Document 36j30z9evNmQVzmkeGY9pDoJ

A Division of The Society of The Plastics Industry, Inc. October 4, 1988 TO: The VI Health, Safety & Environment Committee The VI Legal Committee RE: EPA Benzene NESHAPS Rulemaking Enclosed is a copy of comments filed October 3rd with the Environmental Protection Agency on behalf of SPI and the Vinyl Institute concerning EPA's proposed policy approaches to Nation al Emission Standards for Hazardous Air Pollutants. These comments were prepared pursuant to an agreement between Bob Luss and W.C. Holbrook, Chairman of the VI Legal and Health, Safety and Environment Committees respectively. MNS/pmb enclosure 1/U Meredith N. Scheck Assistant Director CTL019781 Wayne Interchange Plaza II 155 Route 46 West Wayne, NJ 07470 (201) 890-9299 The Society of the Plastics Industry, Inc. 1275 K Street, N.W., #400 Washington, D C. 20005 (202)371-5200 October 3, 1988 Central Docket Section (LE-131) ATTN: Docket No. OAQPS 79 U.S. Environmental Protection Agency 401 M Street, S.W. Washington, D.C. 20460 Re: Proposed Rule for National Emission Standards for Hazardous Air Pollutants; Benzene Equipment Leaks; 53 Fed. Reg. 28,496 (July 28, 1988) Dear Sir or Madam: On July 28, 1988, the U.S. Environmental Protection Agency (EPA) published a notice of proposed rulemaking (NPR) for certain National Emission Standards for Hazardous Air Pollutants (NESHAP). Although specifically addressing benzene equipment leaks, EPA makes it very clear that the "final policy approach adopted in this proceeding and the relative weight it gives to the various risk measures and uncertainties will be come the framework for decisions on future NESHAP." 53 Fed. Reg. at 28,497. Additionally, the policy approach selected is intended to make EPA's actions consistent with National Resources Defense Council, Inc. v. EPA, 824 F.2d 1146 (1987) ("Vinyl Chloride"). As a party to the Vinyl Chlor.ide case, the Society of the Plastics Industry, Inc. (SPI)_/ and its Vinyl Institute is pleased to submit comments on this Notice of Proposed Rulemaking. In general, SPI"supports Approach A, the case-by-case approach which considers all health information V SPI, the major national trade association of the plastics industry, is a corporation organized under the Not-for-Profit Corporation Law of the State of New York. Its 2,000 member companies and individuals and 49 operating units include those who supply raw materials; process or manufacture plastics or plastics products; and engineer or construct molds or similar accessory equipment for the plastics industry. The majority of SPI members are the processors and converters of plastic resins into end products which represent 75% of the dollar volume sale of plastics in this country, (cont. on next page) PAST PERFORMANCE--FUTURE PROGRESS CTL019782 Central Docket Section (LE-131) October 3, 1988 Page Two and risk factors, as the only proposed approach that is con sistent with the Vinyl Chloride decision and the mandates of the Clean Air Act. A. SPI-Vinyl Institute Interest Principally through the Vinyl Institute, SPI has exten sively participated in the NESHAPs process. This included the initial National Emission Standard for Vinyl Chloride, 41 Fed. Reg. 46564 (Oct. 21, 1976); the proposed amendments, 42 Fed. Reg. 29006 (June 7, 1977); and EPA's notice withdrawing the 1977 proposal and simultaneously proposing a new set of revi sions to the vinyl chloride standard, 40 C.F.R. 61.60 et. seq. 50 Fed. Reg. 1182 (Jan. 9, 1985). More significant to this rulemaking, the Vinyl Insti tute participated as an Intervenor-Respondent in National Re sources Defense Council, Inc., (NRDC) v. EPA, 824 F.2d 1146 (D.C. Cir. 1987) ("Vinyl Chloride"). The Vinyl Institute's comments and briefs submitted in the Vinyl Chloride proceedings addressed specific areas where EPA has now requested informa tion, namely: (1) risk determination (2) acceptable level of risk, and (3) ample margin of safety. The Court of Appeals remanded the Vinyl Chloride case to the Agency for further action. Therefore, the Vinyl Institute and SPI have a particular interest in the outcome of this rulemaking which will ultimately influence the Agency's handling of Vinyl Chloride remand. B. Support for CMA and API Statements We have had the opportunity to review the public hearing testimony and the comments prepared by the Chemical Manufacturers Association (CMA) and the more specific benzene related comments submitted by the American Petroleum Institute (cont. from previous page) Members of the Vinyl Insti tute include Air Products & Chemicals, the BFGoodrich Chemical Group, Borden Chemical, Certain-Teed, Dow Chemical U.S.A., Occidental Chemical, PPG Industries, Shintech and VISTA Chemi cal. Members of the Vinyl Institute account for approximately 82% of the domestic production of vinyl chloride and 85% of the domestic production of polyvinyl chloride. CTL019783 Central Docket Section (LE-131) October 3, 1988 Page Three (API). We support both CMA's and API's position that Approach A, the case-by-case approach, is the only feasible approach to setting standards for hazardous air pollutants because it is the only proposed approach that evaluates all available infor mation about a particular