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					                                                                                                                                        Thursday,
                                                                                                                                        December 3, 2009




                                                                                                                                        Part II

                                                                                                                                        Environmental
                                                                                                                                        Protection Agency
                                                                                                                                        40 CFR Part 63
                                                                                                                                        National Emission Standards for
                                                                                                                                        Hazardous Air Pollutants: Area Source
                                                                                                                                        Standards for Paints and Allied Products
                                                                                                                                        Manufacturing; Final Rule
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                                                   63504            Federal Register / Vol. 74, No. 231 / Thursday, December 3, 2009 / Rules and Regulations

                                                   ENVIRONMENTAL PROTECTION                                and Policy Analysis Group, Office of Air                   Significantly Affect Energy Supply,
                                                   AGENCY                                                  Quality Planning and Standards (C404–                      Distribution, or Use
                                                                                                           05), Environmental Protection Agency,                   I. National Technology Transfer and
                                                   40 CFR Part 63                                          Research Triangle Park, North Carolina                     Advancement Act
                                                                                                                                                                   J. Executive Order 12898: Federal Actions
                                                   [EPA–HQ–OAR–2008–0053; FRL–8983–5]
                                                                                                           27711, telephone number: (919) 541–                        To Address Environmental Justice in
                                                                                                           3609; fax number: (919) 541–0242; e-                       Minority Populations and Low-Income
                                                   RIN 2060–AN47                                           mail address: payne.melissa@epa.gov.                       Populations
                                                                                                           SUPPLEMENTARY INFORMATION: The                          K. Congressional Review Act
                                                   National Emission Standards for                         supplementary information in this
                                                   Hazardous Air Pollutants: Area Source                                                                         I. General Information
                                                                                                           preamble is organized as follows:
                                                   Standards for Paints and Allied                                                                               A. Does this action apply to me?
                                                   Products Manufacturing                                  I. General Information
                                                                                                              A. Does this action apply to me?
                                                                                                              B. Where can I get a copy of this                     The regulated categories and entities
                                                   AGENCY:  Environmental Protection                                                                             potentially affected by this final rule are
                                                   Agency (EPA).                                                 document?
                                                                                                              C. Judicial Review                                 shown in the table below. You are
                                                   ACTION: Final rule.                                     II. Background Information for This Final             subject to this subpart if you own or
                                                                                                                 Rule                                            operate a facility that performs paints
                                                   SUMMARY: EPA is issuing national                        III. Summary of Changes Since Proposal                and allied products manufacturing that
                                                   emission standards for control of                          A. Applicability                                   is an area source of hazardous air
                                                   hazardous air pollutants (HAP) for the                     B. Standards and Compliance                        pollutant (HAP) emissions and
                                                   Paints and Allied Products                                    Requirements
                                                                                                              C. Reporting and Recordkeeping                     processes, uses, or generates materials
                                                   Manufacturing area source category. The
                                                                                                                 Requirements                                    containing the following HAP: benzene,
                                                   final rule establishes emission standards
                                                                                                              D. Definitions                                     methylene chloride, and compounds of
                                                   in the form of management practices for
                                                                                                              E. Other                                           cadmium, chromium, lead, and nickel.
                                                   volatile HAP, and emission standards in
                                                                                                           IV. Summary of Final Standards                           The paints and allied products
                                                   the form of equipment standards for                        A. Do these standards apply to my source?
                                                   particulate HAP. The emissions                             B. When must I comply with these
                                                                                                                                                                 manufacturing area source rule
                                                   standards for new and existing sources                        standards?                                      (CCCCCCC) covers all coatings, but does
                                                   are based on EPA’s determination as to                     C. What processes does this final rule             not include resin manufacturing, which
                                                   what constitutes the generally available                      address?                                        is covered by the chemical
                                                   control technology or management                           D. What are the emissions control                  manufacturing area source standard
                                                   practices (GACT) for the area source                          requirements?                                   (VVVVVV). Facilities that manufacture
                                                                                                              E. What are the initial compliance                 both resins and coatings are required to
                                                   category.
                                                                                                                 requirements?                                   comply with both rules. Paints and
                                                   DATES: This final rule is effective on                     F. What are the continuous compliance
                                                                                                                 requirements?
                                                                                                                                                                 allied products are defined in Sec.
                                                   December 3, 2009.                                                                                             63.11607 as any material such as a
                                                                                                              G. What are the notification,
                                                   ADDRESSES: EPA has established a                                                                              paint, ink, or adhesive that is intended
                                                                                                                 recordkeeping, and reporting
                                                   docket for this action under Docket ID                        requirements?                                   to be applied to a substrate and consists
                                                   No. EPA–HQ–OAR–2008–0053. All                           V. Summary of Comments and Responses                  of a mixture of resins, pigments,
                                                   documents in the docket are listed in                      A. Applicability                                   solvents, and/or other additives.
                                                   the Federal Docket Management System                       B. Compliance/Implementation Dates                 Typically, the industries that
                                                   index at http://www.regulations.gov                        C. De Minimis Thresholds and                       manufacture these products are
                                                   index. Although listed in the index,                          Subcategorization
                                                                                                                                                                 described by Standard Industry
                                                   some information is not publicly                           D. Emission Standards and Management
                                                                                                                 Practices                                       Classification (SIC) codes 285 or 289
                                                   available, e.g., confidential business                     E. Testing, Monitoring, and Inspection             and North American Industry
                                                   information (CBI) or other information                        Requirements                                    Classification System (NAICS) codes
                                                   whose disclosure is restricted by statute.                 F. Reporting and Recordkeeping                     3255 and 3259 and are produced by
                                                   Certain other material, such as                               Requirements                                    physical means, such as blending and
                                                   copyrighted material, will be publicly                     G. Baseline Emissions and Emission                 mixing, as opposed to chemical
                                                   available only in hard copy form.                             Reductions                                      synthesis means, such as reactions and
                                                   Publicly available docket materials are                    H. Title V Requirements                            distillation. The source category does
                                                   available either electronically in http://              VI. Impacts of the Final Standards
                                                                                                           VII. Statutory and Executive Order Reviews
                                                                                                                                                                 not include the following: (1) The
                                                   www.regulations.gov or in hard copy at                                                                        manufacture of products that do not
                                                                                                              A. Executive Order 12866: Regulatory
                                                   the EPA Docket Center, Public Reading                         Planning and Review                             leave a dried film of solid material on
                                                   Room, EPA West, Room 3334, 1301                            B. Paperwork Reduction Act                         the substrate, such as thinners, paint
                                                   Constitution Ave., NW., Washington,                        C. Regulatory Flexibility Act                      removers, brush cleaners, and mold
                                                   DC. The Public Reading Room is open                        D. Unfunded Mandates Reform Act                    release agents; (2) the manufacture of
                                                   from 8:30 a.m. to 4:30 p.m., Monday                        E. Executive Order 13132: Federalism               electroplated and electroless metal
                                                   through Friday, excluding legal                            F. Executive Order 13175: Consultation             films; (3) the manufacture of raw
                                                   holidays. The telephone number for the                        and Coordination With Indian Tribal             materials, such as resins, pigments, and
                                                   Public Reading Room is (202) 566–1744,                        Governments
                                                                                                                                                                 solvents used in the production of
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                                                   and the telephone number for the Air                       G. Executive Order 13045: Protection of
                                                                                                                 Children From Environmental Health              paints and allied products; 1 and (4)
                                                   Docket is (202) 566–1742.                                     and Safety Risks                                activities by end users of paints or allied
                                                   FOR FURTHER INFORMATION CONTACT:                           H. Executive Order 13211: Actions                  products to ready those materials for
                                                   Melissa Payne, Regulatory Development                         Concerning Regulations That                     application.
                                                      1 Production of paint thinners and paint remover     covered under the Plating and Polishing Operations    manufacturing is covered under the Inorganic
                                                   is covered under the Industrial Organic Chemical        Area Source NESHAP. Resins manufacturing is           Pigment Manufacturing Area Source NESHAP.
                                                   Manufacturing Area Source NESHAP, and                   covered under the Plastic Materials and Resins
                                                   electroplated and electroless metal films are           Manufacturing Area Source NESHAP and pigments



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                                                                     Federal Register / Vol. 74, No. 231 / Thursday, December 3, 2009 / Rules and Regulations                                              63505

                                                                                                              NAICS
                                                                       Category                                                                           Examples of regulated entities
                                                                                                              code 2

                                                   Paint & Coating Manufacturing ..................             325510     Area source facilities engaged in mixing pigments, solvents, and binders into paints
                                                                                                                             and other coatings, such as stains, varnishes, lacquers, enamels, shellacs, and
                                                                                                                             water repellant coatings for concrete and masonry.
                                                   Adhesive Manufacturing .............................         325520     Area source facilities primarily engaged in manufacturing adhesives, glues, and
                                                                                                                             caulking compounds.
                                                   Printing Ink Manufacturing .........................         325910     Area source facilities primarily engaged in manufacturing printing inkjet inks and
                                                                                                                             inkjet cartridges.
                                                   All Other Miscellaneous Chemical Product                     325998     Area source facilities primarily engaged in manufacturing indelible ink, India ink writ-
                                                      and Preparation Manufacturing.                                         ing ink, and stamp pad ink.



                                                      This table is not intended to be                         EPA to convene a proceeding for                       identified 30 HAP that pose the greatest
                                                   exhaustive, but rather provides a guide                     reconsideration, ‘‘[i]f the person raising            potential health threat in urban areas,
                                                   for readers regarding entities likely to be                 an objection can demonstrate to EPA                   and these HAP are referred to as the ‘‘30
                                                   affected by this action. To determine                       that it was impracticable to raise such               urban HAP.’’ A primary goal of the
                                                   whether your facility is regulated by this                  objection within [the period for public               Strategy is to achieve a 75 percent
                                                   action, you should examine the                              comment] or if the grounds for such                   reduction in cancer incidence
                                                   applicability criteria in 40 CFR                            objection arose after the period for                  attributable to HAP emitted from
                                                   63.11599, subpart CCCCCCC (NESHAP                           public comment (but within the time                   stationary sources.
                                                   for Area Sources: Paints and Allied                         specified for judicial review) and if such               Under CAA section 112(d)(5), we may
                                                   Products Manufacturing). If you have                        objection is of central relevance to the              elect to promulgate standards or
                                                   any questions regarding the                                 outcome of the rule.’’ Any person                     requirements for area sources ‘‘which
                                                   applicability of this action to a                           seeking to make such a demonstration to               provide for the use of generally
                                                   particular entity, consult either the state                 us should submit a Petition for                       available control technologies or
                                                   delegated authority or the EPA regional                     Reconsideration to the Office of the                  management practices (GACT) by such
                                                   representative as listed in 40 CFR 63.13                    Administrator, U.S. EPA, Room 3000,                   sources to reduce emissions of
                                                   of subpart A (General Provisions).                          Ariel Rios Building, 1200 Pennsylvania                hazardous air pollutants.’’ Additional
                                                   B. Where can I get a copy of this                           Ave., NW., Washington, DC 20460, with                 information on GACT is found in the
                                                   document?                                                   a copy to both the person(s) listed in the            Senate report on the legislation (Senate
                                                                                                               preceding FOR FURTHER INFORMATION                     Report Number 101–228, December 20,
                                                     In addition to being available in the                     CONTACT section, and the Associate                    1989), which describes GACT as:
                                                   docket, an electronic copy of this                          General Counsel for the Air and
                                                   proposed action will also be available                                                                              * * * methods, practices and techniques
                                                                                                               Radiation Law Office, Office of General               which are commercially available and
                                                   on the Worldwide Web (WWW) through                          Counsel (Mail Code 2344A), U.S. EPA,                  appropriate for application by the sources in
                                                   EPA’s Technology Transfer Network                           1200 Pennsylvania Ave., NW.,                          the category considering economic impacts
                                                   (TTN). A copy of this proposed action                       Washington, DC 20460.                                 and the technical capabilities of the firms to
                                                   will be posted on the TTN’s policy and                                                                            operate and maintain the emissions control
                                                   guidance page for newly proposed or                         II. Background Information for This                   systems.
                                                   promulgated rules at the following                          Final Rule
                                                                                                                                                                     Consistent with the legislative history,
                                                   address: http://www.epa.gov/ttn/oarpg.                        Section 112(d) of the Clean Air Act                 we can consider costs and economic
                                                   The TTN provides information and                            requires EPA to establish national                    impacts in determining GACT. This is
                                                   technology exchange in various areas of                     emission standards for hazardous air                  particularly important when developing
                                                   air pollution control.                                      pollutants (NESHAP) for both major and                regulations, like this one, that may
                                                   C. Judicial Review                                          area sources of HAP that are listed for               impact many small businesses, as
                                                      Under section 307(b)(1) of the Clean                     regulation under CAA section 112(c). A                defined by the Small Business
                                                   Air Act (CAA), judicial review of this                      major source emits or has the potential               Administration.
                                                   final rule is available only by filing a                    to emit 10 tons per year (tpy) or more                  Determining what constitutes GACT
                                                   petition for review in the United States                    of any single HAP or 25 tpy or more of                involves considering the control
                                                   Court of Appeals for the District of                        any combination of HAP. An area                       technologies and management practices
                                                   Columbia Circuit by February 1, 2010.                       source is a stationary source that is not             that are generally available to the area
                                                   Under section 307(b)(2) of the CAA, the                     a major source.                                       sources in the source category. We also
                                                   requirements established by this final                        Section 112(k)(3)(B) of the CAA calls               consider the standards applicable to
                                                   rule may not be challenged separately in                    for EPA to identify at least 30 HAP                   major sources in the same industrial
                                                   any civil or criminal proceedings                           which, as the result of emissions from                sector to determine if the control
                                                   brought by EPA to enforce these                             area sources, pose the greatest threat to             technologies and management practices
                                                   requirements.                                               public health in the largest number of                are transferable and generally available
                                                      Section 307(d)(7)(B) of the CAA                          urban areas. Section 112(c)(3) requires               to area sources. In appropriate
                                                   further provides that ‘‘[o]nly an                           EPA to list sufficient categories or                  circumstances, we may also consider
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                                                   objection to a rule or procedure which                      subcategories of area sources to ensure               technologies and practices at area and
                                                   was raised with reasonable specificity                      that area sources representing 90                     major sources in similar categories to
                                                   during the period for public comment                        percent of the emissions of the 30 urban              determine whether such technologies
                                                   (including any public hearing) may be                       HAP are subject to regulation. EPA                    and practices could be considered
                                                   raised during judicial review.’’ This                       implemented these provisions in 1999                  generally available for the area source
                                                   section also provides a mechanism for                       in the Integrated Urban Air Toxics                    category at issue. Finally, as noted
                                                                                                               Strategy, (64 FR 38715, July 19, 1999).               above, in determining GACT for a
                                                     2 North   American Industry Classification System.        Specifically, in the Strategy, EPA                    particular area source category, we


