2 CONTEXTO TERRITORIAL: LA CIUDAD DE COMODORO RIVADAVIA
2.1 Comodoro Rivadavia, polo regional en el S.U.A y ciudad intermedia petrolera
2.1.2 Recorrido histórico
MACr New& Modified Sources Existing NESHAPs Early Reductions urban Area Sources Delegations Permit Program
Existing S/L
Air Toxics Programs Technical Support crc AirRISC Small Business•
Figure 27
Relationship Among Major Activities of Section 112 of Clean Air
Act Amendaents of 1990 and Responsibilities of the Office of Air Quality Planning and Standards*
Divisions to Implement Them ESD OPERATIONS HAP List Great Waters Study Utility Study Petitions Modifications SC List Source „ . ,, . If 18mo.late
Permit Hammer 1 -^e---f Schedule
Geographic Initiatives Early Reductions Case X Case .. . MAcr J Major, AQMD GACT MACT PG/ACI Approval/Delegations NSPS
Implementation/Enabling
PcrmitUng/ Enforcement Residual Risk Other Functions Scti I29MWOMWI1 Mercury Sludy n2S Sillily rit>glVSNlU-|)(Hls AQMD/SSCD State/local Support (NATICH/AirRisc/CrC)Small Bus. Assist.
NAS Study Risk mgmt.
Commission
EPA Risk Study
cr>
162
provisions were not yet proposed or promulgated; and the general provisions were almost dismantled in the high-
priority effort to get the hazardous organic NESHAP
proposed.
7.4 Having a Strategy Can Benefit Regulatory Development
ͣ
The experience of developing the general provisions illustrates how regulations can benefit from a strategy
developed to guide their progress through the system. Once
the purpose of a regulation is clearly identified, a
strategy and schedule (i.e., the means) can be devised to
achieve that end. Some of the elements of the regulatory
development process that such a strategy might address are listed in Figure 28. (This list is by no means exhaustive.) Like any strategy, the strategy developed for a regulation
limits the choice of actions, helps focus priorities, and helps in selecting reasonable and preferred options to
resolve issues. The strategy (or strategies) chosen to
guide the development of a regulation can make a significant
difference in the success or failure of the outcome of the
project.
There are several purposes for seeking input from
persons outside the Agency during the regulatory development
process. One of the most important purposes is to collect
information that can be used to develop and support the regulation. Another reason is to develop an understanding
163 Figure 28
Some Elements of the Regulatory Development Process
that Can Benefit from the Application
of a Strategic Approach
The timing of the process (which would influence the project's schedule).
The Agency review process suggested and chosen (which also relates to the timing of the process).
The participants on the Agency work group.
The major and minor issues to take on or to avoid (when there is a
choice).
How cind when to relate the project to existing policy and regulatory precedent.
ͣ
How and when to make new policy decisions.
Whether and how to connect the regulation to related regulations
lander development.
Which elements of the project to codify as regulation and which to issue as non-binding guidance.
How to handle the economic analyses required (if any). How to seek input from persons inside the Agency, including assigned work group members, "unofficial" project team members. Agency management, and other interested parties.
Whether and how to seek input from persons outside the Agency, including "customers" such as the regulated and the environmental protection communities, citizens, and State and local air
pollution control officials who will be affected by or have an interest in the regulation.
164
of the interests and concerns of people who will be affected by the regulation. These people include the representatives from the industries who will bear the economic burden of
complying with the regulation, government officials who will
be implementing and enforcing the regulation (i.e., EPA and State, local, territorial, and tribal governments), citizens
who are concerned about their health and the effects of the
activities of industry on their local environment, and
environmental organizations who serve the public interest by being "watchdogs" over the government bureaucracy. The
information that is collected is used to develop a
regulation that, hopefully, will be accepted by the outside
community. It can also be used to assist the Agency officials working on the regulation in understanding the public comments that are received on the regulation between proposal and promulgation.
Seeking outside input during the development of a regulation can contribute to the rule's acceptance both inside and outside the agency. A rule that has already
gained acceptance in this way has a better chance of
receiving a positive reception at 0MB.
7.5 Intra-agency Relations are not Always Harmonious
In drafting rules and moving them through the system, EPA's offices do not always work together in perfect
165
experiences with the Pollutant Assessment Branch over control of the "modifications guidance" project and with OAQPS's Stationary Source Compliance Division over
recordkeeping and reporting requirements in the general provisions provide ample evidence for this statement.
The Section 112(g) experience shows how an internal turf battle and EPA management decisions led to potential regulatory outcomes in the "modifications" rule and the general provisions that may increase the burden on industry from having to comply with different sets of requirements depending arbitrarily on whether construction activities are
undertaken before or after MACT standards are established.
