program because
it is vitally important that conventional gasoline be protected from increased
benzene levels that could result from the proposed program.
(1) Instead, CG benzene limits should be set at 1998-99 baseline levels for each
refinery.
Letters:
Bluewater Network (IV-D-29) p. 2
Response to 6.14.1(B)(1): See response to 6.14.1 (A)
(C) EPA should consider eliminating the anti-dumping requirements only if there
are no negative gasoline quality, vehicle emissions or air quality impacts.
(1) Commenter provides no further supporting information or detailed analysis.
Letters:
Tosco (IV-D-41)p. 4
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Response to Comments
December 20, 2000
Page 114
Response to 6.14.1(C)(1): See response to 6.14.1 (A)
6.14.2: Other Fuel Specifications
(A) EPA should address other fuel components in addition to benzene.
(1) First, EPA should cap the Distillation Index at 1200 which would further reduce
benzene emissions during cold start. EPA should also cap levels of polynuclear
aromatic compounds in diesel fuel at 2% by volume to reduce tailpipe benzene
emissions. Finally, EPA should adopt the rest of the recommendations in the
World Wide Fuels Charter.
Letters:
Alliance of Automobile Manufacturers (IV-D-11) p. 5-6
Alliance of Automobile Manufacturers (IV-F-1) p. 63
Response to 6.14.2(A)(1): Controls on the Distillation Index (Dl) of gasoline may result in
reductions in HC emissions, which in turn would reduce toxics emissions.
However, toxics are a very small portion of total HC emissions, so that
controlling Dl for the purposes of reducing toxics emissions would be highly
cost-ineffective. We received a petition in January 1999 requesting that we
control Dl for the purposes of reducing tailpipe HC emissions14. We intend to
conduct a more thorough review of that petition early in 2001 and will at that
time determine if Dl controls are warranted.
As described in Chapter VII of the the Draft Technical Support Document, benzene
emissions from gasoline-powered vehicles far exceeds that from diesel
vehicles; in 1997, highway emissions of benzene from gasoline-powered
vehicles were estimated to be over 50 times higher than diesel-based emissions
of benzene. Insofar as benzene represents a toxic pollutant meriting control,
therefore, it is much more efficient to target benzene emissions from gasoline-
powered vehicles. Regardless, we do not currently have any correlations
between aromatic compounds in diesel fuel and the associated benzene
emissions, and so are not in a position to place controls on polynuclear aromatic
compounds in diesel fuel.
The World Wide Fuels Charter represents a selection of fuel specifications which
manufacturers have decided would maximize the efficient operation of their
vehicles and engines. The EPA has not received a formal petition requesting
that all elements of the World Wide Fuels Charter be adopted into regulation.
Certainly we are aware of no analyses indicating how adoption of all elements
of the World Wide Fuels Charter would affect emissions of toxics pollutants.
However, we continue to evaluate the benefits and cost-effectiveness of various
14 "Petition To Regulate Gasoline Distillation Properties," submitted by DaimlerChrysler Corporation, Ford
Motor Company, General Motors Corporation, and the Association of International Automobile Manufactuers.
January27, 1999. EPA Air Docket A-97-10, document number I l-G-286.
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Response to Comments
December 20, 2000
Page 115
fuel control options, and future actions may include new or amended fuel
controls as we deem them appropriate.
(B) EPA fails to account for the roles of toluene, xylene and higher aromatics in the
formation of benzene.
(1) These compounds are precursors to benzene, and can be readily formed by the
catalytic converter. These compounds also are usually deliberately synthesized
in the fuel to increase fuel octane.
Letters:
NESCAUM (IV-D-9) p. 8-9
Response to 6.14.2(B)(1): We agree that benzene analogs such as toluene and xylene will
contribute to the formation of benzene emissions. However, we do not currently
have any means for correlating specific changes in the fuel concentration of
these compounds with benzene emissions. In addition, the available
information on the concentration of these benzene analogs in gasoline is quite
limited. The Complex Model does permit us to estimate the impacts of changes
in total aromatics content on benzene emissions, though as discussed in our
response to issue 6.5.3(B)(1), the impact of aromatic compounds on benzene
emissions is far less than the impact of fuel benzene content on benzene
emissions. It was for this reason that we proposed controls on fuel benzene
content in ourNPRM.
Still, we recognize that properties other than fuel benzene content can affect emissions of
toxics compounds. This is one reason that we have decided to finalize a toxic
performance requirement instead of the benzene content standard we
proposed. As a result, it will not be necessary to account specifically for the role
of toluene and xylene in the formation of benzene emissions, but instead such
impacts will be taken into account implicitly when refiners comply with their 1998
- 2000 toxics emissions baselines.