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                                                   63506            Federal Register / Vol. 74, No. 231 / Thursday, December 3, 2009 / Rules and Regulations

                                                   consider the costs and economic                         of the listed source category under CAA                 C. Reporting and Recordkeeping
                                                   impacts of available control                            section 112(c)(3).                                      Requirements
                                                   technologies and management practices                      In the proposed rule, we proposed                       We have revised § 63.11603, ‘‘What
                                                   on that category.                                       that the affected source include the                    are my notification, reporting, and
                                                      We are promulgating these national                                                                           recordkeeping requirements?’’ of this
                                                   emission standards in response to a                     entire facility if the facility emitted any
                                                                                                           of the paints and allied products                       final rule to revise the submittal dates
                                                   court-ordered deadline that requires
                                                                                                           manufacturing target HAP. Specifically,                 for the Initial Notification of
                                                   EPA to issue standards for categories
                                                                                                           under the proposal, all process vessels                 Applicability and Notification of
                                                   listed pursuant to section 112(c)(3) and
                                                                                                           at the facility would be subject to the                 Compliance Status reports. We have
                                                   (k) by November 16, 2009 (Sierra Club
                                                                                                           standards if any emissions source at the                extended the initial notification of
                                                   v. Johnson, no. 01–1537, D.D.C., March
                                                                                                           facility emitted one of the paints and                  applicability from 120 days after
                                                   2006).
                                                                                                           allied products manufacturing target                    publication of the final rule in the
                                                   III. Summary of Changes Since                                                                                   Federal Register to 180 days after
                                                                                                           HAP. 3 After consideration of public
                                                   Proposal                                                                                                        publication of the final rule in the
                                                                                                           comments, we modified the scope of
                                                      This final rule contains several                                                                             Federal Register.
                                                                                                           applicability of this final rule, and we
                                                   revisions and clarifications to the                     made several changes to clarify the                     D. Definitions
                                                   proposed rule made after considering                    applicability provisions. The most
                                                   public comments. The following                                                                                     We have made several changes to the
                                                                                                           significant change is that only process                 final rule definitions in § 63.11607,
                                                   sections present a summary of the                       vessels that emit one or more of the
                                                   changes to the proposed rule. We                                                                                ‘‘What definitions apply to this
                                                                                                           target HAP are subject to the rule.                     subpart?’’, and have added definitions
                                                   explain the reasons for these changes in
                                                   detail in the summary of comments and                                                                           for other terms used in this final rule.
                                                                                                           B. Standards and Compliance
                                                   responses (section V of this preamble).                                                                         We added definitions for construction,
                                                                                                           Requirements
                                                                                                                                                                   dry particulate control device,
                                                   A. Applicability                                           We have made several changes to the                  responsible official, and wet particulate
                                                      We made several changes to clarify                   standards for paints and allied products                control device. We have revised the
                                                   the applicability of this final rule.                   manufacturing. For the metal HAP                        definition of paints and allied products,
                                                   Specifically, we have clarified that the                standards, we have revised the                          paints and allied products
                                                   final rule does not include retail and                  requirement to conduct an initial visible               manufacturing, and paints and allied
                                                   commercial paints and allied products                   emission test by changing the test                      products manufacturing process.
                                                   operations which add and mix pigments                   method from Method 9 to Method 203C.                    E. Other
                                                   to pre-manufactured products per                        In addition we have revised the opacity
                                                   customer specifications.                                                                                          We corrected several typographical
                                                                                                           standard from 5 percent opacity to 10                   errors that appeared in various sections
                                                      We have revised the definition of
                                                                                                           percent opacity. We have also removed                   of the proposed rule.
                                                   ‘‘paints and allied products
                                                                                                           the requirement to conduct additional
                                                   manufacturing’’ to exclude activities by                                                                        IV. Summary of Final Standards
                                                                                                           visible emissions tests every six months.
                                                   end users of paints and allied products
                                                   to ready those materials for application.               Instead, we have added quarterly                        A. Do these standards apply to my
                                                   We have also revised the definition of                  Method 22 visible emission                              source?
                                                   ‘‘paints and allied products                            observations.                                              This final rule (subpart CCCCCCC)
                                                   manufacturing process’’ to exclude                         We have also extended the initial                    applies to new or existing paints and
                                                   weighing, mixing, tinting, blending,                    particulate control device testing date                 allied products manufacturing
                                                   diluting, stabilizing, or any other                     from 60 days to 180 days from the                       operations which are area sources of one
                                                   handling of these paints and allied                     compliance date for an existing source,                 of the target hazardous air pollutants
                                                   products to ready these materials for use               and 180 days of start-up of a new                       (HAP) and that process, use, or generate
                                                   by end users.                                           system.                                                 materials containing one or more of the
                                                      Furthermore, we clarified the types of                                                                       following target HAP: Benzene,
                                                   operations by end users that are not                       We have removed the requirement to
                                                                                                                                                                   methylene chloride, and compounds of
                                                   covered by this area source category. An                cover all process tanks with a lid or
                                                                                                                                                                   cadmium, chromium, lead, and nickel.
                                                   end user is someone who applies a                       cover. Instead, only process vessels that               ‘‘Material containing HAP’’ is defined in
                                                   coating to substrate, similar to the                    contain benzene or methylene chloride                   the regulations as any material that
                                                   Miscellaneous Coating Manufacturing                     will be required to be covered. In                      contains benzene, methylene chloride,
                                                   major source rule (40 CFR part 63,                      addition, we have added a provision to                  or compounds of cadmium, chromium,
                                                   subpart HHHHH). The final rule does                     allow operators to open any vessel only                 lead, or nickel, in amounts greater than
                                                   not apply to activities conducted by end                to the extent necessary for quality                     or equal to 0.1 percent by weight, as
                                                   users of coating products in preparation                control testing and product sampling,                   shown by the manufacturer or supplier,
                                                   for application (68 FR 69164, December                  addition of materials, or product                       such as in the Material Safety Data
                                                   11, 2003). Thus, operations that modify                 removal.                                                Sheet (MSDS) for the material.
                                                   a purchased coating prior to application                                                                           In the proposed rule, we proposed
                                                   at the purchasing facility are not                         3 In this preamble, we use the term ‘‘target HAP’’   that the affected source include the
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                                                   included in the Paints and Allied                       to mean the urban HAP for which the paints and          entire facility if the facility processes,
                                                                                                           allied products manufacturing source category is
                                                   Products Manufacturing area source                      listed under section 112(c)(3). Those HAP are
                                                                                                                                                                   uses, or generates any of the target HAP.
                                                   category; this would apply only if the                  benzene, methylene chloride, and compounds of           Specifically, under the proposed rule, if
                                                   purchased product is already a coating                  cadmium, chromium, lead, or nickel. Further, the        the facility processes, uses, or generates
                                                   that an end user could apply as                         regulations define ‘‘materials containing HAP’’ to      any of the target HAP, then they would
                                                                                                           mean a material containing any of the target HAP
                                                   purchased. The activities and operations                in amounts greater than or equal to 0.1 percent by
                                                                                                                                                                   be required to control all HAP that is
                                                   described above are not subject to                      weight, as shown in formulation data provided by        processed, used, or generated at the
                                                   today’s rule because they were not part                 the manufacturer or supplier. See 63.11607.             facility. In response to comments, we


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                                                                    Federal Register / Vol. 74, No. 231 / Thursday, December 3, 2009 / Rules and Regulations                                              63507

                                                   have revised the final rule to define the               part of the listed paints and allied                  normally a surfactant, wets the pigment
                                                   affected source as only those processes                 products source category. Additionally,               particles by displacing air, moisture,
                                                   that process, use, or generate the target               the standards do not apply to research                and gases that are adsorbed on the
                                                   HAP. In the proposed rule, we proposed                  and development facilities, as defined                surface of the pigment particles.
                                                   that the affected source include the                    in section 112(c)(7) of the CAA. Quality              Grinding is the mechanical breakup and
                                                   entire facility if the facility emitted any             assurance and quality control                         separation of pigment clusters into
                                                   of the target HAP. Specifically, under                  laboratories and research and                         isolated particles and may be facilitated
                                                   the proposal, all paints and allied                     development facilities were                           by the use of grinding media such as
                                                   products manufacturing processes at the                 inadvertently omitted from the                        pebbles, balls, or beads. Finally,
                                                   facility would be subject to the                        proposal, but the final rule corrects this            dispersion is the movement of wetted
                                                   standards if any emissions source at the                omission.                                             particles into the body of the liquid
                                                   facility emitted one of the target HAP.                   If you have any questions regarding                 vehicle to produce a particle
                                                   In response to comments, we narrowed                    the applicability of this action to a                 suspension.
                                                   the scope of applicability of this final                particular entity, consult either the air                For product finishing and blending,
                                                   rule, and we made several changes to                    permit authority for the entity or your               the final rule addresses the HAP
                                                   clarify the applicability provisions. The               EPA regional representative as listed in              emissions that occur during heat-up
                                                   most significant change is that only                    40 CFR 63.13 of subpart A (General                    losses during operation of the mixers;
                                                   those process units that emit one or                    Provisions).                                          surface evaporation during mixing and
                                                   more of the target HAP are subject to the                                                                     blending; and the addition of pigments
                                                                                                           B. When must I comply with these
                                                   rule. The final rule further specifies that                                                                   and other solid materials to the process
                                                                                                           standards?
                                                   each process vessel that emits one of the                                                                     or mixing vessels.
                                                   target HAP is subject only to                              All existing area source facilities                   For product filling and packaging, the
                                                   requirements that apply to the same                     subject to this rule are required to                  final rule addresses HAP emissions from
                                                   type of target HAP that triggered                       comply with the rule requirements no                  the addition of small amounts of
                                                   applicability, not requirements for all                 later than December 3, 2012. New                      pigments, solids, or liquids to achieve
                                                   types of HAP. For example, a process                    sources are required to comply with the               the required color or consistency of the
                                                   vessel that uses only one or more target                rule requirements upon December 3,                    final product.
                                                   metal HAP (i.e., compounds of                           2009 or upon startup of the facility,
                                                                                                           whichever is later.                                   D. What are the emissions control
                                                   cadmium, chromium, lead, or nickel) is                                                                        requirements?
                                                   required to control all CAA section                     C. What processes does this final rule                   The following is a description of the
                                                   112(b) metal HAP. Similarly, a process                  address?                                              control requirements for the paints and
                                                   vessel that uses only target volatile HAP                  There are four general process                     allied products manufacturing process
                                                   (i.e., benzene or methylene chloride) is                operations common to the paints and                   described in section IV.C above. The
                                                   required to control all CAA section                     allied products manufacturing source                  control requirements only apply when
                                                   112(b) volatile HAP.                                    categories that emit one or more of the               an operation is being performed at a
                                                      Paints and allied products                           target HAP. These four process                        process vessel that uses materials
                                                   manufacturing operations include the                    operations are: (1) Preassembly and                   containing HAP. As stated earlier, the
                                                   production of paints, inks, adhesives,                  premix, (2) pigment grinding, milling,                regulations define ‘‘materials containing
                                                   stains, varnishes, shellacs, putties,                   and dispersing, (3) product finishing                 HAP’’ as a material containing benzene,
                                                   sealers, caulks, and other coatings from                and blending, and (4) product filling                 methylene chloride, or compounds of
                                                   raw materials, the intended use of                      and packaging.                                        cadmium, chromium, lead, and/or
                                                   which is to leave a dried film of solid                    For premix and assembly, the final                 nickel, in amounts greater than or equal
                                                   material on a substrate. Typically, the                 rule addresses the target HAP emissions               to 0.1 percent by weight, as shown in
                                                   manufacturing industries that produce                   that are generated during the addition of             formulation data provided by the
                                                   these materials are described by SIC                    pigments and other solid materials to                 manufacturer or supplier for the
                                                   codes 285 or 289 and NAICS codes 3255                   the process or mixing vessels. The                    material, such as the Material Safety
                                                   and 3259 and are produced by physical                   preassembly and premix step involves                  Data Sheet.4 For example, an area
                                                   means, such as blending and mixing, as                  the collection of raw materials that will             source may have two process vessels,
                                                   opposed to chemical synthesis means,                    be used to produce the desired coating                one containing tetrachloroethylene
                                                   such as reactions and distillation. Paints              product. These materials are added to a               (which is not one of the target HAP) and
                                                   and allied products manufacturing does                  high speed dispersion or mixing vessel.               the other containing methylene
                                                   not include: (1) The manufacture of                     The types of raw materials that are used              chloride, and, under this rule, only the
                                                   products that do not leave a dried film                 for solvent-based coatings include                    process vessel containing methylene
                                                   of solid material on the substrate, such                resins, organic solvents, plasticizers, dry
                                                   as thinners, paint removers, brush                      pigment, and pigment extenders; water,                  4 The CAA section 112(k) inventory was primarily

                                                   cleaners, and mold release agents; (2)                  ammonia, dispersant, pigment, and                     based on the 1990 Toxics Release Inventory (TRI),
                                                   the manufacture of electroplated and                    pigment extenders are used for water-                 and that is the case for the paints and allied
                                                                                                                                                                 products manufacturing area source category as
                                                   electroless metal films; (3) the                        based coatings.                                       well. The reporting requirements for the TRI do not
                                                   manufacture of raw materials, such as                      The final rule addresses HAP                       include de minimis concentrations of toxic
                                                   resins, pigments, and solvents used in                  emissions from pigment grinding,                      chemicals in mixtures, as reflected in the above
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                                                   the production of paints and coatings;                  milling, and dispersing. Pigment                      concentration levels; therefore, the CAA section
                                                                                                                                                                 112(k) inventory would not have included
                                                   and (4) activities by end users of paints               grinding or milling entails the                       emissions from operations involving chemicals
                                                   or allied products to ready those                       incorporation of the pigment into the                 below these concentration levels. See 40 CFR
                                                   materials for application. Quality                      paint or ink vehicle to yield fine particle           372.38, Toxic Chemical Release Reporting:
                                                   assurance and quality control                           dispersion. The three stages of this                  Community Right-To-Know (Reporting
                                                                                                                                                                 Requirements). Accordingly, the scope of the listed
                                                   laboratories are not considered part of a               process include wetting, grinding, and                source category is limited to facilities using
                                                   paints and allied products                              dispersion, which may overlap in any                  materials containing one or more of the target HAP
                                                   manufacturing process, as they were not                 grinding operation. The wetting agent,                in quantities greater than 0.1 percent.