More fundamentally, it shows that internal Agency relations are not always copacetic and can interfere with the goal of creating a rational body of regulations.™ Regulatory
content can be influenced by human dramas as much as by competent scientific and technical research and policy
making. Of course, when the Agency presents its work to the public, these fractious influences usually remain hidden.
The recent fuss by SSCD over the general provisions (and other projects as well) shows how important it is for an office participating in the development of a regulation to express its concerns appropriately and early in the process; it also shows how critical it is for the lead
office to document its responses to comments received from
166
Although offices like SSCD often have valid opinions
about how a rule should be drafted, they may not recognize
how much negotiation and compromise are involved in getting a rule proposed and promulgated. The key here is that ESD
is responsible for carrying Title III rule packages through the system, up the EPA management chain and through 0MB, so
it is ESD that must fight the battles for the Agency to
establish NESHAPs, general provisions, and the Title III
infrastructure programs. For this reason, offices like SSCD often do not understand why ESD adopts policies or makes
changes to draft rules in ways that may not seem to be the
"right" thing to do. This situation sometimes creates
tension between EPA offices working on a rule.^'
7.6 The Regulatory Development Process Does not Follow a
Cookbook Formula
The process of developing a regulation, like any complex project to be managed, can be broken down into
component tasks. Those tasks fulfill objectives which need to be achieved in order to bring the project to a successful completion. Like any large organization whose function it is to repeat the same process over and over, EPA has
developed systems to guide and manage the regulatory
development process. These systems are organized around the internal needs of the Agency as well as external legal
167
As has been discussed throughout this paper, internal and external pressures during the course of developing a
regulation often influence the process so that it does not
exactly follow EPA's standard system for regulatory development. Chapters III through VI identified and
described the more interesting and significant elements in
the process of developing the proposed general provisions
regulation and put them in the broader context of how
regulations are developed at the federal level and at EPA.
Together, these chapters showed how the regulatory
development process, although guided by institutionalized
rules and guidelines, does not necessarily take place
according to strict rules and formulas. Rather, in many
instances, flexibility is needed to respond to outside
events and internal and external policies and politics, and
strategic choices need to be made when options present themselves. The preceding discussion has illustrated how hvunan and political factors influenced the composition of the general provisions regulation and it has shown how and why events in the regulatory development process for the general provisions often differed from the textbook
168
ENDNOTES AND REFERENCES
1. "The Clean Air Act Amendments of 1990: Summary
Materials," U.S. Environmental Protection Agency, Office of Air and Radiation, November 15, 1990.
2. On October 26, 1990, the House of Representatives
passed the measure with a 401-25 roll call vote. On
October 27, 1990, the Senate passed the measure with an
89-10 roll call vote.
Legislative Chronology of the Clean Air Act Amendments
of 1990, "The Clean Air Act Amendments of 1990: Summary Materials," U.S. Environmental Protection
Agency, Office of Air and Radiation, November 15, 1990.
3. Reilly, William K., Administrator of U.S. Environmental
Protection Agency, Testimony Before the Subcommittee on Oversight and Investigations of the Committee on Energy and Commerce, U.S. House of Representatives, November
12, 1991.
4. Committee on Environment and Public Works, U.S. Senate,
together with Additional and Minority Views, Report Number 101-228 to Accompany S. 1630, Clean Air Act
Amendments of 1989, December 20, 1989, p. 128.
5. Stationary source is defined in Section 111(a)(3) of the Clean Air Act as amended in August 1977.
6. Coitimittee on Energy and Commerce, U.S. House of
Representatives, together with Additional,
Supplemental, and Dissenting Views, Report Number 101- 490 (Part I) on H.R. 3030, Clean Air Act Amendments of 1990, May 17, 1990, p. 152.
7. Section 112(b) of the Clean Air Act of 1970 and the
Clean Air Act of 1977.
8. Committee on Energy and Commerce, U.S. House of Representatives, together with Additional,
Supplemental, and Dissenting Views, Report Number 101-
490 (Part I) on H.R. 3030, Clean Air Act Amendments of
1990, May 17, 1990, p. 322.
9. Committee on Environment and Public Works, U.S. Senate,
together with Additional and Minority Views, Report
Number 101-228 to Accompany S. 1630, Clean Air Act Amendments of 1989, December 20, 1989, p. 131.