(C) EPA should expand the rule to include all aromatic compounds in gasoline.
(1) Lowering aromatic levels in gasoline will significantly reduce these pollutants, as
well as directly reduce CO2 emissions. This is especially important in the
context of a likely national phase-out of MTBE (which the commenter supports).
Without MTBE, refiners are likely to consider increasing aromatic content to
replace octane loss. EPA should adopt an anti-backsliding requirement for all
aromatics that mirrors the approach taken for benzene. Another commenter
raised general concerns about the potential for increased toxics from other
sources with a phase-out of MTBE.
Letters:
Bluewater Network (IV-D-29) p. 1-2
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Response to Comments
December 20, 2000
Page 116
Michigan Environmental Council (IV-F-1) p. 68
Response to 6.14.2(C)(1): The EPA is committed to ensuring that any change in the
regulatory requirements regarding MTBE are promulgated in such a way that
the current and predicted future emission benefits of overcompliance with the
RFG and anti-dumping standards are preserved. The anti-backsliding program
that we are finalizing today will apply even if MTBE is phased-out. Although our
anti-backsliding program does not place controls on the benzene or aromatic
content of the fuel specifically, it does ensure that toxics emissions from both
RFG and CG can be no higher than they were in 1998 - 2000. As a result we
do not believe it is necessary to place individual controls on both the benzene
and aromatic contents of gasoline. Note that the forthcoming rulemaking on the
MTBE phaseout will address the issue of toxics emissions in the context of
octane corrections that may be necessary if MTBE is phased-out.
(D) EPA needs to evaluate fuel control options to regulate other toxic compounds
that contribute to unacceptable health risks, such as 1, 3-butadiene,
formaldehyde, and aromatics.
(1) Commenter provides no detailed analysis supporting this point.
Letters:
NESCAUM (IV-D-9)p. 7
Response to 6.14.2(D)(1): As described in the preamble, we have determined that an anti-
backsliding program which preserves the toxics overcompliance benefits
exhibited in 1998 - 2000 is most appropriate for this rulemaking. The most
comprehensive approach to preserving those overcompliance benefits is to
ensure that toxics emissions, as measured by the Complex Model, are no
higher in the future than they were in 1998 - 2000. Using this approach we
capture not only benzene emissions, but also 1,3-butadiene, formaldehyde,
acetaldehyde, and polycyclic organic matter. Currently we do not have any
precise means for evaluating the impact of fuel properties on emissions of
aromatic compounds, so we cannot place controls on aromatic compounds
specifically at this time. However, we believe that our anti-backsliding program,
with its focus on toxics performance, places controls on the primary toxic
compounds that are emitted from gasoline-powered vehicles and engines.
(E) If not well coordinated, conflicting fuel requirements could reduce refinery
flexibility without providing added environmental benefits.
(1) EPA should carefully coordinate this proposal with other rulemakings such as
MTBE, new renewable fuel requirements, and other toxics/aromatics limits on
RFG. The commenter noted that EPA specifically must coordinate the anti-
backsliding provision with other proposals that would add more stringent RFG
aromatics and toxics standards.
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Response to Comments
December 20, 2000
Page 117
Letters:
Tosco (IV-D-19)p. 2
Response to 6.14.2(E)(1): We have evaluated the costs and benefits of ouranti-backsliding
program by taking into account all promulgated programs. This approach is
consistent with the approach taken for past rulemakings; whenever a new
control program is proposed, it must be evaluated within the context of the other
controls programs that we know will be in effect at the same time.
For potential future control programs which are not yet promulgated and thus have yet to be
clearly defined, such an evaluation is very imprecise and in fact can lead to
erroneous results if the final program differs substantially from the proposed
program. It is incumbant upon authors of control programs which have yet to be
finalized to calculate the costs and benefits of their program in the context of
those control programs that are already promulgated. As a result, we have not
evaluated the costs and benefits of ouranti-backsliding program under the
assumption that MTBE will be phased-out, a renewable fuel requirement will be
implemented, or other toxics or aromatics limits will be placed on gasoline. All
of these potential programs are as yet unspecified and thus cannot form the
basis of a comparative analysis. On the contrary, when evaluating the impacts
of an MTBE phaseout, for example, EPA must do so assuming that the anti-
backsliding program for toxics is already in place, since the program in today's
final rulemaking will be promulgated before any MTBE phaseout program is
finalized. You should review the analyses in the forthcoming MTBE phaseout
rulemaking to determine how we have evaluated the coincident impacts of our
anti-backsliding program and the MTBE phaseout program on costs and
environmental benefits.