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                                                   63508            Federal Register / Vol. 74, No. 231 / Thursday, December 3, 2009 / Rules and Regulations

                                                   chloride (one of the target volatile HAP)               E. What are the initial compliance                       The affected source is required to
                                                   would be part of the affected source and                requirements?                                         prepare an annual compliance
                                                   as such, subject to the process vessel                                                                        certification report. The annual
                                                   standards.                                                To demonstrate initial compliance                   compliance certification report contains
                                                                                                           with this final rule, owners or operators             the company name and address, a
                                                   1. Standards for Metal HAP Emissions                    of affected new or existing sources must              statement signed by a responsible
                                                                                                           certify that they have implemented all                official that certifies the truth, accuracy,
                                                      This final rule requires owners or                   required control technologies and
                                                   operators of all existing and new                                                                             and completeness of the certification
                                                                                                           management practices and that all                     report, and a statement of whether the
                                                   affected facilities to operate a particulate            equipment associated with the
                                                   control device during the addition of                                                                         source has complied with all of the
                                                                                                           processes will be properly operated and               relevant standards and other
                                                   pigments and other solids that contain                  maintained. In addition, a visual                     requirements of this rule. If there are
                                                   compounds of cadmium, chromium,                         emission test using EPA Method 203C is                any deviations from the requirements of
                                                   nickel, or lead, and during the grinding                required to be performed on the                       this subpart, the facility must submit
                                                   and milling of pigments and solids that                 particulate control device on or before               this annual compliance certification
                                                   contain compounds of cadmium,                           the compliance date.                                  report with any deviation reports
                                                   chromium, nickel, or lead.
                                                                                                           F. What are the continuous compliance                 prepared during the year. The deviation
                                                      Particulate control devices that vent                requirements?                                         reports must describe the circumstance
                                                   to the atmosphere must be maintained                                                                          of the deviation and the corrective
                                                   such that visible emissions from the                       This rule requires owners and                      action taken.
                                                   particulate control device shall not                    operators of affected facilities to inspect              Facilities are also required to
                                                   exceed 10 percent opacity when                          the particulate control device annually               maintain all records that demonstrate
                                                   averaged over a six-minute period.                      to check the structural integrity of the              initial and continuous compliance with
                                                   Affected sources using particulate                      particulate control device, and to                    this final rule, including records of all
                                                   control devices that do not vent to the                 perform a visual emission test using                  required notifications and reports, with
                                                   atmosphere are not subject to the                       EPA Method 22 on the particulate                      supporting documentation; and records
                                                   requirements of this rule, as there are no              control device every 3 months. If visible             showing compliance with management
                                                   emissions to the atmosphere.                            emissions are observed for two minutes                practices. Owners and operators must
                                                                                                           of the required 5 minute Method 22                    also maintain records of the following,
                                                   2. Standards for Volatile HAP Emissions                 observation period, a Method 203C (40                 if applicable: Date and results of the
                                                      This final rule requires new and                     CFR part 51, appendix M) test must be                 particulate control device inspections;
                                                   existing affected sources to equip                      conducted within 15 days of the time                  date and results of all visual
                                                   process and storage vessels that store or               when visible emissions were observed.                 determinations of visible emissions,
                                                                                                           If the Method 203C test indicates an                  including any follow-up tests and
                                                   process materials containing benzene or
                                                                                                           opacity greater than 10 percent, you                  corrective actions taken; and date and
                                                   methylene chloride with covers or lids.
                                                                                                           must take corrective action and retest                results of all visual determinations of
                                                   The covers or lids can be of solid or
                                                                                                           using Method 203C within 15 days. The                 emissions opacity, and corrective
                                                   flexible construction, provided they do
                                                                                                           owner/operator will continue to take                  actions taken.
                                                   not warp or move around during the
                                                                                                           corrective action and retest each 15 days
                                                   manufacturing process. The covers or                                                                          V. Summary of Comments and
                                                                                                           until a Method 203C test indicates an
                                                   lids must maintain contact along at least                                                                     Responses
                                                                                                           opacity equal to or less than 10 percent.
                                                   90 percent of the vessel rim and must                   Failure to meet the 10 percent opacity                  We received a total of 27 comments
                                                   be maintained in good condition.                        standard is a deviation and must be                   on the proposed NESHAP from industry
                                                   Mixing vessels that process or store                    reported in your annual compliance                    representatives, trade associations,
                                                   materials containing one or more of the                 report along with the corrective actions              Federal and State agencies, and the
                                                   target volatile HAP must be equipped                    taken.                                                general public during the public
                                                   with covers that completely cover the                                                                         comment period. Sections V.A through
                                                   vessel, except for safe clearance of the                G. What are the notification,                         V.F of this preamble provide responses
                                                   mixer shaft. All vessels that store or                  recordkeeping, and reporting                          to the significant public comments
                                                   process materials containing benzene or                 requirements?                                         received on the proposed NESHAP.
                                                   methylene chloride must be kept
                                                                                                              New and existing affected sources are              A. Applicability
                                                   covered at all times, except for quality
                                                                                                           required to comply with certain
                                                   control testing and product sampling,                                                                         1. General Applicability
                                                                                                           requirements of the General Provisions
                                                   addition of materials, material removal,                (40 CFR part 63, subpart A). Each new                    Comment: Several commenters
                                                   or when the vessel is empty.                            source is required to submit an Initial               believe that the proposed rule subjects
                                                      The final rule requires that leaks and               Notification no later than 180 days after             all retail and commercial paints and
                                                   spills of materials containing benzene or               initial startup of the operations or June             allied products operations that add and
                                                   methylene chloride must be minimized                    1, 2010, whichever is later. Existing                 mix pigments to pre-manufactured
                                                   and cleaned up as soon as practicable,                  affected sources must submit the Initial              products per customer specifications to
                                                   but no longer than 1 hour from the time                 Notification no later than June 1, 2010.              the requirements in this rule. The
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                                                   of detection. Rags or other materials that              Notification of Compliance Status                     commenters believe that this was not
                                                   use a solvent containing benzene or                     reports are required to be submitted                  the intent of the rule, as demonstrated
                                                   methylene chloride for cleaning must be                 according to the requirements in 40 CFR               by the discussion of the affected number
                                                   kept in a closed container. The closed                  63.9 in the General Provisions no later               of sources, and economic impacts of the
                                                   container may contain a device that                     than June 3, 2013 for existing sources,               rule. The commenters suggest that EPA
                                                   allows pressure relief but does not allow               or no later than 180 days after initial               revise its definitions of ‘‘paints and
                                                   liquid solvent to drain from the                        startup, or by June 1, 2010, whichever                allied products,’’ ‘‘paints and allied
                                                   container.                                              is later for new sources.                             products manufacturing,’’ and ‘‘paints


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                                                                    Federal Register / Vol. 74, No. 231 / Thursday, December 3, 2009 / Rules and Regulations                                      63509

                                                   and allied products manufacturing                       codes 285 or 289 and North American                   HAP (or any HAP) was being processed,
                                                   process’’ to exclude operations that only               Industry Classification System (NAICS)                used, generated, or emitted.
                                                   add and mix small amounts of pigment                    codes 3255 and 3259 and are produced                  Commenters request that EPA limit
                                                   per container of pre-manufactured paint                 by physical means, such as blending                   applicability of the rule to those times
                                                   or allied products for commercial or                    and mixing, as opposed to chemical                    when a process vessel is actually
                                                   retail purchase per customer                            synthesis means, such as reactions and                processing, using, generating, or
                                                   specification.                                          distillation. Paints and allied products              emitting one or more of the target HAP.
                                                      One commenter suggests that EPA                      manufacturing does not include:                          One commenter supports EPA’s
                                                   refer to the language used in the major                    (1) The manufacture of products that               decision to apply the standard to all
                                                   source miscellaneous coatings                           do not leave a dried film of solid                    HAP. The commenter notes that EPA
                                                   manufacturing rule (40 CFR part 63,                     material on the substrate, such as                    has the discretion under § 112(d) of the
                                                   subpart HHHHH), which clarified its                     thinners, paint removers, brush                       Clean Air Act to issue standards for
                                                   intent to regulate the coatings                         cleaners, and mold release agents;                    areas sources ‘‘to reduce emissions of
                                                   manufacturers, not activities by end                       (2) The manufacture of electroplated               hazardous air pollutants,’’ and EPA’s
                                                   users to prepare or modify coatings in                  and electroless metal films;                          discretion is not limited to only
                                                   preparation for application.                               (3) The manufacture of raw materials,              regulating only the target HAP in the
                                                      Another commenter requests that the                  such as resins, pigments, and solvents                area source program.
                                                   definitions clarify that the rule does not              used in the production of paints and                     Several commenters request that EPA
                                                   apply to raw material production, as                    coatings; and                                         limit the rulemaking’s applicability to
                                                   some larger area source facilities will be                 (4) Activities by end users of paints or           those operations at a facility that are
                                                   co-located with such operations.                        allied products to ready those materials              actually utilizing one of the target HAP.
                                                      Response: In response to comments,                   for application.                                      The commenters believe that EPA
                                                   we re-examined the record supporting                       Paints and Allied Products                         should revise the applicability language
                                                   the initial listing of the Paints and                   Manufacturing Process means all the                   to make it clear that the rule only
                                                   Allied Products Manufacturing source                    equipment which collectively functions                applies to processes with target HAP
                                                   category. Based on our review of the                    to produce paints and allied products                 emissions at an affected source, as
                                                   record supporting that listing, we agree                from raw materials A process may                      opposed to any operation at an affected
                                                   with the commenters that the source                     consist of one or more unit operations.               source, regardless of whether or not the
                                                   category that was listed did not include                For the purposes of this subpart, the                 process involves one or more of the
                                                   retail and commercial paints and allied                 manufacturing process includes any, all,              target HAP. One of the commenters
                                                   products operations which add and mix                   or a combination of, weighing, blending,              notes that this approach is used in the
                                                   pigments to pre-manufactured products                   mixing, grinding, tinting, dilution, or               Area Source Standards for Paint
                                                   per customer specifications. EPA’s                      other formulation. Cleaning operations,               Stripping and Miscellaneous Surface
                                                   intent in the proposed rule was not to                  material storage and transfer, and piping             Coating Operations and the Area Source
                                                   include the activities of end users,                    are considered part of the                            Standards for Nine Metal Fabrication
                                                   which include retail and commercial                     manufacturing process. It does not cover              and Finishing Source Categories.
                                                   paints and allied products operations                   activities by end users of paints or allied           Several of the commenters state that the
                                                   which add and mix pigments to pre-                      products to ready those materials for                 intent of the area source regulations was
                                                   manufactured products per customer                      application. Quality assurance and                    to regulate the 30 Urban Air toxics, and
                                                   specifications, and we recognize that the               quality control laboratories are not                  EPA is significantly increasing the
                                                   definitions used in the proposal were                   considered part of a paints and allied                burden on industry, especially small
                                                   confusing in this regard. In light of the               products manufacturing process.                       businesses, by expanding the rule
                                                   scope of the listed source category and                    In terms of the breadth of the rule’s              beyond the target HAP, without
                                                   the confusion that resulted from some of                applicability, some manufacturing                     commensurate environmental benefit.
                                                   the definitions in the proposed rule, we                facilities may have co-located or                     One of the commenters requests that
                                                   have revised the definitions of ‘‘paints                affiliated operations which meet the                  only the presence of one or more of the
                                                   and allied products,’’ ‘‘paints and allied              definition of paints and allied products              target metal HAP should trigger the
                                                   products manufacturing,’’ and ‘‘paints                  manufacturing, and to which this rule                 requirements for other metal HAP, and
                                                   and allied products manufacturing                       does apply.                                           that only the presence of benzene or
                                                   process’’ to exclude operations that add                                                                      methylene chloride should trigger the
                                                   and mix pigments to pre-manufactured                    2. Applicability Based on HAP Used/
                                                                                                                                                                 requirements for other volatile HAP
                                                   products and to clarify that only                       Emitted
                                                                                                                                                                 emissions.
                                                   facilities that manufacture paints and                     Comment: Commenters note that the                     Response: Like the proposed rule, the
                                                   allied products from raw materials, as                  proposed rule would apply to paint and                final rule applies to any facility that
                                                   described under NAICS 325510, 325520,                   allied products manufacturing area                    performs paints and allied products
                                                   325910 and selected sectors under                       sources that process, use, or generate                manufacturing that is an area source of
                                                   325998, are covered by this rule. The                   one or more of the six target HAP:                    HAP emissions and processes, uses, or
                                                   revised definitions follow:                             benzene, methylene chloride, cadmium                  generates materials containing one or
                                                      Paints and Allied Products                           compounds, chromium compounds,                        more of the target HAP: Benzene,
                                                   Manufacturing means the production of                   lead compounds, and nickel                            methylene chloride, and compounds of
                                                   paints, inks, adhesives, stains,                        compounds. Commenters also note that                  cadmium, chromium, lead, and nickel.
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                                                   varnishes, shellacs, putties, sealers,                  these HAP are referred to as the ‘‘target                To develop the emissions standards in
                                                   caulks, and other coatings from raw                     HAP’’ for this regulation. Commenters                 today’s rule, we identified the emission
                                                   materials, the intended use of which is                 further state that, under the proposed                points that emit the target HAP and
                                                   to leave a dried film of solid material on              rule, once a facility is determined to be             determined GACT for those emission
                                                   a substrate. Typically, the                             subject to the rule, the emission                     sources. The proposed regulatory text
                                                   manufacturing processes that produce                    limitations and management practices                  required that these GACT requirements
                                                   these materials are described by                        then would apply to all processes at all              apply at all times, whether any of the
                                                   Standard Industry Classification (SIC)                  times, regardless of whether any target               target HAP was or was not being used.


