Friday, December 19, 2003

Part III

Environmental Protection Agency 40 CFR Part 63 National Emission Standards for Hazardous Air Pollutants: Chlorine and Hydrochloric Acid Emissions from Chlorine Production; Final Rule

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ENVIRONMENTAL PROTECTION through Friday, excluding legal diaphragm cells and membrane cells. AGENCY holidays. Affected categories and entities include FOR FURTHER INFORMATION CONTACT: Mr. those sources listed in the primary 40 CFR Part 63 Iliam Rosario, Metals Group, Emission Standard Industrial Classification code 2812 or North American Information [OAR–2002–0016, FRL–7554–6] Standards Division (C439–02), U.S. EPA, Research Triangle Park, North Classification System code 325181. RIN 2060–AK38 Carolina 27711, telephone number: This description is not intended to be (919) 541–5308, facsimile: (919) 541– exhaustive, but rather provides a guide National Emission Standards for 5600, electronic mail address: for readers regarding entities likely to be Hazardous Air Pollutants: Chlorine and [email protected]. affected by this final action. If you have Hydrochloric Acid Emissions From SUPPLEMENTARY INFORMATION: questions regarding the applicability of Chlorine Production Docket. The official public docket this final action to a particular entity, consult the person listed in the AGENCY: Environmental Protection consists of the documents specifically preceding FOR FURTHER INFORMATION Agency (EPA). referenced in this final action, any public comments received, and other CONTACT section. ACTION: Final decision to delete information related to this final action. subcategory. World Wide Web Information. In Although a part of the official docket, addition to being available in the SUMMARY: This final action deletes the the public docket does not include docket, an electronic copy of today’s subcategory of sources that do not Confidential Business Information or final action will also be available utilize mercury cells to produce other information whose disclosure is through EPA’s World Wide Web site. chlorine and caustic. We have restricted by statute. The official public Following signature, a copy of this final determined that this non-mercury cell docket is the collection of materials that action will be posted on our policy and chlorine production subcategory should is available for public viewing. The EPA guidance page for newly proposed or be deleted because chlorine and Docket Center Public Reading Room is promulgated rules: http://www.epa.gov/ hydrochloric acid (HCl), the only open from 8:30 a.m. to 4:30 p.m., ttn/oarpg. The web site provides hazardous air pollutants (HAP) emitted, Monday through Friday, excluding legal information and technology exchange in are not carcinogenic, have well-defined holidays. The telephone number for the various areas of air pollution control. If health thresholds, and chlorine and HCl Reading Room is (202) 566–1744, and more information regarding the web site air emissions from each non-mercury the telephone number for the Air Docket is needed, call our web site help line at cell chlorine subcategory source do not is (202) 566–1742. (919) 541–5384. Electronic Docket Access. You may exceed a level which is adequate to Outline. The information presented in access this final action electronically protect public health with an ample this preamble is organized as follows: margin of safety. In addition, the through the EPA Internet under the emissions of chlorine and HCl will not ‘‘Federal Register’’ listings at http:// I. Background A. What Is the Source of Authority for This result in any adverse environmental www.epa.gov/fedrgstr/. Final Action? effects. This final action does not An electronic version of the public docket is available through EPA’s B. What Is the Source Category? address chlorine and HCl emissions C. How Did the Public Participate in from mercury cell chlor-alkali plants. electronic public docket and comment system, EPA Dockets. You may use EPA Developing This Final Action? The final rulemaking for the mercury II. Summary of Final Action cell chlor-alkali plant subcategory is Dockets at http://www.epa.gov/edocket/ to view public comments, access the III. Summary of Major Comments contained elsewhere in this issue of the A. What Issues Were Raised Regarding the Federal Register. index listing of the contents of the official public docket, and to access Statutory Authority for This Final EFFECTIVE DATE: December 19, 2003. those documents in the public docket Action? ADDRESSES: Docket. We have that are available electronically. B. What Issues Were Raised Related to the established an official public docket for Although not all docket materials may Potential Overlap With the HCl this action under Docket ID No. OAR– be available electronically, you may still Production NESHAP? 2002–0016, A–2002–09, A–2000–32, access any of the publicly available C. What Issues Were Raised Regarding the Risk Assessment That Forms the and OAR–2002–0017 available for docket materials through the docket Technical Basis for This Final Action? public viewing at the Office of Air and facility in the above paragraph entitled IV. Statutory and Executive Order Reviews Radiation Docket and Information ‘‘Docket.’’ Once in the system, select Center (Air Docket) in the EPA Docket A. Executive Order 12866: Regulatory ‘‘search,’’ then key in the appropriate Planning and Review Center, (EPA/DC) EPA West, Room docket identification number. B102, 1301 Constitution Avenue, NW, B. Paperwork Reduction Act Judicial Review. Under CAA section C. Regulatory Flexibility Act Washington, DC. Docket No. A–2002–09 307(b), judicial review of the final D. Unfunded Mandates Reform Act or OAR–2002–0016 contains supporting action is available only by filing a E. Executive Order 13132: Federalism information used in developing the petition for review in the U.S. Court of F. Executive Order 13175: Consultation proposed and final action for the non- Appeals for the District of Columbia and Coordination With Indian Tribal mercury cell subcategory of the chlorine Circuit on or before February 17, 2004. Governments production source category addressed in Only those objections to the final action G. Executive Order 13045: Protection of this action. The docket is available for which were raised with reasonable Children From Environmental Health public viewing at the Office of Air and specificity during the period for public and Safety Risks Radiation Docket and Information comment may be raised during judicial H. Executive Order 13211: Actions That Center (Air Docket) in the EPA Docket review. Significantly Affect Energy Supply, Center, (EPA/DC) EPA West, Room Affected entities. Entities potentially Distribution, or Use B102, 1301 Constitution Avenue, NW, affected by this action include facilities I. National Technology Transfer Washington, DC and may be inspected engaged in the production of chlorine Advancement Act from 8:30 a.m. to 4:30 p.m., Monday using non-mercury cells, for example, J. Congressional Review Act

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I. Background on July 16, 1992 (57 FR 31576). At the chlorine production subcategory sources time of the initial listing, we defined the (67 FR 44713). This final action deletes A. What Are the Sources of Authority chlorine production source category as the non-mercury cell chlorine for This Final Action? follows: ‘‘The Chlorine Production production subcategory. Elsewhere in Section 112 of the Clean Air Act Source Category includes any facility today’s Federal Register, we are issuing (CAA) contains our authorities for engaged in the production of chlorine. a final rulemaking to regulate mercury reducing emissions of HAP. Section The category includes, but is not limited emissions for mercury cell chlorine 112(c)(1) of the CAA requires us to list to, facilities producing chlorine by the production subcategory sources to categories and subcategories of major following production methods: regulate mercury emissions, and we are sources and area sources of HAP and to diaphragm cell, mercury cell, membrane utilizing our authority under CAA establish national emission standards cell, hybrid fuel cell, Downs cell, potash section 112(d)(4) not to regulate for hazardous air pollutants (NESHAP) manufacture, hydrochloric acid chlorine and HCl emissions from the for the listed source categories and decomposition, nitrosyl chloride mercury cell chlorine production source subcategories. Section 112(c)(9) of the process, nitric acid/salt process, Kel- category. CAA contains provisions that allow the Chlor process, and sodium chloride/ In the non-mercury cell chlorine deletion of source categories listed sulfuric acid process.’’ production subcategory, we identified under CAA section 112(c)(1) provided In our subsequent analysis of the 20 major source plant sites where that certain conditions are met. For chlorine production source category, we diaphragm or membrane cell chlor- chemicals that may result in cancer in did not identify any facilities that alkali chlorine production plants are humans, the condition is that no source produce chlorine using hybrid fuel located. None of the non-mercury cell in the category emit HAP in quantities cells, the nitrosyl chloride process, the chlorine production processes at these that result in a lifetime cancer risk of Kel-Chlor process, the sodium chloride/ sites emit HAP greater than 10 tons per greater than one in a million to the sulfuric acid process, or as a by-product year (tpy) of one HAP or 25 tpy of all individual in the population who is from potash manufacturing. The HAP (that is, they would not be major most exposed. For chemicals that result majority of the source category is made source if they were not collocated with in adverse health effects other than up of chlor-alkali plants that produce other HAP emission sources), but the cancer or adverse environmental effects, chlorine and caustic (sodium total emissions from the entire the conditions are that no source in the hydroxide) using mercury cells, contiguous plant site make each a major category emit HAP that exceed a level diaphragm cells, or membrane cells. We source. ‘‘adequate to protect public health with also identified operating plants that an ample margin of safety’’ and that no produce chlorine as a by-product: one C. How Did the Public Participate in source emit HAP in quantities to cause from the production of sodium metal in Developing This Final Action? adverse environmental effects. Down cells, another from the Prior to proposal, we met with Section 112(d) of the CAA requires us production of potassium nitrate industry representatives to discuss the to promulgate regulations establishing fertilizer that uses the nitric acid/salt data and information used to develop emission standards for each category or process, and a third that produces the proposed action. In addition, these subcategory of major sources and area chlorine as a by-product from primary and other potential stakeholders, sources of HAP listed pursuant to CAA magnesium refining (magnesium including equipment vendors and section 112(c). Section 112(d)(2) of the refining is a separately listed source environmental groups, had opportunity CAA specifies that emission standards category, and is being addressed on its to comment on the proposed action. promulgated under the section shall own in a separate rulemaking). In The proposed action was published in require the maximum degree of addition, at a site where a membrane the Federal Register on July 3, 2002 (67 reductions in emissions of the HAP cell process is located, we have FR 44713). The preamble to the subject to CAA section 112 that are identified a process that produces proposed action discussed the deemed achievable considering cost and chlorine through the decomposition of availability of technical support any non-air quality health and HCl. Our analysis shows that the only documents, which described in detail environmental impacts and energy HAP emitted from sources within the the information gathered during the requirements. chlorine production source category are standards development process. Public Each of the NESHAP established chlorine, HCl, and mercury, and comments were solicited at proposal. reflects the maximum degree of mercury is only emitted from mercury We received eight public comment reduction in emissions of HAP that is cell chlor-alkali plants. letters on the proposed action. The achievable. This level of control is Because of the differences in the commenters represent the following commonly referred to as maximum production methods and the HAP affiliations: industry representatives, achievable control technology (MACT). emitted, we decided to divide the governmental entities, and The CAA includes exceptions to the chlorine production category into two environmental groups during the public general statutory requirement to subcategories: (1) Mercury cell chlor- comment. In the post-proposal period, establish emission standards based on alkali plants, and (2) chlorine we had discussions with commenters MACT. For pollutants for which a production plants that do not rely upon and other stakeholders to clarify threshold has been established, CAA mercury cells for chlorine production comments and to assist in our analysis section 112(d)(4) allows us ‘‘... to (diaphragm cell chlor-alkali plants, of the comments. Records of these consider such threshold level, with an membrane cell chlor-alkali plants, etc). contacts are found in Docket No. A– ample margin of safety, when Thus, on July 3, 2002, we issued 2002–09 or OAR–2002–0016. establishing emissions standards. . . .’’ different proposals to address the emissions of mercury from the mercury II. Summary of Final Action B. What Is the Source Category? cell chlorine production subcategory This final action deletes the The chlorine production source sources (67 FR 44672) and the emissions subcategory of the Chlorine Production category was initially listed as a of chlorine and HCl from both the non- Source Category for facilities that do not category of major sources of HAP mercury cell chlorine production utilize mercury cells to produce pursuant to section 112(c)(1) of the CAA subcategory and the mercury cell chlorine and caustic. This action is

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being made under our authority in CAA monitoring, recordkeeping, and Thus, the commenter stated that EPA section 112(c)(9)(B)(ii). This final action reporting efforts to certify compliance did not have the authority to ‘‘make a does not impact the other subcategory of with any requirements. The commenter determination of no regulation for a the Chlorine Production Source was concerned that a rulemaking would listed source category or pollutant.’’ Category: Mercury Cell Chlor-Alkali also stretch EPA’s limited resources in Finally, the commenter referred to Plants. A final rulemaking addressing monitoring for compliance. Three CAA section 112(d)(3), which contains the Mercury Cell Chlor-alkali Plant commenters stated that EPA’s the MACT floor provisions. According subcategory is contained in a separate interpretation of their authority under to the commenter, the intent of the section of today’s Federal Register. CAA section 112(d)(4) was supported by NESHAP program is to develop a MACT the legislative history, which floor, and EPA is not fulfilling the III. Summary of Major Comments emphasizes that Congress included requirements of the CAA by not On July 3, 2002 (67 FR 44713), we section 112(d)(4) in the CAA to prevent performing such an analysis. The proposed not to regulate chlorine and unnecessary regulation of source commenter stated that a majority of HCl emissions from all chlorine categories. The commenter agreed that facilities identified in the analysis have production processes (mercury and non- under CAA section 112(d)(4), once EPA adequate controls due to State mercury cell) under the authority of establishes that a pollutant has a health regulations and these controls should be CAA section 112(d)(4). We based that threshold and that exposure to that incorporated into the MACT floor decision on our determination that no pollutant’s emissions are below the evaluation. The commenter was further control is necessary because health threshold, EPA should refrain particularly concerned that by not chlorine and HCl are health threshold from setting MACT standards for that developing a MACT floor, no new pollutants, and chlorine and HCl levels pollutant. The commenter further source MACT standards were created. emitted from chlorine production suggested that EPA should use CAA The commenter requested that EPA processes are below their threshold section 112(d)(4) whenever setting perform a MACT floor analysis, and values within an ample margin of safety, emission standards under CAA section develop a NESHAP for new sources. and they do not result in adverse 112(d). Two commenters that stated that they environmental effects. Three commenters disagreed with believe that EPA should support their For a complete summary of all the EPA’s interpretation of CAA section decision not to regulate the chlorine comments received on the proposed 112(d)(4). They did not believe that production source category by citing the rule and our responses to them, refer to CAA section 112(d)(4) could be used as provisions of CAA section the ‘‘National Standards for Hazardous an alternative to setting MACT 112(c)(9)(B)(ii) in addition to the Air Pollutants: Chlorine and standards under CAA section 112(d)(3). provisions of CAA section 112(d)(4). Hydrochloric Acid Emissions from One commenter noted that the phrase The commenters stated that the Chlorine Production: Summary of ‘‘in lieu of’’ was not included in the evaluation performed by EPA would Public Comments and Responses’’ in CAA section 112(d)(4) provisions, and