169 10. Committee on Environment and Public Works, U.S. Senate,
together with Additional and Minority Views, Report Number 101-228 to Accompany S. 1630, Clean Air Act
Amendments of 1989, December 20, 1989, p. 128. 11. Committee on Energy and Commerce, U.S. House of
Representatives, together with Additional,
Supplemental, and Dissenting Views, Report Number 101-
490 (Part I) on H.R. 3030, Clean Air Act Amendments of 1990, May 17, 1990, p. 151, pp. 322-323.
12. Committee on Environment and Public Works, U.S. Senate,
together with Additional and Minority Views, Report Number 100-231 to Accompany S. 1894, Clean Air
Standards Attainment Act of 1987, November 20
(legislative day, November 19), 1987, pp. 192-199.
13. Mohin, Timothy J., "Clean Air Act Title III Challenges
EPA," Environmental Protection (June 1992).
«
14. Robinson, James C, and Pease, William S., "Public Health and the Law: From Health-Based to Technology- Based Standards for Hazardous Air Pollutants," American
Journal of Public Health. Vol. 81, No. 11, pp. 1518-
1523 (November 1991).
15. Quarles, John, and Lewis, William H., Jr., "The Foundation," The NEW Clean Air Act; A Guide to the
Clean Air Program As Amended in 1990. Morgan, Lewis &
Bockius, Washington, D.C., 1990, pp. 31-33.
16. "In 1987 the Court of Appeals for the District of
Columbia reviewed decisions made by EPA with respect to vinyl chloride emissions [41 Fed. Reg. 46,560
(1976)]...The Court found that cost cannot be
considered when establishing a safe level of exposure to toxics air pollutants. It is only in determining the margin of safety that EPA is authorized to consider
cost and other factors."
Committee on Environment and Public Works, U.S. Senate,
together with Additional and Minority Views, Report
Niomber 101-228 to Accompany S. 1630, Clean Air Act Amendments of 1989, December 20, 1989, pp. 131-132. The Court also found that EPA must follow a two step
process to establish emission standards that provide "an ample margin of safety" "to protect public health."
First, the Administrator has to make an initial
determination of what is "safe." "The Administrator's
decision does not require a finding that "safe" means
170
[free] from uncertainty." "This determination must be
based exclusively upon the Administrator's
determination of the risk to health at a particular
emission level...The Administrator cannot under any
circumstances consider cost and technological
feasibility at this stage of the analysis." Second,
the Administrator has to determine what constitutes an
"ample margin of safety," i.e., a level of risk below
that previously determined to be "safe" that would be achieved by a more stringent level of emissions
control. "It is only at this point of the regulatory
process that the Administrator may set the emission
• standard at the lowest level that is technologically
feasible."
Squillace, Mark, "Performance Standards for Stationary
Sources," Natural Resources Defense Council v. EPA, 824 F. 2d 1146 en banc, (D.C. Cir. 1987), Air Pollution. Environmental Law Volume Three, Anderson Publishing,
Cincinnati, Ohio, pp. 276-284.
17. Robinson, James C, and Pease, William S., "Public Health and the Law: From Health-Based to Technology-
Based Standards for Hazardous Air Pollutants," American
Journal of Public Health. Vol. 81, No. 11, p. 1521
(November 1991).
18. The EPA responded by shifting the focus of the program from health-based standards to technology-based
standards, with a post hoc analysis of the risk
remaining after the "best achievable control
technology" had been applied, and by moving to develop
standards for source categories instead of for
pollutants. Although these approaches became the basis for the revisions to Section 112 enacted in 1990, the
legal status of such policies was in doubt since the existing law required pollutants rather than source
categories to be listed, all sources of every listed pollutants to be controlled, and for health
considerations to supersede considerations of cost and technical feasibility (essentially, technology-
forcing) . These policies were explicitly rejected by
the Court of Appeals for the District of Colximbia in 1987 after being challenged by the Natural Resources
Defense Council. The Court's decision put EPA in the position of having to consider repealing emission
standards that had already been estaljlished using the technology-based approach that considered cost.
Committee on Environment and Public Works, U.S. Senate,
171
Number 101-228 to Accompany S. 1630, Clean Air Act
Amendments of 1989, December 20, 1989, pp. 131-132,
19. Mohin, Timothy J., "Clean Air Act Title III Challenges
EPA," Environmental Protection (June 1992).
20. Robinson, James C, and Pease, William S., "Public Health and the Law: From Health-Based to Technology- Based Standards for Hazardous Air Pollutants," American Journal of Public Health. Vol. 81, No. 11, pp. 1518- 1523 (November 1991).
21. The 2.7 billion pounds are emitted from stationary
sources alone; however, motor vehicles are estimated to account for almost 60 per cent of total cancer
incidence from toxic air emissions.