6.15: SBREFA and Small Refiner Flexibility Options
(A) EPA should initiate a SBREFA process.
(1) This rule is expected to impose significant costs on small refiners already
subject to Tier 2 gasoline requirements. Also, the "no-cost" analysis does not
factor in the anticipated MTBE phase-out or that other regulations may
disproportionately impact small refiners. [See related comments under Issues
6.6 and 6.13.1.]
Letters:
Gary Williams Energy Corporation (IV-D-3) p. 3
Placid Refining Company, LLC (IV-D-2) p. 1
Response to issue 6.15(A)(1): EPA disagrees with this comment. The Agency performed
refinery modeling for this rulemaking. Based on the results of the refinery
modeling, the Agency concluded that this rule is not expected to impose
significant costs on refiners, large or small, after Phase II RFG, Tier 2 low sulfur
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Response to Comments
December 20, 2000
Page 118
gasoline and the heavy-duty vehicle low sulfur diesel fuel are taken into
account. MTBE phase out, or phase down, is too uncertain and unspecified at
this time. When and if a rule on MTBE is proposed, the new baseline
requirements established in this rule will be taken into consideration when
developing cost estimates for that rule.
(2) SBREFA requirements are applicable and must be engaged if small business
refiners are held to some future benzene standard established using an
inappropriate baseline time period during which EPA required oxygenate use,
which now appears likely to be followed by a period in which oxygenate use will
be prohibited or curtailed.
Letters:
Kern Oil & Refining, Inc. (IV-D-31) p. 4-5
Western Independent Refiners Association (IV-D-40) p. 3
Response to issue 6.15(A)(2): This rule will not impose a significant impact on a substantial
number of small entities (see response to 6.15(A)(1)). Therefore, the
SBREFA/RFA requirements for convening a panel and preparing a regulatory
flexibility analysis are not triggered by this rulemaking.
(B) Small refiners should be exempt from the proposed regulation.
(1) The total volume of small refiners' gasoline is a very small percentage of the
total U.S. consumption. Any impact of this proposal on small refiners will be
disproportionately greater than on large refiners, and by EPA's own admission,
existing controls are reducing benzene emissions.
Letters:
Placid Refining Company, LLC (IV-D-2) p. 2
Response to issue 6.15(B)(1): EPA does not dispute the fact that small refineries do not
produce a large portion of total US domestic consumption. However, as
described in the preamble, we are implementing an anti-backsliding program for
toxics emissions that are expected to have only negligible costs. As a result we
are applying the program to all refiners.
(C) Supports an exemption from Phase I requirements for small refiners.
(1) Small refiners should be exempt from anti-backsliding standards until at least
2004 when EPA has completed further review. A one-step approach is
important so that small refiners can plan investment, engineering and
construction for a final standard. Phase-in approaches impose burdensome
and unnecessary equipment installation and expenditure. Also, because small
refiners contribute such a small fraction to the benzene problem or hot spots of
pollution, there is no need to include them in the first phase.
Letters:
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Response to Comments
December 20, 2000
Page 119
Gary Williams Energy Corporation (IV-D-3) p. 3
Response to issue 6.15(C)(1): This anti-backsliding rule will not require refineries to invest
in new equipment. See our response to issue 6.13.1(D)(2).
(2) EPA should defer consideration of any anti-backsliding standards for small
refiners until 2003-04. A delay would allow EPA to study the impact of this rule
on the balance of the industry and to understand its interaction with the gasoline
sulfur rule and any MTBE phase-down.
Letters:
U.S. Small Business Administration (IV-D-26) p. 4
Response to issue 6.15(C)(2): EPA sees no reason to delay promulgation of these
regulations. Refinery modeling conducted for the rule shows that for PADDs I
and III, refineries are likely to incur only negligible costs.
(D) EPA should provide for a two-year moratorium in the effective date for small
refiners.
(1) Commenter provided no further supporting information or detailed analysis.
Letters:
Countrymark Cooperative, Inc. (IV-D-35) p. 3
Response to issue 6.15(D)(1): Since our anti-backsliding program is expected to impose
only negligible costs on refiners and will require no capital investments, we do
not believe that small refiners need additional time to prepare for compliance.
Therefore, we have imposed the same effective date on all refiners.
(E) Small refiners, and those refiners in Tier 2 geographic phase-in areas, should
be allowed to establish their baseline periods after they reach compliance with
the Tier 2 rule to account for potential baseline increases from Tier II
compliance efforts.
(1) This is especially important for small refiners that install Tier II gasoline
processing facilities prior to the 2008 deadline.