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                                                   63510            Federal Register / Vol. 74, No. 231 / Thursday, December 3, 2009 / Rules and Regulations

                                                   However, the preamble to the proposed                      Another commenter noted that EPA                   material suppliers to move away from
                                                   rule (74 FR 26147) stated that the                      has already determined in other Part 63               these HAP. Additionally, several
                                                   requirements of the rule would apply                    NESHAP regulations (such as the HON                   commenters stated that facilities that do
                                                   when any operation is being performed                   in subpart G container definition at                  reformulate or cease producing a certain
                                                   that processes, uses, or generates any                  § 63.111) and the RCRA Hazardous                      product that subjected them to the
                                                   HAP. EPA intended to propose                            Waste Subpart CC regulations at 40 CFR                rulemaking in the first place will be
                                                   regulatory text that required that the                  264/265.1080(b)(2) that containers of a               mandated to continue to operate costly
                                                   rule’s requirements apply when any                      capacity less than or equal to 0.1 cubic              and energy-consuming control
                                                   operation is being performed that                       meters (m3) produce insignificant                     equipment (e.g., particulate controls) for
                                                   processes, uses, or generates any of the                emissions and thus are exempted from                  no environmental benefit. The facility’s
                                                   target HAP. The regulatory text in the                  the regulations. Additionally, the                    continued recordkeeping and reporting
                                                   final rule has been revised accordingly                 commenter stated that the HAP                         would be additional cost and burden.
                                                   to state that the control requirements                  mandated to be regulated should be                       One commenter believes that EPA’s
                                                   only apply when the facility is                         specifically listed in order to avoid any             1995 ‘‘once in/always in’’ policy applies
                                                   processing, using, or generating any of                 confusion.                                            to major sources subject to MACT
                                                   the target HAP.                                            Response: From the permit                          standards and would not apply to this
                                                      The commenters requested that the                    information we obtained for the                       area source regulation. The commenter
                                                   GACT requirements only apply when                       rulemaking, we found that 8 out of 30                 requested that EPA officially confirm
                                                   the target HAP are being processed,                     facilities are required to cover storage              that this policy does not apply to this
                                                   used, or generated. They did not claim                  tanks or process vessels that contain                 final rulemaking and/or facilities that no
                                                   that EPA lacks the authority under                      VOC or organic solvents to prevent                    longer use the target HAP after the date
                                                   § 112(d) of the Clean Air Act to regulate               vaporization of VOCs. In a separate                   of implementation have the ability to
                                                   HAP other than the target HAP, but                      study, the Washington State Department                opt-out of the rule.
                                                   rather based their arguments on claims                  of Ecology found that the 18 facilities                  Response: The comment concerning
                                                   of potential burdens of expanding the                   that they visited or surveyed used lids               the ‘‘once in/always in’’ policy is not
                                                   rule beyond the target HAP. However,                    or covers on all vessels.5 The survey                 relevant to this rule. The regulated
                                                   these commenters did not provide                        also stated that the use of covers or lids            entities subject to this rule include the
                                                   specific information regarding the                      is considered to be a standard practice               owner/operator of a facility that
                                                   potential additional burden to support                  by the paint manufacturing industry.                  performs paints and allied products
                                                   these assertions. We believe there may                  Industry representatives also provided                manufacturing is an area source of HAP
                                                   be a minimal increase in the burden                     estimates that around 90–95 percent of                emissions and processes, uses, or
                                                   associated with controlling emissions in                facilities use covers on their process and            generates materials containing the
                                                   the instances when a non-target HAP is                  storage tanks to prevent product loss;                following target HAP: Benzene,
                                                   being used (without a target HAP also                   these data do not provide any                         methylene chloride, and compounds of
                                                   being present). Facilities that process,                information on tank size.                             cadmium, chromium, lead, or nickel. If
                                                   use, or generate one or more of the target                 None of the information that we                    a facility that was covered under the
                                                   HAP must have the required controls in                  found limited the use of lids or covers               rule discontinues processing, using, or
                                                   place, and these same controls will                     to the size of the tank. Therefore, we                generating the target HAP through
                                                   control other metal and/or volatile HAP.                believe it is appropriate to require the              pollution prevention practices or
                                                      We did make changes in the final rule                use of lids or covers on all process and              otherwise, then that facility is no longer
                                                   to clarify our original intent that the                 storage tanks that contain one or more                covered by the rule. However, should
                                                   requirements apply only when a target                   of the target HAP, regardless of the size             the same facility reinstate processing,
                                                   HAP is processed, used, or generated.                   of the tank. The commenters did not                   using or generating the target HAP, it
                                                   We also further refined this to specify                 provide any information to explain why                would once again be subject to the
                                                   that the requirement to keep process                    covering a process tank of less than 250              requirements of this rule, including
                                                   and storage vessels covered only applies                gallons is burdensome. The commenters                 notification, recordkeeping, and
                                                   when the vessel contains target volatile                also provided no information to support               reporting. Additionally, terminating use
                                                   HAP.                                                    adopting different requirements for                   of the target HAP would require
                                                      Comment: Several commenters                          smaller process tanks, nor do they                    submittal of a report pursuant to
                                                   suggested that EPA include an                           provide any information explaining that               § 63.9(j) and also require maintenance of
                                                   applicability exemption for process                     process tank covers for the smaller tanks             the record as required by § 63.1(b)(3).
                                                   tanks under a prescribed size. The                      are not generally available control
                                                   commenters recommend an exemption                                                                             B. Compliance/Implementation Dates
                                                                                                           technology. The volatile HAP to be
                                                   for process tanks smaller than 250                      controlled are listed at § 63.11599(3).                 Comment: Two commenters state that
                                                   gallons, both for consistency with the                                                                        § 63.11603(a)(1) requires existing
                                                   Miscellaneous Coatings Manufacturing                    3. Pollution Prevention Alternative                   sources to notify EPA within 60 days of
                                                   Maximum Achievable Control                              Exemption                                             publication of the final rule, and for
                                                   Technology (MACT) rulemaking and to                        Comment: The commenters stated                     new sources within 60 days of startup.
                                                   limit burden. One commenter stated                      that a facility should be able to ‘‘opt               The commenters state that the
                                                   that it is more difficult to install                    out’’ of this rule in the future if the               notification of Compliance Status found
                                                   particulate controls on high dispersion                 facility eliminates the processing, use,              in § 63.11603(a)(2) requires that all
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                                                   process tanks that are less than 250                    production or generation of the target                sources report on their compliance
                                                   gallons and install covers on process                   HAP; otherwise, there is no incentive                 status within 120 days of their
                                                   tanks less than 250 gallons. In addition,               for coatings manufacturers or their raw               respective compliance date. The
                                                   if the 250 gallon threshold is not                                                                            commenters recommended that the
                                                                                                             5 Paint and Coatings Manufacturing Sector,
                                                   included, every ‘‘process tank’’ would                                                                        deadlines be changed to 180 days in all
                                                                                                           Pollution Prevention Assessment and Guidance,
                                                   need to be covered, including very small                Washington State Department of Ecology,
                                                                                                                                                                 cases, to provide time for small sources
                                                   containers like 5 gallon containers and                 Hazardous Waste and Toxics Reduction Program,         to comply and to be consistent with
                                                   55 gallons drums.                                       Publication #98–410, Revised November 2002.           other similar Federal rules.


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                                                                    Federal Register / Vol. 74, No. 231 / Thursday, December 3, 2009 / Rules and Regulations                                         63511

                                                      Response: We agree with the                          believes the same is true for the paints              categories were not part of the list of
                                                   commenters that because most of the                     and allied products manufacturing rule.               source categories established to meet
                                                   affected facilities are small businesses,               Other commenters stated that state rules              EPA’s obligation under section
                                                   and some might be complying with EPA                    for paints and allied products                        112(c)(3). Further, commenters’ claims
                                                   regulations for the first time, they                    manufacturing contain de minimis                      that EPA established de minimis
                                                   should be provided additional time to                   thresholds that exclude lower volume                  exemptions in several area source rules
                                                   comply with the requirements. Per the                   production facilities, waterborne                     are incorrect. In these rules, after
                                                   General Provisions, we have pushed                      production facilities, and small process              examining the record on which the
                                                   back the initial notification date to 120               tanks. The commenters state that since                initial listing was based, EPA clarified
                                                   days from the date of publication of the                EPA can look to state regulations as part             the scope of the listed source category.
                                                   final rule. The compliance date is 180                  of the GACT analysis, EPA has the                     Contrary to commenters’ assertion, EPA
                                                   days from the date of publication of the                authority to adopt a 100 lb/year                      did not create any exemptions in those
                                                   final rule.                                             emission de minimis threshold. Several                rules. For example, in the case of Clay
                                                                                                           commenters believe that without a de                  Ceramics, EPA stated:
                                                   C. De Minimis Thresholds and
                                                                                                           minimis emission threshold, a facility                   ‘‘With this action, we are also clarifying
                                                   Subcategorization
                                                                                                           that relies on a supplier MSDS may find               that artisan potters, small ceramics studios,
                                                   1. De Minimis Thresholds                                itself out of compliance if, for example,             noncommercial entities, and schools and
                                                      Comment: Several commenters                          a supplier reports a new trace metal                  universities with ceramic arts programs,
                                                                                                           constituent on the MSDS. The                          which typically have annual production rates
                                                   suggest that EPA exempt small paints
                                                                                                           commenters note that the metals of                    of 45 Mg/yr (50 tpy) or less, are not a part
                                                   and allied products manufacturing                                                                             of the source category listed pursuant to
                                                   facilities from the final regulation. The               concern are often contaminants in
                                                                                                                                                                 section 112(c)(3) and (k)(3)(B), and are,
                                                   commenters propose using a de minimis                   purchased raw materials. The
                                                                                                                                                                 therefore, not covered by this area source
                                                   level of 100 lbs/year of one or more of                 commenters note that if the supplier’s                standard. Urban HAP emissions from these
                                                   the target HAP. The commenters claim                    raw material source changes and the                   facilities were not included in the 1990
                                                   that sources with lower emissions levels                supplier’s analysis begins to show                    baseline emissions inventory that was used
                                                   were not included in the 1990 baseline                  higher traces of a metal, a manufacturer              as the basis for the area source category
                                                   emissions inventory. Another                            would be out of compliance upon                       listing.’’
                                                   commenter suggests a mass-based de                      receiving this new MSDS, even though                  EPA set standards in each of the area
                                                   minimis level of 2.0 Megagrams (2.2                     no reportable emissions of the metal                  source rules cited above for all sources
                                                   tons per year) for target HAP that are                  have occurred.                                        that were part of the listed source
                                                   processed, used, produced, or                              Response: EPA does not believe it is               category to meet the statutory obligation
                                                   generated. Alternatively, commenters                    appropriate to establish a de minimis                 in section 112(d)(3) to regulate sources
                                                   suggested subcategorization of the                      threshold exempting sources emitting                  representing 90 percent of area source
                                                   source category into ‘‘small emission’’                 less than 100 lb/year of the target HAP,              emissions of the urban HAP. EPA also
                                                   and ‘‘large emission’’ facilities based on              or sources processing, using, or                      notes that the commenter’s reference to
                                                   a 100 lb/year HAP actual emission                       producing less than 2.0 Megagrams (2.2                state law requirements is irrelevant.
                                                   threshold, and then exempting the small                 tons per year) of the target HAP from the             EPA is required to establish area source
                                                   emission subcategory from all                           final regulations. Section 112(c)(3)                  standards pursuant to the requirements
                                                   requirements.                                           requires that EPA list categories or                  of section 112(d), and cannot create
                                                      The commenters claim that EPA has                    subcategories of area sources sufficient              exemptions to those standards based on
                                                   provided de minimis exemptions in                       to ensure that area sources representing              state law requirements.
                                                   previous area source rules, including                   90 percent of the area source emissions                  Finally, commenters are concerned
                                                   Clay Ceramics, Glass Manufacturing,                     of the 30 HAP that present the greatest               that without a de minimis emission
                                                   and the Benzene NESHAP for Waste                        threat to public health in the largest                threshold, a facility that relies on a
                                                   Operations. One commenter states that                   number of urban areas are regulated.                  MSDS may find itself out of compliance
                                                   precedence for a de minimis threshold                   EPA listed the Paints and Allied                      if a raw material source changes and the
                                                   (beyond the Occupational Safety and                     Products Manufacturing area source                    supplier’s analysis begins to show
                                                   Health Administration (OSHA) de                         category in 2002 as one of the categories             higher traces of a metal, and those
                                                   minimis threshold) is established in                    needed to ensure that 90 percent of such              higher levels are not reflected on the
                                                   earlier NESHAP rulemakings, where                       area source emissions are regulated. The              MSDS. The CAA section 112(k)
                                                   EPA determined that the use of coatings                 listed source category included sources               inventory was primarily based on the
                                                   containing urban air toxics below                       emitting less than 100 lbs/year of the                1990 Toxics Release Inventory (TRI),
                                                   certain thresholds do not negatively                    target HAP for the Paints and Allied                  and that is the case for the paints and
                                                   impact human health and the                             Products Manufacturing source                         allied products manufacturing area
                                                   environment. Specifically, the                          category. Therefore, were EPA to                      source category as well. The reporting
                                                   commenter notes that in the Clay                        exempt those sources from regulation,                 requirements for the TRI do not require
                                                   Manufacturing Area Source Rule, EPA                     the statutory requirement to regulate                 reporting of de minimis concentrations
                                                   included an applicability de minimis                    area sources representing 90 percent of               of toxic chemicals in mixtures, as
                                                   based on the argument that emissions                    area source emissions of the urban HAP                reflected in the above concentration
                                                   from facilities with annual production                  would not be met. For this reason, EPA                levels; therefore, the CAA section 112(k)
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                                                   of less than 50 tons/year were not                      does not believe a de minimis                         inventory would not have included
                                                   included in the 1990 baseline emissions                 exemption would be appropriate. The                   emissions from operations involving
                                                   inventory that was used in the basis for                rules commenters cite where de                        chemicals below these concentration
                                                   the area source category listing. The                   minimis thresholds were established                   levels. See 40 CFR 372.38, Toxic
                                                   commenter states that only those above                  were issued under section 112(d)(2) for               Chemical Release Reporting:
                                                   the 50 ton/year threshold were in the                   major sources (i.e., MACT standards),                 Community Right-To-Know (Reporting
                                                   basis for listing, so only those facilities             not for area sources under section                    Requirements). Accordingly, the scope
                                                   are covered by the rule. The commenter                  112(d)(5). Therefore, those major source              of the listed source category is limited