Committee on Environment and Public Works, U.S. Senate,
together with Additional and Minority Views, Report Number 101-228 to Accompany S. 1630, Clean Air Act
Amendments of 1989, December 20, 1989, p. 128.
Committee on Energy and Commerce, U.S. House of Representatives, together with Additional,
Supplemental, and Dissenting Views, Report Number 101-
490 (Part I) on H.R. 3030, Clean Air Act Amendments of 1990, May 17, 1990, p. 317.
22. Committee on Environment and Public Works, U.S. Senate,
together with Additional and Minority Views, Report Number 101-228 to Accompany S. 1630, Clean Air Act Amendments of 1989, December 20, 1989, p. 128. 23. Committee on Energy and Commerce, U.S. House of
Representatives, together with Additional,
Supplemental, and Dissenting Views, Report Number 101-
490 (Part I) on H.R. 3030, Clean Air Act Amendments of 1990, May 17, 1990, p. 319.
24. Committee on Environment and Public Works, U.S. Senate,
together with Additional and Minority Views, Report
Number 101-228 to Accompany S. 1630, Clean Air Act Amendments of 1989, December 20, 1989, p. 128-131.
25. Committee on Environment and Public Works, U.S. Senate,
together with Additional and Minority Views, Report
Number 101-228 to Accompany S. 1630, Clean Air Act Amendments of 1989, December 20, 1989, pp. 132-133. 26. Committee on Energy and Commerce, U.S. House of
Representatives, together with Additional,
172 490 (Part I) on H.R. 3 030, Clean Air Act Amendments of 1990, May 17, 1990, pp. 150-157, pp. 315-324.
27. "This approach to regulation of toxic pollutants is not without precedent. It follows the general model which
has been employed since the mid-1970's to control toxic effluents discharged to surface waters by major
industrial point sources."
Committee on Environment and Public Works, U.S. Senate,
together with Additional and Minority Views, Report
Number 101-228 to Accompany S. 1630, Clean Air Act Amendments of 1989, December 20, 1989, p. 133. 28. Section 112(d)(2) of the CAAA of 1990.
29. Additionally, amended Section 112 includes provisions
that address toxic air pollution in urban areas caused by "area sources," high-risk point sources, long-range transport of HAPs, and emergency release planning for
industrial facilities.
30. Robinson, James C, and Pease, William S., "Public Health and the Law: From Health-Based to Technology- Based Standards for Hazardous Air Pollutants," American
Journal of Public Health. Vol. 81, No. 11, pp. 1518
(November 1991).
31. Under Section 112(e) of the CAAA of 1990, EPA must issue regulations for the different source categories according to the following schedule:
40 source categories by November 15, 1992 Coke oven emissions by December 31, 1992
25% of all source categories by November 15, 1994 50% of all source categories by November 15, 1997 100% of all source categories by November 15, 2000
The EPA is developing rules for three industry groups
to address the 1992 requirements of the schedule: steel coke oven batteries, dry cleaners, and the
chemical manufacturing industry. The hazardous organic NESHAP (HON) (for the chemical manufacturing industry)
alone covers more than 400 different processes or source categories. The EPA will count the HON as one source category in order to give chemical manufacturers
flexibility in developing regulatory strategies that
include emissions averaging.
32. Section 112(f)(1) for EPA and Section 112(o) for the National Academy of Sciences.
173 33. Harnett, William, Assistant to the Director of the
Emissions Standards Division, Personal Communications, December 7, 1992.
34. The Office of Air and Radiation (OAR) is one of EPA's
chief "program" offices since it is charged with
implementing the majority of the Agency's programs that touch on air quality and pollution issues. As such, OAR is directly or indirectly involved with
implementing a number of federal statutes, including, first and foremost, the Clean Air Act, the Resource Conservation and Recovery Act, and the Toxic Substances
ͣ
Control Act.
35. The ESD has chosen to codify each standard established
for a source category pursuant to amended Section 112 in a subpart (or multiple subparts) of 40 CFR Part 63.
(Parts in the CFR are divided into subparts which are lettered and arranged alphabetically from A through Z, AA through ZZ, etc.) This codification scheme follows the previous codification formats for New Source
Performance Standards (NSPS) in 40 CFR Part 60 and
National Emission Standards for Hazardous Air
Pollutants (NESHAP) in 40 CFR Part 61.
36. Additional reasons for creating a new Part 63 are the following: (1) existing NESHAP in Part 61 must be reviewed and, if appropriate, revised to comply with the standard-setting requirements of new Section 112 within 10 years of the date of enactment. Vfhen such a