also be sufficient for deleting sources Docket No. A–2002–09 or OAR–2002– that its absence was intentional. In under CAA section 112(c)(9)(B)(ii), and 0016. support of their claim, the commenter that EPA’s proposal to not regulate chlorine production is similar to A. What Issues Were Raised Regarding pointed to CAA section 112(d)(5), which deleting a subcategory of the chlorine the Statutory Authority for This Final does contain the phrase ‘‘in lieu of.’’ production source category (i.e., all Action? The commenter interpreted CAA section 112(d)(4) to mean that health based chlorine production sources other than Comment: Several comments were thresholds can be considered when those using the mercury-cell chlor-alkali received related to our decision not to establishing the degree of MACT production process). Therefore, in regulate chlorine and HCl emissions requirements, but not in place of the addition to using the authority under from chlorine production under the requirement to establish a MACT floor CAA section 112(d)(4), the commenters authority of CAA section 112(d)(4). pursuant to CAA section 112(d)(3). suggested that EPA delete the Some commenters supported that The commenter also pointed to the subcategory using the authority under decision and believed the interpretation provisions of CAA section 112(c)(2) CAA section 112(c)(9)(B)(ii) to avoid of our authority under CAA section which require the Administrator to any uncertainty over the use of its 112(d)(4) was appropriate. In contrast, establish NESHAP for listed source authority under CAA section 112(d)(4). other commenters disagreed with EPA’s categories and subcategories. The Response: The chlorine production interpretation of CAA section 112(d)(4). commenter was concerned that EPA source category was initially listed as a Some of the commenters believed that evaluated emissions from chlorine category of major sources of HAP EPA should use its authority under CAA production plants and concluded that pursuant to section 112(c)(1) of the CAA section 112(c)(9)(B)(ii). since they do not pose a threat to human on July 16, 1992 (57 FR 31576). Our Several commenters supported the health and the environment, the analysis shows that the only HAP decision not to regulate chlorine and Administrator is relieved of her emitted in significant quantities from HCl emissions from chlorine production responsibilities to establish a MACT sources within the chlorine production plants under the authority of CAA standard. The commenter maintained source category are chlorine, HCl, and section 112(d)(4). One commenter stated that this position is not supported by mercury, and mercury is only emitted that EPA conducted an appropriate CAA section 112(c)(2). from mercury cell chlor-alkali plants. analysis to determine that human The commenter also referred to CAA Because of the differences in the exposures from ambient concentrations section 112(d)(1) which states ‘‘. . . the production methods and the HAP are well below threshold values with an Administrator shall promulgate emitted, we decided to divide the ample margin of safety. According to regulations establishing emission chlorine production category into two another commenter, any further standards for each category or subcategories: (1) mercury cell chlor- regulation of chlorine and HCl subcategory of major sources and area alkali plants, and (2) chlorine emissions from the chlorine production sources of hazardous air pollutants production plants that do not rely upon industry would have no environmental listed for regulation pursuant to mercury cells for chlorine production benefits, but would result in costs for subsection (c) of this section. . . .’’ (diaphragm cell chlor-alkali plants,

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membrane cell chlor-alkali plants, etc). sufficient for delisting the subcategory In cases where we have not studied a Thus, on July 3, 2002, we issued under CAA section 112(c)(9)(B)(ii), and chemical itself, we rely on the studies different proposals to address the that such action is justified as a logical of other governmental agencies, such as emissions of mercury from the mercury outgrowth of public comments received the Agency for Toxic Substances and cell chlorine production subcategory on our proposed action. Disease Registry (ATSDR) or the Office sources (67 FR 44672) and the emissions We have reviewed in some detail the of Health Hazard Assessment of of chlorine and HCl from both the non- comments which have questioned our California’s Environmental Protection mercury cell chlorine production proposed use of CAA section 112(d)(4) Agency (CAL EPA), for RfC values. The subcategory and the mercury cell to not establish NESHAP for chlorine CAL EPA developed an RfC value of 0.2 chlorine production subcategory sources and HCl emissions from facilities within µg/m3 for chlorine based on a large (67 FR 44713). While we are finalizing the non-mercury cell chlorine inhalation study with rats. the NESHAP for the mercury cell chlor- production subcategory. We do not Acute exposure guideline level alkali subcategory in a separate action in agree with these comments, and we are (AEGL) toxicity values are estimates of today’s Federal Register, with certain exercising our authority under CAA adverse health effects due to a single modifications from the proposal section 112(d)(4) to not regulate exposure lasting eight hours or less. The (including our decision not to regulate chlorine and HCl emissions from the confidence in the AEGL (a qualitative chlorine and HCl emissions under the mercury cell chlorine production source rating or either low, medium, or high) authority of CAA section 112(d)(4)), we category. The NESHAP for the mercury is based on the number of studies have decided to delete the non-mercury cell chlorine subcategory is being available and the quality of the data. cell chlorine production subcategory in promulgated in a separate action listed Consensus toxicity values for effects of accordance with CAA section elsewhere in today’s Federal Register. acute exposures have been developed by 112(c)(9)(B)(ii). We have decided to delete the non- several different organizations, and we are beginning to develop such values. A We agree with those two commenters mercury cell chlorine production national advisory committee organized who suggested that exercising our subcategory under CAA section by EPA has developed AEGL’s for authority under CAA section 112(c)(9)(B)(ii) for the reasons stated priority chemicals for 30-minute, 1- 112(c)(9)(B)(ii) is appropriate for this above. We do not feel that we are hour, 4-hour, and 8-hour airborne subcategory for a number of reasons. obligated to exercise our authority exposures. They have also determined First, CAA section 112(c)(9)(B)(ii) under both CAA section 112(d)4) and the levels of these chemicals at each permits the deletion of subcategories, CAA section 112(c)(9)(B)(ii) as suggested by the commenter. Therefore, exposure duration that will protect and that is what is at issue here. We are against discomfort (AEGL1), serious not deleting the entire chlorine today’s final action is to delete the non- mercury cell chlorine production effects (AEGL2), and life-threatening production category; neither are we effects or death (AEGL3). Hydrogen deleting the mercury cell subcategory, subcategory under CAA section 112(C)(9)(B)(ii). chloride has been assigned AEGL values the emissions from which and (65 FR 39264, June 23, 2000), including Comment: Some commenters production methodology are different the 1-hour, AEGL1 of 2,700 µg/m3 used concluded that we did not establish from those facilities that produce in our revised analysis. Chlorine has either cancer or non-cancer thresholds chlorine using diaphragm cells, also been assigned AEGL values (62 FR for HCl and chlorine and, therefore, it is membrane cells, and the various 58840), including the 1 hour AEGL1 of processes that produce chlorine as a by- illegal for EPA to attempt to use CAA 1,500 µg/m3 used in our revised product. Second, the only HAP emitted section 112(d)(4) to set standards. analysis. in significant quantities from the Response: Section 112(d)(4) of the We maintain that the listing of health facilities in this subcategory are chlorine CAA states that, ‘‘With respect to thresholds by EPA and other and HCl. Chlorine and HCl are not pollutants for which a health threshold organizations in the public domain as carcinogens (http://www.epa.gov/iris/). has been established, the Administrator discussed above has established health Third, as indicated in the proposal, both may consider such threshold level, with thresholds for HCl and chlorine. of these HAP are threshold pollutants. an ample margin of safety, when Further, we believe that the recognition For the proposed action, we obtained establishing emission standards under of these levels by EPA, ATSDR, and chlorine and HCl emission estimates this subsection.’’ The threshold level CAL EPA indicates that chlorine and from every known major source facility refers to the level of concentration of a HCl are threshold pollutants. in the non-mercury cell chlorine chemical under which no health effects Moreover, we provided the public an production subcategory using our are expected from exposure, although opportunity to comment on the authority under section 114 of the CAA this term is not defined in CAA section thresholds for chlorine and HCl that we and conducted risk assessments for each 112. Further, CAA section 112 does not used in our original analysis for the facility. We updated these assessments address the process that must be proposed action. We used the same based on comments received. Our followed to establish a threshold level. threshold level for HCl for both the analysis showed both at the time of The Reference Concentration (RfC) is proposed and final NESHAP for the proposal and shows now that emissions a long-term threshold, defined as an pulp and paper mill category. (Although of these HAP from every source in the estimate of a daily inhalation exposure there is no mention of the HCl threshold non-mercury cell chlorine production that, over a lifetime, would not likely in the final rule preamble for the pulp subcategory do not exceed a level which result in the occurrence of noncancer and paper mill NESHAP, we received is ‘‘adequate to protect public health health effects in humans. We have no comment on the use of the threshold with an ample margin of safety.’’ determined that the RfC for HCl of 20 and used it in deciding not to set a Finally, our evaluation of environmental microgram per cubic meter (µg/m3) is an limitation for HCl in the final NESHAP). effects indicates that no adverse impacts appropriate threshold value for We have also used the same threshold will result from emissions from any assessing risk to humans associated for HCl in the proposed NESHAP for source within the subcategory. with exposure to HCl through inhalation lime production (67 FR 78046). There is Therefore, we agree with the http://www.epa.gov/iris/subst/ no requirement in either CAA section commenters that our evaluation is 0396.htm). 112(d)(4) or CAA section 112(c)(9)(B)(ii)

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that EPA develop or finalize a threshold into a tank truck, rail car, ship, or barge, examined the literature on the for a particular HAP in a certain along with the piping and other atmospheric fate of chlorine in the manner. In fact, CAA section equipment in HCl service used to atmosphere to validate our original 112(c)(9)(B)(ii), the authority we are transfer liquid HCl product from the assumption. utilizing here, does not mention the HCl production unit to the HCl storage The additional information obtained term threshold (although the term is tanks and/or HCl transfer operations.’’ from the literature confirmed our earlier implied by the use of the phrase ‘‘a level Therefore, we have clarified that information. There are several different which is adequate to protect public chlorine and HCl emissions from the pathways that molecular chlorine can health with an ample margin of safety.’’ absorber vents of direct synthesis HCl take, including photolysis (reaction with The thresholds we have used for both production units at chlor-alkali light), reactions with hydroxyl radicals HCl and chlorine are consistent with the facilities, as well as the associated (OH), reactions with oxygen atoms (O), statutory language in CAA section storage tanks and transfer operations and reactions with water vapor (H2O). 112(c)(9)(B)(ii). specified above, are included in the Each pathway results in different non-mercury cell chlorine production amounts of Cl2 being removed from the B. What Issues Were Raised Related to subcategory and are not regulated under troposphere, and different pathways are the Potential Overlap With the HCl subpart NNNNN. predominant at different times of the Production NESHAP? The clarifications we made in subpart day. However, photolysis is the primary Comment: Four commenters NNNNN provide guidance for sources to pathway. supported EPA’s decision to include determine to which source category Therefore, this information did not direct synthesis HCl as a part of the non- their operations belong. As stated above, fundamentally change the assumption mercury cell chlorine production all HCl production facilities at chlor- made in the original risk assessment, process. However, a commenter alkali plants that produce HCl through which was that on a long-term basis, requested that we clarify that chlorine direct synthesis are part of the non- individuals will be exposed more to and HCl emissions from the absorber mercury cell chlorine production hydrochloric acid formed from the vents and associated storage vessels and subcategory. All other HCl production photolysis of chlorine than to chlorine. transfer racks of the direct synthesis HCl facilities (e.g., those that produce HCl as However, the commenters are correct production units were included in the a co-product of a chlorinated organic that there will be situations where risk analyses. To clarify applicability to compound) at sites where chlor-alkali individuals will be exposed to chlorine. the HCl Production NESHAP (subpart plants are located are part of the HCl Therefore, in addition to the assessment NNNNN of 40 CFR part 63), a Production source category and subject where we considered only acute commenter suggested that EPA modify to subpart NNNNN. In the case of exposure to chlorine, we concluded that the applicability provisions of subpart shared storage tanks and transfer it was appropriate to consider the effects NNNNN. operations, any storage tank that stores, of chronic exposure to chlorine Two commenters requested that we and any transfer operation that loads, emissions from chlor-alkali plants. In reevaluate collocated chlorine and HCl liquid HCl product which was produced order to provide an upper bound production sources and provide in an HCl production facility that is estimate of the chronic risks to compare guidance so that the facilities can easily subject to subpart NNNNN is subject to with the lower bound estimates determine to which source category they the provisions of that subpart. assuming that all chlorine was belong. According to the commenters, converted to HCl, we conducted collocated chlorine and HCl production C. What Issues Were Raised Regarding modeling assuming that no chlorine is sources may share transfer operations the Risk Assessment That Forms the photolyzed. and storage tanks, and where Technical Basis for This Final Action? In general, we consider an exposure appropriate, we should remove all Comment: In the analysis for the concentration which is below the RfC facilities from the HCl acid production proposed action, we used the HCl RfC concentration (what we call a hazard source category that meet the logical test to determine the long-term health effects quotient of less than 1) to be safe. This outlined in the proposed action. The of chlorine emissions, since chlorine is based on the definition of RfC. The commenters stated that they believe the photolyzes very quickly to HCl in RfC is a peer reviewed value defined as collocated integrated chlorine and HCl sunlight. Two comments supported that an estimate (with uncertainty spanning acid production facilities should be methodology and stated that our perhaps an order of magnitude) of a placed in the non-mercury cell chlorine decision was based on sound scientific daily inhalation exposure to the human production source category and knowledge of the pollutants of concern. population (including sensitive removed from the HCl production In contrast, two other commenters did subgroups) that is likely to be without source category. not agree with our use of the HCl RfC appreciable risk of deleterious Response: The final rule for subpart as a threshold level for chlorine. The noncancer effects during a life time (i.e., NNNNN of 40 CFR part 63 (68 FR commenters stated that not all of the 70 years). 19076, April 17, 2003) states, in annual chlorine emissions can be We conducted additional modeling § 63.8985(d), that an ‘‘HCl production considered as HCl and, therefore, the for all facilities within the subcategory facility is not subject to this subpart if chlorine exposure was underestimated. using the same model used for the it produces HCl through the direct The commenters argued that chlorine proposed action (ISCST3) to estimate synthesis of hydrogen and chlorine and emissions will not undergo photolysis chronic chlorine exposure using the is part of a chlor-alkali facility.’’ The to convert to HCl when there is not assumption that no chlorine is definition of ‘‘HCl production facility’’ bright sunshine (i.e., at night or on photolyzed to HCl. The hazard quotients in subpart NNNNN includes ‘‘all HCl cloudy days). resulting from this additional modeling storage tanks that contain liquid HCl Response: The widely accepted fact defined the upper bound of our risk product that is produced in the HCl that chlorine is photolyzed in sunlight assessment. The highest upper-bound production unit’’ (e.g., direct synthesis formed the basis for the assumption in hazard quotient estimated by the model unit) as well as ‘‘all HCl transfer the original risk assessment that chronic is just over 0.3. (For more details operations that load HCl product exposure to chlorine would not occur. regarding this revised risk assessment, produced in the HCl production unit As a result of the comment, we re- refer to table 2 of the responses to