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                                                   63512            Federal Register / Vol. 74, No. 231 / Thursday, December 3, 2009 / Rules and Regulations

                                                   to facilities using materials containing                is a similar observed difference in                   use baghouses while smaller ones do
                                                   one or more of the target HAP in                        operations depending on the emission                  not, the commenter provided no data or
                                                   quantities greater than 0.1 percent.                    rate for the paints and allied products               information to support this assertion,
                                                     In addition, EPA believes the                         manufacturing industry as well. The                   and EPA has no data or information to
                                                   regulations as proposed adequately                      commenter states that facilities with                 substantiate this claim.
                                                   address the commenters’ concern                         actual emissions of paints and allied
                                                   regarding reliance on the MSDS. For                                                                           D. Emission Standards and
                                                                                                           products manufacturing metal HAP
                                                   facilities that rely on a supplier MSDS,                                                                      Management Practices
                                                                                                           (cadmium, chromium, nickel and lead)
                                                   the manufacturer would only be out of                   above 100 lb/yr produce products that                 1. Generally Available Control
                                                   compliance if the materials containing                  contain the HAP as an intended part of                Technology
                                                   one or more of the target HAP greater                   the product. The commenter also asserts                  Comment: One commenter stated that,
                                                   than 0.1 percent are used in the process,               that EPA has the discretion to create                 as described in § 112(k)(1), the purpose
                                                   without the required controls in place.                 subcategories of area sources, and that               of the area source program is to
                                                   Therefore, a manufacturer would be                      EPA should do so in the paints and                    ‘‘achieve a substantial reduction in
                                                   required to submit the appropriate                      allied products manufacturing rule                    emissions of hazardous air pollutants
                                                   forms if the manufacturer intends to use                based on cost considerations, as well as              from area sources and an equivalent
                                                   the material containing HAP greater                     differing industry practices and                      reduction in the public health risks
                                                   than 0.1 percent by weight in the                       processes.                                            associated with such sources * * *.’’ 42
                                                   manufacturing process. Commenters                          The commenter claims that two of the               U.S.C. 7412(k)(1). For area sources, EPA
                                                   provide no evidence to indicate that                    management practices EPA proposed to                  may set either MACT standards, or
                                                   MSDS from suppliers will be inaccurate                  identify as GACT are used frequently:                 alternative standards (sometimes
                                                   and will result in noncompliance with                   (1) Sweeping/cleaning, and (2)                        referred to as ‘‘GACT’’ standards) that
                                                   the regulation.                                         purchasing only materials that are free               ‘‘provide for the use of generally
                                                                                                           (to the greatest extent possible) of HAP
                                                   2. Subcategorization                                                                                          available control technologies or
                                                                                                           metals. Of the particulate matter (PM)
                                                      Comment: One commenter states that                                                                         management practices * * * to reduce
                                                                                                           control technologies EPA proposed as
                                                   the legal basis for EPA’s                                                                                     emissions of hazardous air pollutants.’’
                                                                                                           GACT, the commenter claims that large
                                                   subcategorization of the Paints and                                                                           42 U.S.C. 7412(d)(5).
                                                                                                           paints and allied products                               The commenter stated that EPA
                                                   Allied Products Manufacturing area                      manufacturing facilities frequently use
                                                   source category into large and small                                                                          provides no explanation for its decision
                                                                                                           baghouses to reduce PM/HAP                            to issue GACT standards instead of
                                                   facilities is well established. The                     emissions, while smaller (less than 100
                                                   commenter asserts that section 112(d)(1)                                                                      MACT standards for the Paints and
                                                                                                           lb/year emission) facilities most often
                                                   of the Clean Air Act provides that EPA                                                                        Allied Products Manufacturing area
                                                                                                           do not. The commenter also states that
                                                   ‘‘may distinguish among classes, types,                                                                       source category.
                                                                                                           the consideration of costs and economic                  Response: As the commenter
                                                   and sizes within a source category or                   impacts is especially important for
                                                   subcategory in establishing such                                                                              recognizes, in CAA section 112(d)(5),
                                                                                                           determining GACT for small paints and                 Congress gave EPA explicit authority to
                                                   standards.’’ 42 U.S.C. 7412(d)(1). The                  allied products manufacturing facilities
                                                   commenter also notes that the Clean Air                                                                       issue alternative emission standards for
                                                                                                           because, given their extremely low level              area sources. Specifically, CAA section
                                                   Act supports an EPA determination that                  of HAP emissions, requiring additional
                                                   work practice standards and general                                                                           112(d)(5), which is entitled ‘‘Alternative
                                                                                                           controls would result in only marginal
                                                   management practices constitute GACT                                                                          standard for area sources,’’ provides:
                                                                                                           reductions in emissions at very high
                                                   for small Paints and Allied Products                    costs for modest incremental                            With respect only to categories and
                                                   Manufacturing sources.                                  improvement in control.                               subcategories of area sources listed pursuant
                                                      According to the commenter, a review                    Response: EPA does not believe that                to subsection (c) of this section, the
                                                   of the commenter’s internal data show                                                                         Administrator may, in lieu of the authorities
                                                                                                           subcategories in the Paints and Allied                provided in paragraph (2) and subsection (f)
                                                   significant differences between larger                  Products Manufacturing area source                    of this section, elect to promulgate standards
                                                   and smaller facilities based on                         category are warranted. In particular,                or requirements applicable to sources in such
                                                   production levels, matching EPA                         EPA has no information demonstrating                  categories or subcategories which provide for
                                                   estimates that the metal HAP emissions                  that paints and allied products                       the use of generally available control
                                                   for a typical ‘‘small emission’’ area                   manufacturing facilities that emit more               technologies or management practices by
                                                   source facility are only about 10 percent               than 100 lbs/year of HAP are of a                     such sources to reduce emissions of
                                                   of the level of emissions for a typical                 different class, type, or size than similar           hazardous air pollutants.
                                                   ‘‘large emission’’ area source facility.                facilities with lower emissions. In                   See CAA section 112(d)(5) (Emphasis
                                                      The commenter states that in the area                contrast, in the Chemical Manufacturing               added).
                                                   source rule for Chemical Manufacturing,                 Area Source rule, EPA had information                    There are two critical aspects to CAA
                                                   EPA evaluated impacts for two                           to support a conclusion that facilities               section 112(d)(5). First, CAA section
                                                   groupings or subcategories for metal                    above a certain total resource                        112(d)(5) applies only to those
                                                   HAP and considered a threshold                          effectiveness value had different                     categories and subcategories of area
                                                   because of an observed difference in                    continuous process vents than facilities              sources listed pursuant to CAA section
                                                   operation depending on the emission                     below that TRE value. See 73 FR 58352,                112(c). The commenter does not dispute
                                                   rate. The commenter further notes that                  58364–65 (Oct. 6, 2008). We do not have               that EPA listed the area source category
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                                                   EPA realized that there was a difference                any such information for the Paints and               noted above pursuant to CAA section
                                                   between facilities with higher HAP                      Allied Products Manufacturing source                  112(c)(3). Second, CAA section
                                                   emissions that manufactured products                    category. Absent such a demonstration,                112(d)(5) provides that, for area sources
                                                   containing HAP as an intended part of                   the Agency has no basis to support                    listed pursuant to CAA section 112(c),
                                                   the product, and a majority of facilities               subcategorizing facilities with higher                EPA ‘‘may, in lieu of’’ the authorities
                                                   with low emissions where the HAP                        emissions from those with lower                       provided in CAA section 112(d)(2) and
                                                   originated from impurities in raw                       emissions. Further, while the                         112(f), elect to promulgate standards
                                                   materials. The commenter believes there                 commenters assert that larger facilities              pursuant to CAA section 112(d)(5). CAA


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                                                                    Federal Register / Vol. 74, No. 231 / Thursday, December 3, 2009 / Rules and Regulations                                       63513