Letters:
Murphy Oil Corporation (IV-D-17) p. 2
Response to issue 6.15(D)(1): It is true that reductions in gasoline sulfur content tend
also to result in increases in fuel benzene content due to the octane corrections
that are often required in conjuction with desulfurization. However, according to
the modeling described in Chapter VII of the Technical Support Document, on
average toxics emissions are predicted to go down after the low sulfur standard
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Response to Comments
December 20, 2000
Page 120
of 30 ppm is implemented. Since we are finalizing a toxics performance
requirements instead of a benzene content standard, we do not expect the Tier
2 sulfur standard to impose a burden on refiners in terms of complying with their
1998 - 2000 toxics performance levels. Therefore, we have made no provision
for any refiners to establish or re-establish their baselines after they reach
compliance with the 30 ppm sulfur standard.
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Response to Comments
December 20, 2000
Page 121
ISSUE 7: TECHNICAL ANALYSIS PLAN
(A) Supports EPA's decision to continue mobile source air toxics research.
(1) Commenter provides no further supporting information or detailed analysis.
Letters:
Association of International Automobile Manufacturers (IV-D-7) p. 1
(2) Commenter supports EPA's proposed review of in-use air toxic emissions and
its intention to consider additional measures in the future.
Letters:
Oregon Environmental Council (IV-D-9) p. 1
(3) EPA should form a close partnership with HEI as it progresses with the TAP in
order to provide an objective, independent resource to conduct the literature
reviews and research necessary to assist EPA in determining which pollutants
might be of public health concern.
Letters:
Alliance of Automobile Manufacturers (IV-D-11) p. 2
Alliance of Automobile Manufacturers (IV-F-1) p. 60-62
(4) The plan will provide the necessary research and analysis to help determine key
sources of individual toxics and risks associated with these toxics.
Letters:
Alliance of Automobile Manufacturers (IV-D-11) p. 2
Alliance of Automobile Manufacturers (IV-F-1) p. 60
(5) However, EPA should include appropriate provisions addressing the research
agenda for onroad and non-road sources in the proposed rule itself, otherwise
there will be no explicit commitment to carry out this research. It is essential
that EPA make a clear regulatory commitment to perform a comprehensive risk
characterization and control determination regarding the collective emissions
from road and non-road mobile sources and their fuels. EPA should follow
through with the commitments to conduct a comprehensive assessment by
placing them in the regulatory text of the final rule.
Letters:
NESCAUM (IV-D-10)p. 3, 15-16
NESCAUM (IV-F-1) p. 24-26
STAPPA, ALAPCO (IV-D-22) p. 4
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Response to Comments
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Page 122
STAPPA, ALAPCO (IV-F-1) p. 48-49
(6) It is very important that EPA continues periodically to assess the effect that the
proposed rules have on concentrations of mobile toxics nationwide and their
impacts on public health, particularly children's health. Commenter agrees that
a 3-year cycle for conducting ongoing assessments as proposed by a second
commenter may be appropriate.
Letters:
American Lung Association of Michigan (IV-F-1) p. 74-75
Michigan Environmental Council (IV-F-1) p. 69
Response to issues 7(A)(1) through (6): v«
w - M£—«MB> - It is important to note that the Technical
Analysis Plan will not answer all relevant questions regarding the potential
impacts of mobile sources on public health risks due to exposure to toxic
compounds. The Technical Analysis Plan will provide important pieces of the
key studies necessary to help evaluate potential risks associated with several
important Mobile Source Air Toxics.
The Agency has made a regulatory commitment to reevaluate the need for and
technical feasibility of additional controls on on-highway mobile sources in the
2003-2004 timeframe. That re-evaluation will, by necessity, require significant
allocation of resources to attempt to fill data gaps identified in the Technical
Analysis Plan. Over the past several years, the Agency has redirected
significant resources to better understand ambient concentrations, exposure
and risk associated with air toxics from all sources, including mobile sources.
Examples include the Cumulative Exposure Project which estimated ambient
concentrations of air toxics for the calendar year 1990, and the ongoing National
Air Toxics Assessment National-Scale Analysis which analyzes 1996 ambient
concentrations and inhalation exposures, and also conducts a characterization
of inhalation risks. The Agency fully intends to use these important previous
studies as screening tools to direct our future efforts in air toxics assessments.
While it is inappropriate to place the Agency's Technical Analysis Plan as
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Response to Comments
December 20, 2000
Page 123
articulated in the preamble into the actual regulatory document, the Agency
commitment to the Technical Analysis Plan is real and its commitment to a
future rulemaking is identified in the regulatory document.
— H& — [*•& The Agency plans to periodically update this
assessment. This would include revisions to the National Toxics Inventory and
the National-Scale Analysis based on newly available information.