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comment document, available in the defined human population and consist Based on that comparison, we docket.) Given the health protective of three biological endpoints for each of conclude that the chlorine and HCl assumptions used in this analysis, the four different exposure periods of 30 emissions from non-mercury cell value of 0.3 represents a hypothetical minutes, l hour, 4 hours, and 8 hours. chlorine production plants do not exposure that is well above what we The AEGL2 level is defined as represent an unsafe level of acute would expect actual exposures to be. follows: AEGL2 is the airborne exposure. Further, we maintain, along This is because chlorine is converted to concentration of a substance at or above with the chlorine exposure assessment, HCl in the presence of sunlight within which it is predicted that the general that proves that an ample margin of a few minutes. In addition, the hazard population, including susceptible, but safety is provided with no additional quotient of 0.3, which results from this excluding hypersusceptible individuals, control. exposure scenario is well below the safe could experience irreversible or other Comment: Two commenters value of 1. Thus, we have concluded serious, long-lasting effects or impaired supported EPA’s method of selecting a that, even assuming that some chronic ability to escape. Airborne risk assessment approach to meet the exposure to chlorine may occur, none of concentrations below the AEGL2, but at unique needs of the chlorine production the sources included in this subcategory or above AEGL1 represent exposure industry. The commenters agreed that will have emissions of chlorine or HCl levels that may cause notable the risk assessment methodology should that exceed a level of exposure which is discomfort. not be interpreted as a standardized adequate to protect public health and As utilized in the proposed action, the approach that would set a precedent for the environment with an ample margin AEGL2 1-hour concentrations for how EPA will apply CAA section of safety. chlorine and HCl are 5,800 µg/m3 and 112(d)(4) in future cases. Furthermore, Comment: Two commenters did not 33,000 µg/m3, respectively. the commenters stated that degree of support EPA’s use of the AEGL2 for use The AEGL1 level is defined as conservatism built into all aspects of the as a short-term exposure limit for follows: AEGL–1 is the airborne risk assessment conducted for the chlorine and HCl. One commenter concentration of a substance at or above chlorine production source category stated that the AEGL2 values would not which it is predicted that the general could vary greatly in future risk sufficiently protect public health population, including ‘‘susceptible’’ but assessments for other source categories. because they would allow emissions at excluding ‘‘hypersusceptible’’ The commenters stressed that they levels that cause discomfort, and individuals, could experience notable believe that the conservative according to the commenter, discomfort assumptions made in the health effects discomfort. Airborne concentrations is an adverse health effect. The assessment, emissions estimates, and below AEGL–1 represent exposure commenter also complained that EPA exposure assessment were appropriate levels that could produce mild odor, did not explain why it chose to use for the proposed action. taste, or other sensory irritations. AEGL2 rather than AEGL1 or AEGL3. In contrast, one commenter stated that The 1-hour AEGL1 concentration for The commenter explained that although the risk assessment fell short of the chlorine is 2,900 µg/m3 and the emissions from chlorine plants did not µ Agency’s prior practice. According to corresponding value for HCl is 2,700 g/ the commenter, whenever EPA has exceed AEGL2 values, the emissions 3 may exceed AEGL1 values, and if they m . The ACGIH short term exposure made determinations to regulate a did, the proposed action would not limit for chlorine, which is 1 ppm is specific pollutant based on health meet the statutory requirements. approximately equal to the AEGL1 value considerations (e.g., national ambient µ 3 Another commenter stated that AEGL of 2,900 g/m . air quality standards (NAAQS) for ozone limits are not appropriate for assessing Although we stand by our original and particulate matter (PM), the Agency daily human exposure scenarios analysis, which used the AEGL2 level, evaluated health effects and exposure in because they were developed for we have referenced the commenter’s great detail. The commenter contended emergency planning. The commenter suggested use of the AEGL1 values that in that case, EPA appears to be recommended that EPA should use the (possibly with a safety factor) for content with ‘‘the bare and unsupported American Conference of Governmental determining whether an ample margin assumptions about what health levels Industrial Hygienists (ACGIH), which of safety has been obtained. Therefore, are safe.’’ The commenter argued that it has a 1-hour Short Term Exposure Limit we simply compared the short-term (1- was not appropriate for EPA to use a (STEL) similar to the AEGL1 value of 1 hour average) modeling results from the rigorous approach when setting parts per million (ppm) (for chlorine) original acute risk assessment to the standards and a more cursory approach and is used to protect against eye and AEGL1 values. These results were when making a decision not to regulate. mucous membrane irritation. The obtained by modeling the maximum Response: We disagree with the one commenter’s policy as a State agency is allowable hourly emissions reported in commenter’s characterization of the to add an additional safety factor of ten the CAA section 114 responses for each assessment that forms the basis for this to ACGIH STEL values to protect for of the sources. For plants that did not decision, and we strongly dispute the sensitive individuals, since ACGIH report fugitive emissions, fugitive characterization of the assessment as values were established for healthy emissions were estimated using worst- ‘‘bare and unsupported.’’ We maintain workers. The commenter stressed that case emission factors. that the RfC and AEGL values used as EPA must use conservative benchmarks The maximum modeled 1-hour benchmarks for the assessment are before concluding that an ample margin chlorine concentration for 16 of the 20 scientifically sound and appropriate. of safety exists. plants is less than 5 percent of the The emissions data and other inputs Response: The AEGL values represent AEGL–1 (and ACGIH) value for used for this analysis, which were short-term threshold or ceiling exposure chlorine. Further, the highest modeled provided by the industry and checked values intended for the protection of the concentration for any plant, 346 µg/m3, by our staff, are representative of the general public, including susceptible or is less than 12 percent of the AEGL1 industry. sensitive individuals, but not values. The highest modeled 1-hour HCl In this assessment, the predicted hypersusceptible or hypersensitive concentration for any plant, 120 µg/m3, health effects estimated, using very individuals. The AEGL values represent is less than 5 percent of the AEGL1 conservative inputs and assumptions, biological reference values for this value for HCl. were well below the recognized health