                                                   Section 112(d)(2) provides that emission                112(c)(3), EPA still must have a                      determination, where costs cannot be
                                                   standards established under that                        reasoned basis for the GACT                           considered, could result in only
                                                   provision ‘‘require the maximum degree                  determination for the particular area                 marginal reductions in emissions at very
                                                   of reduction in emissions’’ of HAP (also                source category. The legislative history              high costs for modest incremental
                                                   known as MACT). CAA section                             supporting section 112(d)(5) provides                 improvement in control for the area
                                                   112(d)(3), in turn, defines what                        that GACT is to encompass:                            source category.
                                                   constitutes the ‘‘maximum degree of                       ‘‘* * * methods, practices and techniques           2. Metal HAP Standards
                                                   reduction in emissions’’ for new and                    which are commercially available and
                                                   existing sources. See CAA section                       appropriate for application by the sources in            Comment: One commenter states that
                                                   112(d)(3).6 Webster’s dictionary defines                the category considering economic impacts             although particulate control devices are
                                                   the phrase ‘‘in lieu of’’ to mean ‘‘in the              and the technical capabilities of the firms to        generally available, EPA has not
                                                   place of’’ or ‘‘instead of.’’ See Webster’s             operate and maintain the emissions control            adequately supported its proposal to set
                                                   II New Riverside University (1994).                     systems.’’                                            an opacity standard rather than a
                                                   Thus, CAA section 112(d)(5) authorizes                  The discussion in the Senate report                   particulate matter standard. The
                                                   EPA to promulgate standards under                       clearly provides that EPA may consider                commenter notes that EPA
                                                   CAA section 112(d)(5) that provide for                  costs in determining what constitutes                 acknowledged that most of the State
                                                   the use of GACT, instead of issuing                     GACT for the area source category.                    operating permits for facilities in this
                                                   MACT standards pursuant to CAA                          Congress plainly recognized that area                 category impose a ‘‘concentration or
                                                   section 112(d)(2) and (d)(3). The statute               sources differ from major sources,                    mass emission particulate limit that
                                                   does not set any condition precedent for                which is why Congress allowed EPA to                  requires testing using an appropriate
                                                   issuing standards under CAA section                     consider costs in setting GACT                        particulate test method, in most cases
                                                   112(d)(5) other than that the area source               standards for area sources under section              EPA Method 5.’’ The commenter says
                                                   category or subcategory at issue must be                112(d)(5), but did not allow that                     that EPA rejected this widespread
                                                   one that EPA listed pursuant to CAA                     consideration in setting MACT floors for              approach of a concentration or mass
                                                   section 112(c), which is the case here.7                major sources pursuant to section                     emission limit, instead adopting opacity
                                                      We disagree with the commenter’s                     112(d)(3). This important dichotomy                   as a surrogate for assessing mass
                                                   assertion that we must provide a                        between section 112(d)(3) and section                 emissions. The commenter states that
                                                   rationale for issuing GACT standards                    112(d)(5) provides further evidence that              EPA failed to demonstrate that the use
                                                   under section 112(d)(5), instead of                     Congress sought to do precisely what                  of opacity as a surrogate is sufficient to
                                                   MACT standards. Had Congress                            the title of section 112(d)(5) states, i.e.,          achieve the levels of reduction that are
                                                   intended that EPA first conduct a MACT                  provide EPA the authority to issue                    already imposed by the State operating
                                                   analysis for each area source category,                 ‘‘alternative standards for area sources.’’           permits that rely on particulate testing.
                                                   Congress would have stated so expressly                    Notwithstanding the commenter’s                    The commenter says that EPA’s reliance
                                                   in section 112(d)(5). Congress did not                  claim, EPA properly issued standards                  on a 1991 study of benefits of opacity
                                                   require EPA to conduct any MACT                         for the area source categories at issue               monitors applied to Portland Cement
                                                   analysis, floor analysis or beyond-the-                 here under section 112(d)(5), and in                  Kilns was unpersuasive. The commenter
                                                   floor analysis before the Agency could                  doing so provided a reasoned basis for                also notes that in the recently proposed
                                                   issue a section 112(d)(5) standard.                     its selection of GACT for these area                  NESHAP for the Portland Cement
                                                   Rather, Congress authorized EPA to                      source categories. As explained in the                Manufacturing Industry, EPA rejected
                                                   issue GACT standards for area source                    proposed rule, EPA evaluated the                      the use of an opacity standard, stating
                                                   categories listed under section 112(c)(3),              control technologies and management                   that ‘‘we do not believe that opacity is
                                                   and that is precisely what EPA has done                 practices that reduce HAP emissions at                an accurate indicator of compliance
                                                   in this rulemaking.                                     paints and allied products                            with the proposed PM emissions limit.’’
                                                      Although EPA need not justify its                    manufacturing facilities, including those                Another commenter notes that there is
                                                   exercise of discretion in choosing to                   at both major and area sources. In its                no definition of capture or control
                                                   issue a GACT standard for an area                       evaluation, EPA used information on                   efficiency in the proposed rule. The
                                                   source listed pursuant to section                       pollution prevention from industry                    commenter recommends that EPA
                                                                                                           trade associations, and reviewed                      consider implementing capture and
                                                      6 Specifically, CAA section 112(d)(3) sets the
                                                                                                           operating permits to identify the                     control system efficiencies parallel to
                                                   minimum degree of emission reduction that MACT          emission controls and management                      those in the NESHAP for Nine Metal
                                                   standards must achieve, which is known as the
                                                   MACT floor. For new sources, the degree of              practices that are currently used to                  Fabrication and Finishing Sources (40
                                                   emission reduction shall not be less stringent than     control volatile and particulate HAP                  CFR part 63, subpart XXXXXX). In this
                                                   the emission control that is achieved in practice by    emissions. We also considered                         rule, the commenter states that the term
                                                   the best controlled similar source, and for existing    technologies and practices at major and               ‘‘adequate emissions capture methods’’
                                                   sources, the degree of emission reduction shall not
                                                   be less stringent than the average emission             area sources in similar categories.                   is defined in § 63.11522 to include
                                                   limitation achieved by the best performing 12              Finally, even though not required,                 ‘‘* * * drawing greater than 85 percent
                                                   percent of the existing sources for which the           EPA did provide a rationale for why it                of the airborne dust generated from the
                                                   Administrator has emissions information. CAA            set a GACT standard in the proposed                   process into the control device.’’ The
                                                   Section 112(d)(2) directs EPA to consider whether
                                                   more stringent emission reductions (so called
                                                                                                           rule. In the proposal, we explained that              commenter continues by saying that the
                                                   beyond-the-floor limits) are technologically            the facilities in the source categories at            Metal Fabrication and Finishing
                                                   achievable considering, among other things, the         issue here are already well controlled                NESHAP requires spray paint booths to
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                                                   cost of achieving the emission reduction.               for the urban HAP for which the source                be fitted with PM filter technology that
                                                      7 CAA Section 112(d)(5) also references CAA
                                                                                                           category was listed pursuant to section               is ‘‘* * * demonstrated to achieve at
                                                   section 112(f). See CAA section 112(f)(5) (entitled
                                                   ‘‘Area Sources’’ and providing that EPA is not          112(c)(3). Consideration of costs and                 least 98 percent capture. * * *’’
                                                   required to conduct a review or promulgate              economic impacts proves especially                       Response: As the commenter pointed
                                                   standards under CAA section 112(f) for any area         important for the well-controlled area                out, particulate control devices were
                                                   source category or subcategory listed pursuant to
                                                   CAA section 112(c)(3), and for which an emission
                                                                                                           sources at issue in this final action.                determined to be GACT for the control
                                                   standard is issued pursuant to CAA section              Given the current, well-controlled                    of the particulate HAP emissions. Based
                                                   112(d)(5)).                                             emission levels, a MACT floor                         on the existing operating permit


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                                                   63514            Federal Register / Vol. 74, No. 231 / Thursday, December 3, 2009 / Rules and Regulations

                                                   requirements for paints and allied                      opacity limit for the specific purpose for            addition, the requirements of the rule
                                                   products manufacturing, we found a                      which EPA is adopting such a limit in                 are satisfied if the pigments and solids
                                                   variety of formats and units, e.g.,                     today’s action. Therefore, we believe our             that contain HAP in the grinding and
                                                   percent opacity, allowable PM or PM10                   decision to establish GACT as the                     milling equipment are in solution.
                                                   emission rates (pounds per hour or tons                 requirement to capture and route PM                   These revisions do not change the intent
                                                   per year), and outlet concentrations                    emissions to a control device that                    of the rule, which is to reduce HAP
                                                   (grains per dry standard cubic foot                     achieves a specified opacity is                       emissions; in the case of each of these
                                                   (gr/dscf)). We evaluated GACT for these                 warranted. This format is retained in the             revisions, minimal HAP are emitted. In
                                                   format options and determined that an                   final rule.                                           other words, we are not requiring use of
                                                   opacity limit was the most appropriate                     In summary, we believe the                         a particulate control device during
                                                   selection. As discussed below, there are                requirement to capture and route PM                   periods when alternative compliance
                                                   cost and technical issues associated                    emissions to a control device that                    methods will ensure that particulate
                                                   with demonstrating compliance with a                    achieves a specified opacity limit is                 emissions will be controlled. Each of
                                                   PM numerical emission limit or a                        GACT. This technology is generally                    these compliance alternatives will
                                                   percent reduction standard, such that                   available, and opacity is a reasonable                achieve at least as much reduction of
                                                   they do not constitute GACT for this                    and effective means of ensuring that the              emissions of the target HAP as will use
                                                   source category.                                        control device is functioning correctly               of a particulate control device.
                                                      As was stated in the proposal, we had                and achieving emission reductions.                    Therefore, we believe that these
                                                   concerns with the economic impact of                       Comment: EPA proposed that new                     revisions address the commenters’
                                                   particulate matter testing on the affected              and affected sources must capture                     concerns because use of a particulate
                                                   facilities, many being small businesses.                particulate emissions and route them to               control device is not required if a
                                                   A typical EPA Method 5 PM emissions                     a particulate control device during the               facility does not have any metal HAP
                                                   test used for an emission limit or a                    addition of pigments and other solids                 emissions, whether it is because the
                                                   percent reduction standard would cost                   and during the grinding and milling of                metal HAP is in paste, liquid, or slurry
                                                   between $3,000 and $10,000, while the                   solids. Two commenters agree with EPA                 form during grinding and milling or
                                                   cost of performing a Method 203C test                   that, after the addition processes, the               because a facility is not venting
                                                   is approximately $2,000, assuming an                    pigments and associated metal HAP are                 emissions to the atmosphere.
                                                   off-site contractor conducts the test.8 In              in solution and emissions are minimal.                  We agree with the commenter that
                                                   addition, the manufacture of paints and                 Two commenters question whether                       particulate controls should be used
                                                   allied products is a batch process. The                 particulate controls are needed during                during the addition of solid materials
                                                   addition of pigments and solids, when                   the grinding and milling stage, which                 that contain HAP to high speed
                                                   the particulate control device would                    occurs after the addition process when                dispersion.
                                                   need to operated, can be completed in                   the pigments are in solution. One of the                Comment: Several commenters object
                                                   minutes, whereas the typical Method 5                   commenters notes that often grinding                  to the 5 percent opacity limit. One of the
                                                   test is run for sixty minutes. This                     and milling equipment is fully enclosed,              commenters states that most paint
                                                   presents technical issues with stopping                 and there are typically no HAP                        facilities with particulate controls do
                                                   and starting the Method 5 test method                   emissions from the process. Two                       not have opacity limits, and for those
                                                   in order to capture a representative                    commenters suggest that particulate                   facilities that do, the existing limits are
                                                   sample of the particulate emissions from                controls only be required when                        not as stringent as the proposed 5
                                                   the particulate control device during the               pigments and solids are added to the                  percent opacity limit. Based on the
                                                   addition of pigments and solids. Based                  high speed dispersion tanks.                          operating permit information in the
                                                   on these cost and technical issues, we                     Response: There are a number of                    docket, the commenter believes that
                                                   determined that an opacity standard                     different milling and grinding methods                EPA’s proposal of 5 percent is arbitrary
                                                   would minimize the economic burden                      and equipment that are used in the                    and indicated that based on real-world
                                                   on the facilities covered by this rule                  paints and allied products                            experiences; they stated that 30 percent
                                                   while still ensuring that the particulate               manufacturing industry. As the                        opacity is more realistic. Two of the
                                                   control device is well-designed and                     commenters note, many grinding and                    commenters note that only three of the
                                                   operated.                                               milling processes are fully enclosed and              44 facilities evaluated for this
                                                      EPA’s statements in the May 6, 2009                  typically do not emit HAP from this                   rulemaking had a 5 percent opacity
                                                   proposed amendments for the Portland                    process. In addition, there are minimal               requirement. The commenters indicate
                                                   Cement NESHAP (74 FR 211360) are not                    HAP emissions from the grinding and                   that the remaining facilities have
                                                   relevant here. Our statements in that                   milling processes that occur when the                 opacity requirements of 20 percent or
                                                   proposal were in relation to the use of                 pigments are in solution. Therefore, the              greater. Given these facts, the two
                                                   an alternative opacity standard to                      final rule has been revised to provide                commenters believe that an opacity
                                                   demonstrate compliance with a numeric                   three additional compliance options                   standard of 20 percent would be more
                                                   PM limit. In contrast, in the Paints and                other than the use of a particulate                   in line with what is intended by GACT.
                                                   Allied Products Manufacturing area                      control device. A particulate control                 One commenter reviewed the 44
                                                   source NESHAP the opacity limit is not                  device must be used during the addition               operating permits in the docket for this
                                                   used to demonstrate compliance with a                   of dry pigments or other dry materials                rulemaking and found that only 3 had
                                                   numeric PM limit. The opacity limit                     that contain HAP to the grinding and                  a 5 percent opacity limit; 11 had a 20
                                                   established in this rule is a standard and              milling equipment. However, the use of                percent limit, 2 had 30 percent limit, 13
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                                                   not a surrogate for particulate matter.                 pigments or materials that contain HAP                had 40 percent limit, and 2 had an
                                                   The statements in the Portland Cement                   in paste, slurry, or liquid form instead              observed or no opacity limit. The
                                                   proposal did not question the use of an                 of in dry form is an alternative means                commenter states that since this rule is
                                                                                                           of compliance for this area source rule.              governed by GACT, EPA is obligated to
                                                     8 Revision of Source Category List for Standards
                                                                                                           In addition, fully enclosing the grinding             determine the control and work
                                                   Under Section 112(k) of the Clean Air Act; and          and milling equipment is a second                     practices that are most commonly used
                                                   National Emission Standards for Hazardous Air
                                                   Pollutants for Area Sources: Ferroalloys Production     alternative means of compliance, in lieu              or that are most prevalent. The
                                                   Facilities, September 15, 2008.                         of using a particulate control device. In             commenter maintains that EPA has not


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                                                                    Federal Register / Vol. 74, No. 231 / Thursday, December 3, 2009 / Rules and Regulations                                      63515