The Agency has developed a strategy for research on environmental risks to children.
For more information see: http://www.epa.gov/nceawww1/risk2kids.htm.
(B) EPA fails to describe a research plan to continue to analyze MSATs.
(1) EPA has vaguely described data gaps without any serious plan to address
those gaps. Without a detailed research plan, the Agency will be in the same
position in 2004 as it is now. It is not even clear that the Agency requested
funding for NATA activities. Commenter notes that EPA should not rely on the
public to conduct this sort of research, and EPA should not settle for a handful
of poorly funded and limited tests to comprise its understanding of MSATs and
their health effects. Engine and vehicle manufacturers should be required to
conduct emissions testing of on-road and nonroad engines to fill the information
void.
Letters:
Consumer Policy Institute (IV-D-8) p. 3
Response to issue 7(B)(1): We have described a research plan to address the most critical
data gaps in our understanding of the potential health impacts of public
exposure to air toxics from mobile sources. We are coordinating work
underway within and outside the Agency regarding exposure monitoring,
modeling, and emissions characterization to provide the most comprehensive
analysis available in the 2003-2004 timeframe. As discussed above (Response
to issue on issue 7, section (A)(1) through (A)(6)), » — *r-
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Response to Comments
December 20, 2000
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These
long-term efforts will provide substantial information on which to base future
regulatory decisions.
(C) EPA needs to modify the proposed treatment of non-road engines in the TAP.
(1) More information regarding air toxic emissions from non-road sources is
needed. Commenter supports EPA's decision to develop a TAP to study non-
road sources' contribution to ambient conditions because it makes sense to
gather the needed information before acting to establish controls that might not
be needed or would not be effective. Another commenter, however, argued that
the timeframe for the TAP was inconsistent with analyzing emissions from non-
road engines. There are a number of regulatory efforts that will affect emissions
from non-road engines, and EPA should wait until those requirements take
effect before attempting to study toxic emissions from non-road engines.
Letters:
Engine Manufacturers Association (IV-D-39) p. 7, att.
Engine Manufacturers Association (IV-F-1) p. 16-17
North American Equipment Dealers Association (IV-D-37) p. 2
Response to issue 7(C)(1): We currently have very little data regarding the emissions of
toxic compounds from nonroad sources. We are in the process of gathering
this information to assess the impact of these emissions on national and local
inventories, ambient concentrations, exposures and ultimately on the risk to the
public. We disagree that collection of this information can wait since the
information is needed to determine the need for additional regulatory controls
and to establish an understanding of baseline emissions.
(2) More research is needed to identify feasible and cost effective control
technologies applicable to the different and difficult demands of non-road
engines. Commenter notes that any study of nonroad emissions must
individually subcategorize the different categories of nonroad engines due to
significant differences in engine structure, fuel, and performance.
Letters:
North American Equipment Dealers Association (IV-D-37) p. 2
(3) At a minimum, small land-based SI engines should be excluded from further
study because these sources are an insignificant source of toxic emissions,
especially after considering recent regulatory controls on these sources.
Letters:
North American Equipment Dealers Association (IV-D-37) p. 3
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Response to Comments
December 20, 2000
Page 125
Responses to issues 7(C)(2) and (3): We agree that additional research is needed to
identify feasible and cost effective control technologies applicable to nonroad
engines and we are currently looking into control area network devices,
electronic control and feedback of engine operations, and exhaust gas re-
circulation. As with our current regulatory program for non-road engines, an
assessment of emissions from these engines is broken into categories based
on the horsepower of the engine. We are not determining a priori which, if any
engines will be excluded from further study.
(D) VOCs are on the decline, and EPA should assume that other MSATs are on the
decline as well. Therefore, EPA should consider whether it is cost-effective to
carry on with a study of non-road engines as indicated in the proposal.
(1) If EPA sees a correlation between VOCs and other gaseous MSATs, then this
proposed rule should be withdrawn. If EPA follows through with this rule and
the study, then the MSATs should be studied and listed specifically in relation to
each non-road engine category.
Letters:
North American Equipment Dealers Association (IV-D-37) p. 3
Response to issue 7(D)(1): In order to understand the potential public health impact of
emissions of toxic compounds from nonroad engines we need to understand the
specific chemical composition of the VOCs emitted and our Technical Analysis
Plan includes work that will provide this information. MSATs studied will be
determined based on the type of engine, horsepower of the engine tested, and
operating conditions. These tests results will be extrapolated to other engines
as appropriate.
(E) EPA must also address indoor sources of toxics.