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thresholds. While our approach in this plant than the center of the census block review of the data was conducted as particular action may not be the same as causing our risk estimates to be slightly they were received, and follow-up an approach for a NAAQS, it has been overestimated. By placing receptors at questions asked of the industry certainly more than cursory. We have the center of populated census blocks representatives to clarify the looked at emissions and exposure data on all sides of a facility, we have information submitted. After the for each of the sources in the evaluated people living downwind. In analysis, we were satisfied with the subcategory. We have established conclusion, we continue to feel that quality of the data, with one exception. hazard indices for chlorine and HCl for placing a receptor in the geographic Only one-half of the facilities submitted each source in the subcategory. We center of populated census blocks near chlorine emission estimates from performed a qualitative ecological a facility is a well established approach fugitive sources. One of the areas of assessment. Moreover, in response to to exposure modeling which results in focus in the follow-up questions was to comment received, we have adjusted a reasonable approximation of verify the fugitive emission estimates for our analyses and taken into account estimating the risks where people those facilities that did submit such comments that we have received when actually live, and we maintain that this estimates. Our conclusion was that performing these re-assessments. We methodology is appropriate for actions fugitive emissions are to be expected will base each risk assessment for this taken under the authority of either CAA from every non-mercury cell chlorine and future regulatory action on sound section 112(d)(4) or CAA section production plant, so we estimated scientific principles. 112(c)(9)(B)(ii). fugitive emissions for those that did not Comment: In the proposed action, the Comment: One commenter stated that submit estimates. That was done using risk assessment modeling was the total chlorine and HCl emissions the highest emission factor calculated conducted by placing receptors at the from some of the facilities included in from the plants that did report fugitives. geographic center of census blocks the risk assessment were grossly The use of the ‘‘worst-case’’ factor was within 2 kilometers of the site and in underestimated. In support of their appropriately conservative for this the population-weighted centers of argument, the commenter pointed out assessment. census block groups or census tracks out potential inconsistencies in the The commenter compared the to 50 kilometers. Two commenters did background emissions data contained in emissions used in the assessment to not agree with that methodology for the docket. Specifically, the total 1991/1992 base year emissions in an determining receptor location for chlorine emissions from the Dow earlier report on this industry, the 1996 threshold pollutants. One commenter Chemicals, Freeport, Texas facility were Chlorine Production Summary Report, stated that EPA’s methodology would be reported in the risk assessment and correctly noted that there is a large more appropriate for cancer causing document to be 22 pounds per year (lb/ discrepancy between the emissions agent, where the risk is based on yr), but in the 1996 Chlorine Production levels for Dow Chemical’s plant in probabilities of health effects. The Summary Report, chlorine emissions Freeport, Texas. As a result of that commenter argued that for non-cancer from only one production process comment, we made a comparison of the (i.e., threshold pollutants) compounds, located at the Dow Chemicals facility emissions from all plants between these placing the receptors at the center of (the diaphragm cell process) were two sources of information. census tracks would not properly reported to be 9,800 lb/yr. The The comparison revealed that the identify the highest impacts close to the commenter stated that since emissions Dow Freeport facility is only one of only facility. They felt that it was more from other processes at the Dow facility two plants whose emissions used in the appropriate to measure the exposure of were not included in the summary risk assessment were lower than the the most exposed individual (e.g., report, the emissions were likely to be 1991/1992 base year emissions in the someone living at the fence line of a much higher. The commenter also noted 1996 summary report. In fact, the 2000/ facility or directly downwind). that the Dow facility had the lowest 2001 emissions used in the risk Response: We agree with the emissions (22 lb/yr) of facilities reported assessment for the other facilities with commenters that the greatest impacts in the risk assessment document and the reported emissions in both documents will likely occur near the facility for this highest chlorine production volume (1.8 averaged five times HIGHER than those source category. However, we do not million lb Cl2/yr), which also indicates reported in the 1996 summary agree with the commenters that our that the emissions from the Dow facility document. Clearly, the comparison does approach fails to meet statutory were underestimated. not lead to the conclusion that the risk requirements. We do not feel that According to the commenter, the assessment was based on grossly considering an ‘‘ample margin of safety’’ inconsistencies between the reports underestimated emissions. A review of means that we must demonstrate no risk undermine the credibility of the risk the data submitted by the two facilities or adverse health effects for a theoretical assessment to support a decision to not whose 2000/2001 emissions were person living at the fence line. Rather, regulate this source category. substantially lower than their 1991/1992 we feel it is appropriate to assess the Furthermore, the commenter stated that emissions did not result in any obvious risks at locations where people most they believe that the emission inventory errors or questionable assumptions that likely reside. A census block is the information provides justification for a could be disputed with the available smallest geographic unit for which the need to establish a MACT floor. The information. Furthermore, according to Census Bureau tabulates 100-percent commenter concluded that the risk the facility, the chlorine and HCl data. While census blocks in rural areas assessment was flawed because the emissions reported in the 1996 may be larger, many blocks correspond potential impacts on health and the summary document included emissions to individual city blocks in more environment were underestimated. from processes within the plant not populated areas. The commenter is Response: The primary sources of the related to chlorine production. That was correct in that an individual could live emission estimates used in the risk corrected for the 2000/2001 emissions closer to the plant than the center of the assessment for this source category were data submittal. Therefore, no changes census block, and our approach would responses submitted directly by the were made as a result of the review of have slightly underestimated risk. It is facilities in response to a request for the reported emissions data. just as likely, however, that the closest information under our authority in The comparison did result in the individual could live farther from the section 114 of the Clean Air Act. A concern that the emissions, particularly

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the fugitive emissions estimated using sources of HAP, and to establish standards set under CAA section the worst-case factor, had been NESHAP for the listed source categories 112(d)(4) did not have any adverse overestimated. As a point of and subcategories. In directing us how environmental effects, the Agency did comparison, we obtained the 2001 to establish MACT emission limits, not properly consider the issue. chlorine releases from the Toxic Release section 112(d)(3) of the CAA requires us Therefore, commenter stated that they Inventory (TRI) for all ten sites for to set the emission limitation at a level believed that EPA could not promulgate which fugitive emissions were that assures that all major sources standards under CAA section 112(d)(4) estimated using the worst-case factor. achieve the level of control at least as without contravening the CAA. We found that nine of the ten plants had stringent as that already achieved by the Response: While CAA section total chlorine fugitive releases reported better-controlled and lower-emitting 112(d)(4) makes no mention of in TRI that were less than the those used sources in each source category or environmental effects, we took the in the risk assessment. For instance, the subcategory. Therefore, the entire potential of such adverse effects into PPG facility in Lake Charles, Louisiana, MACT program is structured on a account when we issued our proposed reported 8,000 lb/yr of fugitive chlorine source category-specific basis. All action. In addition, CAA section releases for the entire site (a very large MACT standards developed to date have 112(c)(9)(B)(ii), which is the authority chemical complex). We estimated addressed emissions from specific we are citing in today’s final action to 31,178 lb/yr using the worst-case source categories. delete this subcategory, does require emission factor. We concluded that it There are instances where non- that we show there are no adverse was overly conservative to use these mercury chlorine production facilities environmental effects from emissions estimates in light of the TRI information are collocated with other source from the