                                                   appropriately set the standard, and that                trained observer is certified to                         Comment: Numerous commenters
                                                   GACT would be an opacity level of 30                    determine the opacity with a positive                 believe the proposed vessel cover
                                                   percent. In addition, the commenter                     error of less than 7.5 percent opacity,               requirements are nearly impossible to
                                                   states that as most of the affected                     and to observe 95 percent of the                      institute both from a compliance and
                                                   sources under this rulemaking are small                 readings with a positive error of less                enforcement standpoint. Many of the
                                                   businesses, EPA should not maintain an                  than 5 percent opacity. To take into                  commenters believe that it is nearly
                                                   opacity emissions limit requirement in                  account this observer error, we have                  impossible to confirm that a lid or cover
                                                   the final rulemaking. However, the                      revised the final opacity limit to be less            touches at least 90 percent of the vessel
                                                   commenter says that if EPA does decide                  than 10 percent opacity when averaged                 rim at any given time. Further, states a
                                                   to codify an opacity emissions level, it                over a six minute period.                             commenter, if a cover is constructed
                                                   be no less than 30 percent.                                                                                   from a flexible material, it will most
                                                      Response: The commenter’s statement                  3. Volatile HAP Standards                             likely move around during the
                                                   that GACT must be based on the control                    Comment: Three commenters state                     manufacturing process. The commenter
                                                   technologies or emission limitations of                 that operators need to open nearly every              continues that solid lids may ‘‘move
                                                   the majority is incorrect. Rather, GACT                 process or storage tank at some time for              around,’’ and/or warp over time. The
                                                   reflects what is generally available, and               quality control testing, adding of                    commenter notes that only one of the
                                                   a control technology may be generally                   materials or removal of product.                      State permits in the docket had this
                                                   available even if a majority of sources                 Therefore, consistent with the                        requirement and that this should not be
                                                   are not currently using it. However, in                 Miscellaneous Coatings Manufacturing                  considered GACT. Another commenter
                                                   the case of paints and allied products                  MACT (MCM), one commenter requests                    believes that the plywood covers/lids
                                                   manufacturing, we found that the use of                 that EPA revise the regulation such that              that EPA used to estimate costs for this
                                                   particulate control devices is a common                 operators are allowed to open any                     rule would probably not meet this
                                                   practice; the permits we obtained                       vessel, be it mixing, process, or storage,            standard, as plywood may warp over
                                                   indicated that 79 percent of the facilities             for quality control testing and sampling              time. Therefore, the commenters suggest
                                                   were currently equipped with a                          of the product, addition of materials, or             that this requirement be deleted.
                                                   particulate control device.                             removal of product from the vessel. One                  Response: The 90 percent cover
                                                      We disagree with the commenter’s                     commenter notes that the proposed rule                requirement is intended to ensure that
                                                   interpretation of the opacity limitations                                                                     the lid or cover properly fits on the
                                                                                                           requires that process and storage vessels
                                                   in the permit data. The majority of                                                                           process vessel that contains the target
                                                                                                           must be kept covered when not in use.
                                                   opacity limitations in the permits are                                                                        HAP. The 90 percent cover requirement
                                                                                                           The commenter notes that EPA
                                                   general opacity limits that are intended                                                                      can be calculated by subtracting the
                                                                                                           provided an exception during the
                                                   to limit the amount of fugitive emissions                                                                     length of any visible gaps from the
                                                                                                           manufacturing process to allow for
                                                   that are emitted to the atmosphere from                                                                       circumference of the process vessel, and
                                                                                                           quality control or during the addition of
                                                   an industrial facility. These fugitive                                                                        dividing this number by the
                                                                                                           pigments. The commenter recommends
                                                   emissions include road dust, storage                                                                          circumference of the process vessel. We
                                                                                                           that a similar exception be provided to
                                                   pile and other non-process emissions                                                                          believe this requirement also addresses
                                                                                                           gain access to process and storage
                                                   from an industrial facility. We believe                                                                       the issue of warping of the cover over
                                                   that many of these opacity limits in the                vessels for emptying, cleaning, and
                                                                                                                                                                 time, because if the cover warps or
                                                   permits are not intended to limit the                   maintenance. One commenter states that
                                                                                                                                                                 moves around so that the vessel is not
                                                   emissions from a particulate control                    some of their vessels are cleaned
                                                                                                                                                                 meeting the 90 percent coverage
                                                   device. To determine an appropriate                     manually, and therefore covers cannot
                                                                                                                                                                 requirement, then the cover should be
                                                   opacity limit for this rule, we reviewed                be maintained over the vessel at all
                                                                                                                                                                 replaced in order to effectively control
                                                   documents related to opacity and                        times. The commenters subsequently
                                                                                                                                                                 the HAP emissions. We understand that
                                                   particulate control devices. Based on                   believe that an exemption needs to be                 the cover may move around during the
                                                   this review, we concluded that the                      added to the final rule for inspection                manufacturing process; however we
                                                   opacity from a properly operated                        and/or cleaning of the process vessels.               believe the 90 percent cover
                                                   particulate control device would be zero                  Response: In the proposed rule, we                  requirement provides the best guidance
                                                   or near zero. Therefore, we proposed a                  recognized certain situations during                  for covering a process vessel that
                                                   5 percent opacity standard for the                      which process and storage vessels need                contains HAP. It ensures that HAP
                                                   particulate control device.                             to be opened. In establishing the GACT                emissions are controlled, but provides
                                                      We selected an opacity standard                      for this area source, we did not include              some flexibility (i.e., as much as ten
                                                   because opacity provides an indication                  other necessary actions. As such, we                  percent of the circumference of the lid
                                                   of the concentration of particulates                    have amended the final rule so that                   need not be in contact with the cover)
                                                   leaving an exhaust stack. The more                      operators may open any vessel                         to accommodate movement of the
                                                   particulate matter that is passed through               necessary for quality control testing and             covers that may occur during the
                                                   the exhaust, the more light will be                     product sampling, addition of materials,              manufacturing process.
                                                   blocked, and, as a result, a higher                     or product removal. We did not include                   Further, the 90 percent cover
                                                   opacity percentage is observed. The                     maintenance, because we believe that                  requirement is consistent with the
                                                   documents that we reviewed                              maintenance of the process vessel                     standard procedures EPA has observed
                                                   determined that in many cases a                         should be performed when the process                  at existing paints and allied product
                                                   properly maintained particulate control                 vessel is empty. We have also revised                 manufacturing facilities. Some facilities
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                                                   device could achieve zero or near zero                  the regulations to only require lids or               are subject to similar 90 percent cover
                                                   opacity. However, many of these                         covers on process or storage vessels that             requirements under state or local
                                                   measurements were determined using a                    contain benzene or methylene chloride.                regulations (for example, San Diego
                                                   continuous opacity monitor system                       Process or storage vessels that do not                County). Based on our data, nearly all
                                                   (COMS). For this rule, we believe all of                contain benzene or methylene chloride,                paints and allied product manufacturing
                                                   the facilities will measure opacity using               and process or storage vessels that are               facilities use lids on process vessels to
                                                   a trained observer, who assigns opacity                 empty, are not required to have covers                prevent loss of product; this makes good
                                                   readings in 5 percent increments. The                   or lids.                                              business sense. Lid options include


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                                                   63516            Federal Register / Vol. 74, No. 231 / Thursday, December 3, 2009 / Rules and Regulations

                                                   tight-fitting stainless steel lids,                     The commenter requests that if the                    control systems require initial and
                                                   elasticized plastic ‘‘shower caps,’’ and                problem persists for more than 24 hours,              ongoing system integrity inspections as
                                                   plywood covers. The 90 percent cover                    then the owner/operator should treat the              well as integrity inspections after each
                                                   requirement is designed to remove any                   observation as a deviation, or they can               incidence of maintenance or repair. The
                                                   uncertainty about whether a vessel is                   have the option to conduct a formal                   commenter believes that these
                                                   adequately covered, for both the facility               opacity test using a trained Method 9                 inspections are necessary to assure the
                                                   manager and the enforcement                             observer.                                             successful ongoing capture and control
                                                   personnel. Therefore, the 90 percent                       Response: We appreciate the basic                  of the PM emissions from paint
                                                   cover requirement is included in the                    concerns of the commenters with regard                manufacturing. However, the
                                                   final rule.                                             to Method 9, although we have not                     commenter states that the exact
                                                                                                           elected to incorporate the specific                   frequency, extent, and nature of these
                                                   E. Testing, Monitoring, and Inspection                  suggestions made. In the final rule, we
                                                   Requirements                                                                                                  inspections should be defined by the
                                                                                                           have changed the requirement, which                   coatings manufacturer in a written plan
                                                   1. Visual Emissions Requirement                         now reads that an initial Method 203C                 with which they should comply; the
                                                      Comment: Several commenters state                    test must be conducted to demonstrate                 elements of the plan should be clearly
                                                   that EPA Method 9 is burdensome. One                    compliance with a 10 percent opacity                  established in the rule. The commenter
                                                   commenter suggests that EPA allow for                   limit. Upon re-evaluation of the data                 recommends that the hood and flexible
                                                   an alternative or modification to Method                and actual facility conditions, we                    ductwork portion of the system be
                                                                                                           determined that Method 203C better                    subject to informal inspections each
                                                   9 that has been widely implemented
                                                                                                           characterizes the emissions from the                  week of use while the rigid portion of
                                                   across the country. Two commenters
                                                                                                           paints and allied product manufacturing               the ductwork be subject to annual
                                                   state that the area source NESHAP
                                                                                                           operations. The time in which the                     inspections, or to inspection after any
                                                   requirements for the Nine Metal
                                                                                                           emissions are present are significantly               maintenance or repair work is
                                                   Fabrication and Finishing Sources allow
                                                                                                           shorter than the thirty-minute visual                 performed on the duct system. The
                                                   facilities to utilize EPA Method 22 in
                                                                                                           inspection of Method 9. Method 203C is                commenter recommends that initial
                                                   lieu of EPA Method 9 if no visible
                                                                                                           similar to Method 9 in training;                      corrective action should be immediately
                                                   emissions are observed. One commenter
                                                                                                           however, Method 203C specifically                     undertaken to mitigate any problems
                                                   believes that it is highly unlikely there
                                                                                                           allows for these short time limits with               when system integrity is compromised
                                                   would be visible emissions from a                       a one-minute average.
                                                   facility that uses a particulate control                                                                      and the identified problem fully
                                                                                                              We have also removed the                           corrected and documented within 15
                                                   device, and requiring EPA Method 22                     requirement to conduct additional
                                                   for periodic monitoring should be more                                                                        days of first discovery. Two commenters
                                                                                                           Method 9 tests every six months. In                   believe that a weekly inspection of the
                                                   than adequate for this source category.                 place of these semi-annual Method 9
                                                   One commenter states that other                                                                               particulate control device is not
                                                                                                           tests, the final rule requires that a
                                                   methods use observation and reporting                                                                         practical. A commenter states that
                                                                                                           Method 22 visible emissions
                                                   techniques very similar to Method 9,                                                                          because ductwork leaks under a vacuum
                                                                                                           observation be conducted once per
                                                   except that an uncertified observer                                                                           cannot be visually detected, weekly
                                                                                                           quarter. If this observation detects
                                                   would be permitted to make an initial                                                                         visual leak inspections of dry
                                                                                                           visible emissions for six minutes of the
                                                   determination of any visible emission.                                                                        particulate control device ductwork
                                                                                                           required 15 minute observation period,
                                                   The commenter continues, stating that if                                                                      should not be required. In addition, the
                                                                                                           then a Method 203C test is required
                                                   a visible emission is identified, then                                                                        commenter notes that EPA has
                                                                                                           within one week. If the Method 203C
                                                   corrective measures must be taken. The                                                                        historically exempted the inspection of
                                                                                                           test then detects an opacity greater than
                                                   commenter notes that if more than a                     10 percent, the corrective action and                 ductwork as excessive. The commenter
                                                   trace of visible emissions persists after               retesting within 15 days requirement                  states that several MACT rules require
                                                   maintenance has been completed, the                     that was in the proposed rule would                   only annual inspection of ductwork.
                                                   facility must either determine whether                  apply. This information must also be                  One commenter believes that the
                                                   the emission limit is being exceeded                    included in the annual report. We                     requirement should be replaced with a
                                                   using a certified observer, or shut down                believe that Method 22 provides a                     standard condition for proper operation
                                                   the process. The commenter says that                    comparable approach to ensure that any                and maintenance in accordance with the
                                                   this approach is currently being used by                emission control equipment is operating               manufacturer’s recommendations.
                                                   their facility and suggests that EPA                    properly and HAP emissions are                           For dry PM control devices, one
                                                   include this method in the final                        reduced. Method 22 is used to ensure                  commenter recommends that the
                                                   rulemaking. One commenter believes                      the process and any emission control                  pressure drop across the system be
                                                   that a simple evaluation of visible                     equipment is operating properly and is                monitored continuously using some
                                                   emissions coupled with the pressure                     not generating excess emissions.                      type of manometer or pressure drop
                                                   drop monitoring is adequate to monitor                  Method 22 is comparable to Method                     gauge to verify that the pressure drop is
                                                   the ongoing proper operation of the add-                203C because both methods use the                     maintained within the range
                                                   on dry PM control device. Another                       human eye to determine if visible                     recommended by the manufacturer of
                                                   commenter suggests that EPA provide                     emissions are observed from an                        the control device, which includes
                                                   an alternative to the formal Method 9                   industrial activity. Therefore, we believe            considerations based on the filter media
                                                   observation by allowing the owner/                      that this approach reduces the burden of              employed, the method of filter media
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                                                   operator to conduct a general visible                   the semi-annual Method 9 testing that                 cleaning employed (if any), and the
                                                   emission observation once per calendar                  the commenters were concerned about,                  loading of the effluent stream being
                                                   quarter. The commenter says that if the                 while also ensuring that the control                  controlled. The commenter believes that
                                                   owner/operator does observe any visible                 devices are operating properly.                       wet PM control systems should be
                                                   emissions during the quarterly                             Comment: Three commenters have                     inspected on a frequency recommended
                                                   observations, then the owner/operator                   suggestions related to the proposed                   by the control system manufacturer, and
                                                   should be allowed to address the                        inspection requirements. One of the                   the frequency as well as the parameters
                                                   situation causing the visible emissions.                commenters agrees that wet and dry PM                 to be monitored should be clearly


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                                                                    Federal Register / Vol. 74, No. 231 / Thursday, December 3, 2009 / Rules and Regulations                                        63517