(1) From an exposure and risk perspective, toxics generated by indoor sources may
likely be the most important health concern, especially since people spend
nearly 90% of their time indoors. Because of their importance, it is imperative
that EPA incorporate and integrate indoor air toxic exposures into the TAP,
UAT, and NATA assessments.
Letters:
Alliance of Automobile Manufacturers (IV-D-11) p. 6
Alliance of Automobile Manufacturers (IV-F-1) p. 63
Response to issue 7(E)(1): We agree with the commenterthat more research is needed.
The Agency plans to assess the emissions of toxic compounds by indoor
sources and ultimately to assess the overall impact of these sources on
exposure. The Office of Radiation and Indoor Air is currently developing an
indoor air toxics strategy.
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Response to Comments
December 20, 2000
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(F) EPA should address emissions toxicity of other fuel/vehicle types.
(1) EPA needs to include analysis of other vehicle/fuel types (Such as CNG) to
evaluate toxics emissions from these vehicles. Policymakers often mistakenly
assume alternative fueled vehicles have zero toxic emissions. More research
on this issue is necessary so that future diesel technology can compete fairly
with other alternative technologies in producing ultra-low engine emissions.
Letters:
Tosco (IV-D-41)p. 2
Response to issue 7(F)(1): We agree with the commenterthat analysis of the toxic
emissions from alternative fueled vehicles is important and we do not make the
assumption that alternative fueled vehicles have no toxic emissions. We agree
that additional research is necessary on this issue and we will follow the results
of this work. The Department of Energy, Center for Transportation Research is
doing work in this area, and has recently released an assessment of fuel cycle
emissions for conventional and alternative fueled vehicles.15 The Agency is
evaluating the implications of this work.
(G) The proposed rulemaking should have included a provision for monitoring of
HAP emission reductions.
(1) By establishing a system of monitoring sites in cities throughout the country, and
comparing actual HAPs monitoring data to predictions of emissions reductions,
EPA could have the ability to evaluate the effectiveness of various control
programs and strategies on an on-going basis. If such a proposal was included
as part of this rulemaking, more information would be available in 2004.
Another commenter generally supports increased monitoring of HAPs to assist
EPA's ongoing evaluations of MSATs.
Letters:
Consumer Policy Institute (IV-D-8) p. 3
Michigan Environmental Council (V-F-1) p. 69
Response to issue 7(G)(1): We agree that a system of monitoring sites throughout the
country would be beneficial. We are providing funds for some such studies to
be initiated in ten areas of the U.S. (Providence, Rl, Seattle, WA, Tampa Bay,
FL, Detroit, Ml, San Jacinto, CA, Grand Junction, CO, Cedar Rapids, IA, Rio
Rancho, MN, Charleston/Huntington, WV, and San Juan/Barceloneta, PR).
15Winebrake et al. 2000. Fuel Cycle Emissions for Conventional and Alternative Fuel
Vehicles: An Assessment of Air Toxics. Department of Energy, Center for Transportation
Research, Argonne National Laboratory. Report No. ANL/ESD-44.
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Response to Comments
December 20, 2000
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ISSUE 8: PROPOSED FUTURE RULEMAKING
(A) EPA should include in the final rule a commitment to study MSATs and to
promulgate further rules.
(1) Commenter provides no further supporting information or detailed analysis.
Letters:
Puget Sound Clean Air Agency (IV-D-27) p. 2
Response to issue 8(A)(1): The rule satisfies the commenter's request.
(B) Commenter concurs with EPA's assessment, reflected in section 80.825 that it
may be appropriate to revisit emissions of HAPs from mobile sources in 2003.
(1) Commenter supports EPA's proposal to limit only benzene at the current time,
and determine in 2003 whether additional controls may be warranted at that
time.
Letters:
International Truck and Engine Corp. (IV-D-30) p. 3
Response to issue 8(B)(1): We agree. Although we have changed the control from a
benzene content standard to a toxics performance standard, we have
maintained the same general approach in setting a near-term anti-backsliding
standard and committing to further investigate long-term controls.
(C) Because they are significant contributors to MSATs, EPA should address in its
future rulemaking the pollution from non-road engines and vehicles.
(1) As on-road standards are phased in, non-road sources will become increasingly
significant contributors to MSATs. EPA needs to articulate a detailed plan for
addressing these sources.
Letters:
Clean Air Network, et al (IV-D-38) p. 4
Consumer Policy Institute (IV-D-8) p. 4
Response to issue 8(C)(1): The final rule articulates a plan to address emissions from
nonroad sources.
(2) EPA's intent to include those sources in the future should be stated clearly in
the final rule.