subcategory. and in fact, we likely overestimated the categories. However, based on the risk The level of our analysis at proposal fugitive emissions for these plants. assessment for chlorine and HCl was adequate to satisfy the requirements Therefore, in the revised modeling for emissions from chlor-alkali plants, the of CAA section 112(c)(9)(B)(ii). The this final action for chronic chlorine predicted impacts from chlorine and commenters did not suggest that they exposures, we used the total chlorine HCl at these chlor-alkali plants are believed there was the potential for fugitive releases from TRI in the revised extremely low. We believe that the adverse environmental effects from HCl assessment for eight plants. That is still human health and environmental or chlorine emissions from non-mercury conservative as these TRI values impacts from all sources in the category cell chlorine production plants. Were represent chlorine fugitive releases from even when collocated with other there any evidence that such adverse all processes at the site, not just the non- chlorine and HCl emissions will still be effects were likely, or even possible, we mercury cell chlorine production within an ample margin of safety to would have conducted a more intensive protect the public health, and will not processes. For two plants, company ecological risk assessment. cause adverse environmental effects. representatives provided a breakdown The commenters are correct, however, Moreover, as indicated in the preamble of the portion of the TRI emissions that that we did not discuss the ecological to the proposed rule, most major were from the non-mercury cell chlorine effects of chlorine. That was because, as production processes, and those values processes at the sites where non- was stated in the proposal preamble, we were used in the re-assessment. mercury cell chlorine production did not perform a separate evaluation of Comment: One commenter stated that facilities are located are subject to, or all chlorine emissions from non- will be subject to, NESHAP to reduce chronic chlorine exposure because mercury chlorine production facilities HAP emissions (67 FR 44714, July 3, chlorine is converted to HCl in the that are collocated with other source 2002). Therefore, it would not be atmosphere so rapidly. Following is a categories need to be reviewed as a appropriate to include emissions from brief summary of the environmental whole when evaluating public health those sources in an assessment for the effect of chlorine. risk, adverse environmental effects, and non-mercury cell chlorine production Atmospheric exposure is the primary possible control strategies. The source category conducted under the pathway for environmental effects from commenter stressed that other sources authority of CAA section 112(d)(4). chlorine emissions. However, since of chlorine and HCl should be included Comment: Two commenters stated most chlorine is converted to HCl, in the risk assessment under CAA that the environmental effects analysis studies have focused on the effects of section 112(d)(4). The commenter was was not adequate. One commenter HCl on vegetation. Although plant concerned that not accounting for all stated that potential ecological effects of exposures to elevated levels of chlorine chlorine and HCl emissions from a HCl emissions have not been properly can cause plant injury, it tends to be facility would provide the community referenced. One commenter stated that converted to other, less toxic forms with a false sense of assurance of EPA’s proposed action falls short of its rather rapidly in plants, and may not protection, and is not consistent with obligation to protect against result in the direct accumulation of the legislative intent of the CAA to environmental effects. According to the toxic pollutant residuals important in consider cumulative HAP exposure commenter, EPA has understated its the food chain. issues through an integrated approach statutory obligation in the proposed Plant studies have found foliar under CAA sections 112(d), 112(f), and action. The commenter referred to the damage due to chlorine emissions and 112(k). Therefore, the commenter legislative history, which indicates that foliar damage, decreased levels of requested that EPA evaluate the CAA section 112(d)(4) requires chlorophyl a and b, decreased leaf areas, potential for adverse health and standards that ‘‘would not result in obvious chlorosis, and a decline in fruit environmental impacts using adverse environmental effects which production due to chlorine emissions. conservative risk assessment would otherwise be reduced or There is evidence of effects to animals methodology that incorporates all eliminated.’’ The commenter listed the due to accidental and/or catastrophic known chlorine and HCl emissions from several shortcomings in the EPA’s exposures, but the chlorine a contiguous facility. environmental assessment. concentrations of these exposures are Response: Section 112 of the CAA The commenter concluded that unknown. However, there is no data on requires us to list categories and although EPA acknowledged that it had exposure to historic or atmospheric subcategories of major sources and area an obligation to ensure that any concentrations.

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More information is available on the likely to accumulate in the soil. For purposes of assessing the impacts effects of chlorine from aquatic Chlorine rapidly converts to HCl in the of today’s rule on small entities, small exposures. However, there is no atmosphere, and chlorine and HCl are entity is defined as: (1) A small business evidence that suggests that emissions of not believed to result in as defined by the Small Business chlorine from industrial sources in the biomagnification or bioaccumulation in Administrations’ regulations at 13 CFR air contribute significantly to aquatic the environment. Therefore, we do not 121.201; (2) a small governmental concentrations of chlorine. believe there will be adverse ecological jurisdiction that is a government of a One study reported a significant effects due to chlorine and HCl city, county, town, school district or decrease in phytoplankton activity emissions from non-mercury cell special district with a population of less following exposure to 0.1 ppm chlorine chlorine production plants. than 50,000; and (3) a small in cooling tower water. Additional organization that is any not-for-profit laboratory studies showed that IV. Statutory and Executive Order enterprise which is independently continuous exposure to 0.002 milligram Reviews owned and operated and is not per liter (mg/L) total residual chlorine A. Executive Order 12866: Regulatory dominant in its field. (TRC) resulted in depressed algal Planning and Review After considering the economic biomass in naturally-derived impacts of today’s final rule on small microcosms. Under Executive Order 12866 (58 FR entities, I certify that this action will not When exposed continuously for 96 51735, October 4, 1993) the Agency have a significant economic impact on hours to 0.05 mg/L TRC, the Eurasian must determine whether the regulatory a substantial number of small entities. water milfoil showed a significant action is ‘‘significant’’ and, therefore, This final action deletes the subcategory reduction in shoot and dry weights, subject to Office of Management and of sources that do not utilize mercury shoot length, and chlorophyll content. Budget (OMB) review and the cells to produce chlorine and caustic. Aquatic invertebrates are very requirements of the Executive Order. We conclude that no further control or sensitive to chlorine and reaction The Executive Order defines regulation is necessary. products of chlorine, with early life ‘‘significant regulatory action’’ as one stages showing the most sensitivity. For that is likely to result in a rule that may: D. Unfunded Mandates Reform Act example, free chlorine, (1) Have an annual effect on the Title II of the Unfunded Mandates monochloramine, and dichloroamine economy of $100 million or more or Reform Act of 1995 (UMRA), Public have been shown to reduce the rate of adversely affect in a material way the Law 104–4, establishes requirements for oyster larvae survival. Many studies economy, a sector of the economy, Federal agencies to assess the effects of have been performed, and the results are productivity, competition, jobs, the their regulatory actions on State, local, highly variable depending on the environment, public health or safety, or and Tribal governments and the private chlorine species, the lifestage of the State, local, or Tribal governments or sector. Under section 202 of the UMRA, invertebrate, and other factors such as communities; the EPA generally must prepare a salinity. The most sensitive aquatic (2) create a serious inconsistency or written statement, including a cost- species appears to be molluscan larvae, otherwise interfere