chemical, including the quality and quantity of health effects data and appropriate risk assessment methods. Accordingly, we endorse both CMA's and API's submis sions and offer the following additional comments in support of Approach A and specific items addressed in the NPR. C. The Vinyl Chloride Case Requires Adoption of Approach A To be consistent with the approach established under the Vinyl Chloride decision, EPA must evaluate all scientific data in determining "acceptable risk to health" and then "de cide what risks are acceptable in the world in which we live." As the Agency acknowledges. Approach A, the case-by-case ap proach, is the only approach that allows for consideration of all relevant health information, both qualitative and quanti tative. The Vinyl Institute believes Approach A is the most consistent with the Vinyl Chloride decision and is the most scientifically sound approach for determining acceptable risk. In determining acceptable risk as outlined by the Vinyl Chloride decision, the court concluded that Congress directed EPA to provide an "ample margin" of safety to account for any scientific uncertainties in deciding what constitutes a safe level. Additionally, Congress provided the EPA with discre tionary powers under the statute to d.eal with these scientific uncertainties. While the Court concluded that the Congres sional mandate to provide "an ample margin of safety" "to pro tect public health" requires the Administrator to make an ini tial determination of what is "safe" the "decision does not require a finding that safe means 'risk-free' . . . ."A/ 1/ Zero risk is not required by Section 112. As the Supreme Court has held: "[S]afe" is not the equivalent of "risk-free." There are many activities that we engage in every day--such as driving a car or even breathing city air--that en tail some risk of accident or material health impair ment; nevertheless, few people would consider these activities "unsafe." (cont. on next page) CTL019784 Central Docket Section (LE-131) October 3/ 1988 Page Four Moreover, the court's opinion, prior case law and common sense all suggest that EPA consider whatever credible health informa tion is available at the time a decision is made. In this regard, the Administrator must deter mine what inferences should be drawn from available scientific data and decide what risks are acceptable in the world in which we live. Vinyl Chloride, 824 F.2d at 1,165. The other proposed approaches, B, C and D respectively, focus on a single parameter of risk that is extremely inflex ible and creates risk values based upon upper boundary confi dence limits. These approaches directly conflict not only with the approach set forth by the Vinyl Chloride decision, but with EPA's own Guidelines for Carcinogen Risk Assessment. 51 Fed. Reg. 33992 (1986). In August 1988, the Agency announced its intent to review the 1986 Guidelines for Carcinogenic Risk Assessment. 53 Fed. Reg. 32656 (Aug. 26, 1988). The Notice emphasized that one purpose of the Guidelines was to "encourage research and analysis that will lead to new risk assessment methods and data" which would be used to improve and revise the Guidelines. The Guidelines were developed and published with the understanding that risk assessment is an evolving scien tific undertaking and that continued study would lead to change. Thus, reliance upon a fixed number or a single numeri cal risk criterion under this rulemaking is inappropriate. D. Conclusion SPI and its Vinyl Institute believe regulation of National Emission Standards for Hazardous Air pollutants must be on a case-by-case approach. Given the inherent limitations (cont. from previous page) Industrial Union Dept. AFL-CIO v. API, 448 U.S. 607, 642 (1980). See also Ethyl Corp. v. EPA, 541 F.2d 1, 18 n.33 (D.C. Cir. 1976), cert, denied, 426 U.S. 941 (1976). Indeed, if zero risk were required, the Adminis trator would have no need to exercise any judgment in setting emission levels, which is specifically what Section 112 re quires him to do. Perhaps for this reason, even the panel dis sent rejected NRDC's zero risk argument. See NRDC v. EPA, 804 F. 2d 710/ 735-36 (D.C. Cir. 1986), vacated, 810 F.2d 270, 824 F.2d 1146 (1987) (en banc). CTL019785 Central Docket Section (LE-131) October 3, 1988 Page Five of a single parameter of risk in the face of evolving scien tific information on the hazards associated with various sub stances and the high degree of uncertainty associated with absolute risk, a case-by-case approach and assessment of all available health information is the only appropriate approach in determining acceptable risk to protect public health. SPI appreciates this opportunity to offer comments on this rulemaking. We would be happy to provide additional sup port for the comments that the Agency might need. Whatever the outcome of this proceeding, artificial limitations on the type of scientific or technical information that the Agency will consider for the remanded vinyl chloride standard must be viewed as arbitrary and improper. Sincerely OF COUNSEL JEROME H. HECKMAN PETER L. DE LA CRUZ KELLER & HECKMAN 1150 17th Street, N.W. Suite 1000 Washington, D.C. 20036 (202) 956-5600 Director Federal Government Affairs CTL019786