Letters:
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Response to Comments
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Commonwealth of MA DEP (IV-D-13) p. 2
STAPPA, ALAPCO (IV-D-22) p. 5
Response to issue 8(C)(2): The final rule clearly states the Agency's intent to address
emissions from nonroad sources in a future rule.
(D) EPA has predetermined the need for a rulemaking before it has evaluated the
underlying facts.
(1) It is inappropriate to publish a schedule for future rulemaking after declaring
EPA lacks sufficient information to support a future rulemaking. EPA should
study toxics, determine the need for a rulemaking, and only then establish a
timetable.
Letters:
American Petroleum Institute (IV-D-21) p. 5-6
American Petroleum Institute (IV-F-1) p. 38
ExxonMobil (IV-D-16) p. 8-9
Koch Petroleum Group (IV-D-36) p. 3
Marathon Ashland Petroleum, LLC (IV-D-15) p. 2, 6-7
Murphy Oil Corporation (IV-D-17) p. 6
Phillips Petroleum Company (IV-D-20) p. 4
Response to issue 8(D)(1): EPA has sufficient reason for concern about the potential risks
related to air toxics to commit to a future rulemaking in 2003-2004. However,
our commitment to that future rulemaking is to reevaluate the need and
technical feasibility of additional controls on mobile source air toxics. The action
we take at that time will depend on the results of the research we will undertake
as part of our Technical Analysis Plan. Based on that analysis, if no controls
are deemed appropriate for on-highway vehicles or fuels, the rulemaking will
confirm that the existing controls satisfy the criteria in Section 202(l)(2) of the
Act.
(2) EPA should not commit to a further rulemaking in 2004 until it analyzes the air
toxics research conclusions to determine the need for another rulemaking. EPA
should examine and assess new information regarding the proposed rule at
some time in the future. However, the timing of such a review and the need for
additional rulemaking should be based upon the Agency's continuing evaluation
and monitoring of MSAT trends as well as the results of the TAP. The TAP
should be completed and all information reviewed to determine if there is a need
for any additional rulemaking. If a need is identified, a rulemaking can be
initiated at that time. Otherwise, additional data from the studies may show there
is no need for a rule, and yet the commitment would otherwise still exist.
Letters:
Alliance of Automobile Manufacturers (IV-D-11) p. 9
Alliance of Automobile Manufacturers (IV-F-1) p. 65
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Response to Comments
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Engine Manufacturers Association (IV-D-39) p. 7-8, att.
Response to issue 8(D)(2): As discussed in the response to the previous issue, the
commitment we are making in this fule rule is to reevaluate the need and
technical feasibility of additional controls on mobile source air toxics. The
Agency is not committing to promulgate new controls. If no controls are
deemed appropriate for on-highway vehicles or fuels, the rulemaking will
confirm that the controls promulgated at that time satisfy the criteria in Section
202(l)(2) of the Act. The decision to regulate will depend on the outcome of
future data analysis and research.
(E) EPA's proposal to engage in a future rulemaking cannot satisfy the
requirements of CAA section 202(1).
(1) The text and the legislative history of the CAA contemplate that additional,
aggressive action be taken to address MSATs in the current rulemaking.
Letters:
Environmental Systems Products (IV-D-25) p. 12-13
Response to issue 8(E)(1): The Agency agrees that a commitment to a future rulemaking
does not satisfy its requirements under section 202(1). The Agency views its
obligation under 202(1) as requiring a periodic reevaluation of the need for and
technical feasibility of additional controls on motor vehicles.
(F) EPA does not have the authority under section 211 (c) or any other provision of
the CAA to promulgate a rule establishing deadlines for future administrators
to conduct rulemakings.
(1) The commenter points to several examples to document that where Congress
intends for the statute to impose deadlines, Congress specifies the deadline in
the statute. EPA cannot in this rulemaking do what Congress has specifically
chosen not to do.
Letters:
American Petroleum Institute (IV-D-21) p. 6
Response to issue 8(F)(1): We disagree. The regulatory commitment in section 80.825 of
the regulations is reasonable and entirely within EPA's authority. Nothing in the
Clean Air Act limits EPA's discretion to set timetables for itself to complete non-
mandatory regulatory actions, so long as those timetables are consistent with
any mandatory statutory deadlines. One example of a similar regulatory
deadline EPA has imposed on itself is codified at 40 C.F.R. § 86.004-
11(a)(1)(i)(E) (setting schedule for regulatory review of the on-highway heavy-
duty engine standards).
(G) Opposes the proposed timeline for the future rulemaking.
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Response to Comments
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(1) EPA lacks statutory authority to extend a rulemaking deadline that it has already
failed to meet.