with an action taken benefit analysis, for proposed and final with LC50 concentrations of 0.005 mg/L. or planned by another agency; rules with ‘‘Federal mandates’’ that may Sublethal effects have also been studied, (3) materially alter the budgetary result in expenditures by State, local, including reduced growth, reduced impact of entitlements, grants, user fees, and Tribal governments, in aggregate, or motility, and reproductive failure. or loan programs or the rights and to the private sector, of $100 million or The effects on fish also vary obligations of recipients thereof; or more in any 1 year. Before promulgating depending on the life stage and fish (4) raise novel legal or policy issues an EPA rule for which a written species, and environmental factors, such arising out of legal mandates, the statement is needed, section 205 of the as the pH, temperature, and type of President’s priorities, or the principles UMRA generally requires us to identify chlorine species. Larval stages are more set forth in this Executive Order. and consider a reasonable number of susceptible to effects, and freshwater It has been determined that this final regulatory alternatives and adopt the species are more sensitive than marine action is not a ‘‘significant regulatory least costly, most cost-effective, or least species. Free chlorine is generally more action’’ under the terms of Executive burdensome alternative that achieves toxic than residual chlorine; where the Order 12866 and is, therefore, not the objectives of the rule. The form of chlorine is dependent on the pH subject to OMB review. provisions of section 205 do not apply of the water. Sublethal effects such as when they are inconsistent with avoidance, reduction of diversity in B. Paperwork Reduction Act applicable law. Moreover, section 205 chlorinated effluents, reduction or Since there is no rule associated with allows us to adopt an alternative other elimination of spawning, abnormal this final action, there are no than the least costly, most cost-effective, larvae, reduced oxygen consumption, information collection requirements. or least burdensome alternative if we and gill damage have been noted. Many publish with the final rule an C. Regulatory Flexibility Act LC50 values were reported, ranging from explanation as to why that alternative 0.08 mg/L after 24 hours of exposure to The RFA generally requires that an was not adopted. TRC to 2.4 mg/L after 0.5 hours of agency conduct a regulatory flexibility Before we establish any regulatory exposure to TRC. analysis of any rule subject to notice requirements that may significantly or Acute and chronic exposures to and comment rulemaking requirements uniquely affect small governments, predicted chlorine and HCl under the Administrative Procedure Act including Tribal governments, we must concentrations around the sources are or any other statute unless the agency have developed under section 203 of the not expected to result in adverse certifies that the rule will not have a UMRA, a small government agency toxicity effects. These pollutants are not significant economic impact on a plan. The plan must provide for persistent in the environment. The substantial number of small entities. notifying potentially affected small chlorine and HCl emitted should not Small entities include small businesses, governments, enabling officials of significantly contribute to aquatic small organizations, and small affected small governments to have chlorine concentrations, and are not governmental jurisdictions. meaningful and timely input in the

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development of our regulatory proposals ensure ‘‘meaningful and timely input by I. National Technology Transfer with significant Federal Tribal officials in the development of Advancement Act intergovernmental mandates, and regulatory policies that have tribal informing, educating, and advising implications.’’ ‘‘Policies that have Tribal Section 12(d) of the National small governments on compliance with implications’’ is defined in the Technology Transfer Advancement Act the regulatory requirements. Executive Order to include regulations (NTTAA) of 1995 (Public Law 104–113; We have determined that this final that have ‘‘substantial direct effects on 15 U.S.C. 272 note) directs EPA to use action does not contain a Federal one or more Indian tribes, on the voluntary consensus standads in their mandate that may result in expenditures relationship between the Federal regulatory and procurement activities of $100 million or more for State, local, government and the Indian tribes, or on unless to do so would be inconsistent and Tribal governments, in the the distribution of power and with applicable law or otherwise aggregate, or the private sector in any 1 responsibilities between the Federal impractical. Voluntary consensus year. Thus, today’s final action is not government and Indian tribes.’’ standards are technical standards (e.g., subject to the requirements of sections The final action does not have Tribal materials specifications, test methods, 202 and 205 of the UMRA. In addition, implications. It will not have substantial sampling procedures, business this final action contains no regulatory direct effects on Tribal governments, on practices) developed or adopted by one requirements. Therefore, the final action the relationship between the Federal or more voluntary consensus bodies. is not subject to the requirements of government and Indian tribes, or on the The NTTAA directs EPA to provide section 203 of the UMRA. distribution of power and Congress, through annual reports to the responsibilities between the Federal E. Executive Order 13132: Federalism Office of Management and Budget government and Indian tribes, as (OMB), with explanations when an Executive Order 13132 (64 FR 43255, specified in Executive Order 13175. agency does not use available and August 10, 1999) requires EPA to Thus, Executive Order 13175 does not applicable voluntary consensus develop an accountable process to apply to the final action. standards. ensure ‘‘meaningful and timely input by State and local officials in the G. Executive Order 13045: Protection of The final action does not involve development of regulatory policies that Children From Environmental Health technical standards, therefore, the have federalism implications.’’ ‘‘Policies and Safety Risks NTTAA does not apply. that have federalism implications’’ is The Executive Order 13045 applies to J. Congressional Review Act defined in the Executive Order to any rule (1) that OMB determines is include regulations that have ‘‘economically significant,’’ as defined The Congressional Review Act, 5 ‘‘substantial direct effects on the States, under Executive Order 12866, and (2) U.S.C. 801 et seq., as added by the Small on the relationship between the national the EPA determines that the Business Regulatory Enforcement Government and the States, or on the environmental health or safety risk Fairness Act of 1996, generally provides distribution of power and addressed by the rule has a that before a rule may take effect, the responsibilities among the various disproportionate effect on children. If agency promulgating the rule must levels of Government.’’ the regulatory action meets both criteria, submit a rule report, which includes a The final action does not have the EPA must evaluate the copy of the rule, to each House of the federalism implications. It will not have environmental, health, or safety aspects Congress and to the Comptroller General substantial direct effects on the States, relevant to children and explain why of the United States. Today’s final on the relationship between the national the rule is preferable to other potentially action is not a rule, therefore, the Government and the States, or on the effective and reasonably feasible Congressional Review Act does not distribution of power and alternatives considered by the EPA. apply. responsibilities among the various Since there is no rule associated with levels of Government, as specified in this final action, Executive Order 13045 List of Subjects in 40 CFR Part 63 Executive Order 13132. Thus, Executive does not apply. Order 13132 does not apply to the final Environmental protection, Air H. Executive Order 13211: Actions That action. emissions control, Hazardous air Significantly Affect Energy Supply, pollutants. F. Executive Order 13175: Consultation Distribution, or Use Dated: August 29, 2003. and Coordination With Indian Tribal The final action is not subject to Governments Executive Order 13211 (66 FR 28355, Marianne L. Horinko, Executive Order 13175 (65 FR 67249, May 22, 2001) because it is not a Acting Administrator. November 6, 2000) requires EPA to significant regulatory action under [FR Doc. 03–22929 Filed 12–18–03; 8:45 am] develop an accountable process to Executive Order 12866. BILLING CODE 6560–50–P

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