Letters:
National Petrochemical and Refiners Association (IV-D-33) p. 4
Response to Issue 8(G)(1): As noted in the response to issue 2.1(A)(1), EPA has a
continuing obligation under the statute to periodically revise regulations
established pursuant to Section 202(l)(2). Section 202(l)(2) clearly states that
EPA shall "promulgate (and from time to time revise" regulations..." In other
words, Congress intended EPA to consider control of emissions of hazardous
air pollutants from motor vehicles and their fuels as an ongoing air pollution
issue.
(2) The proposed two-year study schedule does not provide sufficient time for EPA
to adequately assess the impacts of existing and upcoming controls on toxic
emissions.
Letters:
American Petroleum Institute (IV-D-21) p. 6
Response to issue 8(G)(2): The agency routinely projects emissions reductions from
control programs that have not been fully implemented. Today's rule quantifies
expected future reductions, and we will be able to do so in two years as well.
Moreover, in the next two years, we will have better information on inventory,
exposure, and risk, since we will be focusing on acquiring this information as
part of our Technical Analysis Plan.
(3) EPA should amend their schedule so that final standards for both on- and non-
road sources are promulgated by June 2004.
Letters:
Commonwealth of MA DEP (IV-D-13) p. 2
STAPPA, ALAPCO (IV-D-22) p. 3
Response to issue 8(G)(3): The final rule establishes July 1, 2004 at the date for final
promulgation of the rule for on-highway controls as appropriate. We have also
explained in the regulation that during this rulemaking EPA intends to evaluate
emissions and potential control strategies relating to hazardous air pollutants
from nonroad engines and vehicles.
(4) EPA should continue to study the issue and plan to propose additional rules by
the end of 2001. Also, EPA should establish a three-year cycle for reviewing
the rule's impact and the need for strengthening it.
Letters:
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Response to Comments
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Clean Air Network, et al (IV-D-38) p. 5
Response to issue 8(G)(4): The Agency has established an ambitious research agenda in
the rule. The Agency does not believe that is would be appropriate or
reasonable to shorten the time period alloted for additional research and
analysis prior to the next rulemaking. It is premature to commit the Agency to a
three-year cycle of review for the mobile source air toxics rule until we gain a
more robust appreciation of the risks attributable to air toxics.
(H) Small land-based SI engines should be excluded from all further rulemakings.
(1) It is not cost-effective to continue to spend money studying or regulating
insignificant contributors of emissions.
Letters:
North American Equipment Dealers Association (IV-D-37) p. 2-3
Response to issue 8(H)(1): These engines may play an important role in contribution to
personal exposure to air toxics despite the fact that their contribution to national
inventories is relatively low. As part of the TAP, we will determine which
pollutants and categories of new nonroad engines are appropriate for further
controls.
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ISSUE 9: COMMENTER SUPPORTS OTHER'S COMMENTS
(A) Commenter supports comments made by API.
(1) Commenter provides no further supporting information or detailed analysis.
Letters:
Chevron (IV-D-34) p. 1
Citgo Corporation (IV-D-5) p. 1
ExxonMobil (IV-D-16) p. 10
Marathon Ashland Petroleum, LLC (IV-D-15) p. 1
Phillips Petroleum Company (IV-D-20) p. 5
Response to issue 9(A)(1): No response required.
(B) Commenter supports comments made by NPRA.
(1) Commenter provides no further supporting information or detailed analysis.
Letters:
Marathon Ashland Petroleum, LLC (IV-D-15) p. 1
Phillips Petroleum Company (IV-D-20) p. 5
Response to issue 9(B)(1): No response required.
(C) Commenter supports comments made by STAPPA/ALAPCO.
(1) Commenter provides no further supporting information or detailed analysis.
Letters:
Commonwealth of MA DEP (IV-D-13) p. 1
(2) Commenter supports STAPPA/ALAPCO hearing testimony.
Letters:
Puget Sound Clean Air Agency (IV-D-27) p. 1
Response to issue 9(C)(1) and (2): No response required.
(D) Commenter supports comments made by NESCAUM.
(1) Commenter provides no further supporting information or detailed analysis.
Letters:
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Response to Comments
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Commonwealth of MA DEP (IV-D-13) p. 1
Response to issue 9(D)(1): No response required.
(E) Commenter supports comments made by EMA.
(1) Commenter provides no further supporting information or detailed analysis.
Letters:
Alliance of Automobile Manufacturers (IV-D-11) p. 5
International Truck and Engine Corp. (IV-D-30) p. 1
Response to issue 9(E)(1): No response required.
(2) Commenter supports EMA's hearing testimony generally.
Letters:
Detroit Diesel (IV-F-1) p. 75
Response to issue 9(E)(2): No response required.
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