                                                   defined in a written management plan                    emissions monitoring will ensure that                 of a deviation report and annual
                                                   developed and implemented by the                        the particulate control device is                     certification when deviations have
                                                   coatings manufacturer employing the                     operating as intended, and that no                    occurred during a calendar year will
                                                   system. The commenter says that this                    excess emissions are emitted. Many of                 assist regulated entities in maintaining
                                                   graduated type of approach to                           the paints and allied products                        compliance and will assist the
                                                   inspection frequency and the                            manufacturing facilities are small                    regulatory agencies in compliance
                                                   management plan requirement to define                   businesses, and incorporating a                       oversight.
                                                   the details of the inspection parameters                continuous monitoring system would                       Response: We do not believe that a
                                                   as proposed in the preceding paragraphs                 create an economic hardship on many of                conflict exists between the compliance
                                                   has been used in the area source                        these businesses. Therefore, we have not              certification requirements and the
                                                   NESHAP for Nine Metal Fabrication and                   incorporated the commenter’s                          deviation reports. The compliance
                                                   Finishing Sources. The commenter                        suggestion to require continuous                      certifications of section 63.11603(b) are
                                                   states that this approach would provide                 monitoring of pressure drop. We also                  the baseline requirement to demonstrate
                                                   a viable means to both assure ongoing                   reviewed the graduated type of                        ongoing compliance with the standard.
                                                   compliance while minimizing the                         inspections and monitoring outlined in                However, if a deviation occurs during
                                                   burden of compliance on the source.                     the NESHAP for Nine Metal Fabrication                 the previous twelve month period, the
                                                      Response: We believe that it is                      and Finishing Sources and believe that                facility must prepare and submit a
                                                   important that regular inspections be                   this type of inspection and monitoring                deviation report, which details the
                                                   conducted to ensure that the integrity of               program is not appropriate for the paints             specific area(s) of noncompliance with
                                                   both the capture system and the control                 and allied products industry. Many of                 the standard and efforts undertaken to
                                                   device is maintained, and we agree with                 the nine metal fabrication and finishing              return the source to compliance. These
                                                   the commenters in regard to the                         facilities require continuous operation               are two separate requirements, and the
                                                   inspections of the rigid ductwork.                      of the particulate control device. In                 latter applies in the event of a deviation.
                                                   Therefore, we have clarified in the final               contrast, the majority of paint and allied            Submission of the deviation report is
                                                   rule that the rigid, stationary portions of             products are produced in batches and                  necessary so that the regulatory agency
                                                   the ductwork only need to be inspected                  the operation of the particulate control              remains apprised of the ongoing
                                                   annually. Because the particulate                       device is expected to be intermittent.                compliance status of the facility and can
                                                   control system operates infrequently, we                Therefore, we believe that the proposed               focus their compliance assistance and
                                                   believe annual inspections of the rigid,                inspection and monitoring requirements                enforcement response efforts.
                                                   stationary ductwork is sufficient to                    for the paints and allied products                       However, we believe that section
                                                   ensure the integrity of the particulate                 manufacturing industry are appropriate.               § 63.11603(b)(2)(ii), which requires that
                                                   control system. However, we do believe                    While the proposed rule included                    a statement in accordance with § 63.9(h)
                                                   that inspection of flexible ductwork                    inspection requirements, it did not                   of the General Provisions to be signed
                                                   needs to be conducted more frequently.                  contain any provisions regarding                      by a responsible official, is sufficient to
                                                   Therefore, we retained the weekly                       required actions if problems were found               ensure compliance with the regulations,
                                                   inspection requirement for hoods and                    during an inspection. We agree that                   and that no additional requirement that
                                                   flexible ductwork in the final rule. We                 such a requirement is needed to ensure                a responsible official must certify that
                                                   do not agree with the one commenter                     that corrective action will be taken                  all requirements were met in a
                                                   who states that the best approach is to                 promptly. Therefore, we have                          particular month by the 15th day of the
                                                   establish the inspection frequency in                                                                         following month is necessary.
                                                                                                           incorporated the commenter’s
                                                   site-specific plans. Site-specific plans                                                                      Therefore, the final rule does not
                                                                                                           suggestion to require that corrective
                                                   create additional reporting burdens for                                                                       include the latter certification
                                                                                                           action be initiated as soon as practicable
                                                   small businesses. In addition, site-                                                                          requirement.
                                                                                                           to mitigate any problems when system                     These revisions mean that a
                                                   specific plans may not provide the                      integrity is compromised and that the
                                                   periodic inspections that are needed to                                                                       responsible official must annually
                                                                                                           identified problem be fully corrected                 certify that all requirements have been
                                                   ensure that the particulate control                     and documented within 15 days of first
                                                   device is operating properly. Therefore,                                                                      met. We believe that the annual
                                                                                                           discovery.                                            certification by the responsible official
                                                   we believe that the revised inspections
                                                   will provide the insurance that the                     F. Reporting and Recordkeeping                        is sufficient to ensure that the facility
                                                   particulate control device is operating                 Requirements                                          has complied with all of the
                                                   properly, while reducing the burden on                                                                        requirements throughout the year, and
                                                                                                           1. Compliance Certification                           that the additional burden of monthly
                                                   the facility.
                                                      We agree that continuous monitoring                     Comment: The commenters note that                  certification is not warranted. In
                                                   of pressure drop can be used to ensure                  there seems to be conflict between                    addition, we agree with the commenter
                                                   that the control system is operating                    Section 63.11603(b), which requires the               that the submission of an Annual
                                                   properly; however, we also believe that                 development and retention of                          Compliance Certification and Deviation
                                                   the combination of the system integrity                 compliance certifications and the                     Report from facilities where deviations
                                                   inspections and the visual emissions                    development, retention, and submission                have occurred during the calendar year
                                                   monitoring (discussed below) are                        of deviation reports when deviations                  will assist regulated entities in
                                                   sufficient for the source category and at               from the requirements of the rule exist               maintaining compliance and will assist
                                                   a lower cost than installing, calibrating,              or have existed. Section III.E of the                 the regulatory agencies in compliance
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                                                   and operating a continuous monitoring                   preamble requires that a responsible                  oversight.
                                                   system (CMS). Inspections and visible                   official sign off that all the requirements              Comment: The commenter notes that
                                                   emissions monitoring of the particulate                 were met in the preceding month within                some facilities have older particulate
                                                   control device system provide data                      15 days of the end of each month. Two                 control devices, which while still
                                                   indicative of a well-operated and                       commenters recommend that the                         effective, may not have manufacturer
                                                   maintained control device. The                          required records suffice in                           information available. The commenter
                                                   inspections will ensure there are no                    demonstrating compliance. Another                     states that sources should not be
                                                   leaks in the duct work, while the visible               commenter believes that the submission                prohibited from using these control


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                                                   63518            Federal Register / Vol. 74, No. 231 / Thursday, December 3, 2009 / Rules and Regulations

                                                   devices if they meet the emission                       factors. This is not the case. In fact, for           from the industry. Again, they claim
                                                   standards of this subpart, even though                  purposes of assessing impacts,                        that EPA should discount the nickel
                                                   they no longer have the original                        including cost-effectiveness, as                      emissions from this one company.
                                                   paperwork for the device. The                           presented in the background                           Finally, the commenter says that it
                                                   commenter recommends that if the                        memoranda (EPA–HQ–OAR–2008–                           appears that EPA inadvertently
                                                   original records are not available, the                 0053–0070), the HAP emissions from                    included several pigment manufacturing
                                                   source should follow best operating                     the Paints and Allied Products                        operations in the NEI database, resulting
                                                   practices for the devices.                              Manufacturing category were calculated                in increased metal emissions for the
                                                     Response: We recognize that some                      using the 2002 National Emissions                     industry. The commenter believes that
                                                   facilities may not have, and may not be                 Inventory (NEI) data. The NEI is a                    EPA should remove the emissions
                                                   able to obtain, the manufacturer’s                      national emissions inventory that is                  associated with paint stripper/paint
                                                   instructions, despite their best efforts.               built from the ‘‘ground up.’’ That is,                remover packaging; the company that
                                                   Therefore, we agree with the commenter                  emission estimates generated by                       produces unique nickel based coatings;
                                                   and will remove the reference to the                    individual plants and companies are                   and the emissions from pigment
                                                   manufacturer’s instructions in                          submitted to state and local agencies,                manufacturing operations from the
                                                   § 63.11602(a)(2)(iii) and also remove                   who then submit the data to EPA for                   emissions of the coatings manufacturing
                                                   § 63.11603(c)(3).                                       inclusion in the NEI. While the basis for             industry, since these overstated
                                                                                                           all the emission estimates in the NEI is              emissions have an impact on EPA’s cost
                                                   G. Baseline Emissions and Emission                      not provided, the facilities that submit              effectiveness calculations.
                                                   Reductions                                              emissions data to their state and local                  Response: For purposes of assessing
                                                   1. Emissions Factors                                    agencies generally use test data,                     the impacts of today’s rule, we used the
                                                                                                           emission models, and mass-balance                     2002 NEI data. The source classification
                                                      Comment: Two commenters say that                                                                           codes (SCC) in the 2002 NEI database
                                                                                                           calculations to create their estimates,
                                                   EPA used old AP–42 emission factors                                                                           show that the main sources of
                                                                                                           where such information is available.
                                                   which they believe doubles the                                                                                methylene chloride emissions are from
                                                                                                           The baseline HAP emissions from the
                                                   calculated emissions in comparison to                                                                         general mixing and handling, cleaning,
                                                                                                           2002 NEI were 4,761 tons per year.
                                                   the actual emissions. For example, one                     Emission factor data from AP–42 were               and degreasing. None of these SCCs
                                                   of the commenters states that EPA used                  used to estimate VOC and PM emissions                 indicate that methylene chloride
                                                   an outdated AP–42 emission factor of                    from model plants to estimate the                     emissions occur during packaging of
                                                   1.5 lbs VOC/100 lbs of product that was                 capital and annual costs of control                   paint stripper or paint remover
                                                   developed based on solvent based                        equipment for each of the model plants.               products. Therefore, we have no reason
                                                   coatings from the 1950s. The commenter                  The fraction of the AP–42 VOC and PM                  to believe that the estimated methylene
                                                   states that these coatings are not                      emissions that are HAP were calculated                chloride emissions used in the baseline
                                                   representative of today’s high solids and               using the HAP/VOC mass fraction                       emissions (EPA–HQ–OAR–2008–0053–
                                                   waterborne coatings. The commenters                     obtained from the facilities that reported            0070) are incorrect.
                                                   point out that Chapter 8 of EPA’s                       both HAP and VOC emissions in the                        We reviewed the SCCs and process
                                                   Emission Inventory Improvement                          2002 NEI database. Using the                          descriptions in the 2002 NEI database
                                                   Program (EIIP) states that the use of                   assumptions from the Regulatory                       and did not find any pigment
                                                   source-specific emission models/                        Alternative Impacts memorandum                        manufacturing facilities. Therefore, no
                                                   equations is the preferred technique for                (EPA–HQ–OAR–2008–0053–0073)                           adjustments to the 2002 NEI data are
                                                   estimating emissions from coatings                      regarding the number of facilities that               needed.
                                                   manufacturing mixing operations since                   are currently controlled, the emission                   We reviewed the 2002 NEI emissions
                                                   emission factors (AP–42) are not as                     factors from AP–42, and the HAP/VOC                   data used to develop the baseline
                                                   accurate as specific emission models or                 mass fractions from the 2002 NEI, the                 emissions for the paints and allied
                                                   equations. They said that since EPA is                  HAP emissions were estimated to be                    products source category and found that
                                                   unclear whether the facilities tested in                4,591 tons per year. A comparison                     60 of the 63 of emission data points
                                                   preparing this factor actually represent                between the HAP emissions in the                      used to estimate nickel emissions were
                                                   a random sample of the industry, the                    industry-reported NEI (4,761 tons/yr)                 from combustion sources and should
                                                   AP–42 factor for paint and varnish                      and those estimated from AP–42 factors                not have been included in the baseline
                                                   manufacturing is assigned an emission                   and HAP speciation profiles (4,591)                   emissions. By removing these emission
                                                   factor rating of C. One commenter asks                  supports EPA’s use of the AP–42 factors               points, the total nickel emissions would
                                                   that EPA revise its estimates using                     for estimating emissions from the model               be reduced by 0.028 tons per year, and
                                                   accurate models and data.                               plants, because the AP–42 factors result              the total estimated nickel emissions
                                                      Response: The EIIP provides four                     in a similar estimate of emissions as the             from the paints and allied products
                                                   methods for estimating emissions from                   NEI database.                                         industry would be reduced by 0.070
                                                   paint, ink, and other coating                              Comment: One commenter states that                 tons per year. This decrease in nickel
                                                   manufacturing operations: Emission                      most of the methylene chloride                        emissions would not significantly affect
                                                   factors; source-specific models; mass-                  emissions documented by EPA are from                  the total HAP emissions, which was
                                                   balance calculations; and test data. In                 facilities that package paint stripper/               estimated to be 4,761 tons per year, or
                                                   order of preference, the commenter is                   paint remover products, which are                     the total listed HAP emissions which
                                                   correct that source-specific emissions                  specifically excluded from this                       was estimated to be 221.3 tons per year.
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                                                   models are preferred to using emission                  rulemaking. Therefore, according to the               Therefore, we believe that revising the
                                                   factors. However, when the data                         commenter, EPA should discount any                    estimated baseline HAP emissions
                                                   necessary to run the emissions models                   emissions that result from the packaging              would have little or no impact on the
                                                   are not available, the use of emission                  of methylene-based paint strippers and                cost effectiveness calculations.
                                                   factors is a reasonable way to estimate                 paint removers. In addition, the                         We recognize that the paints and
                                                   emissions. The commenters imply that                    commenter indicates that one company                  allied products manufacturing industry
                                                   all emission levels for this rulemaking                 that produces nickel-based coatings                   has reduced its urban HAP emissions
                                                   were estimated using AP–42 emission                     accounted for most nickel emissions                   over the past decades. The regulations


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                                                                    Federal Register / Vol. 74, No. 231 / Thursday, December 3, 2009 / Rules and Regulations                                                63519

                                                   being finalized today will ensure that                  addition to interpreting the term                        The commenter asserts that ‘‘EPA
                                                   future emissions from paints and allied                 ‘‘unnecessarily burdensome’’ and                      must show * * * that the ‘burden’ of
                                                   products manufacturing operations will                  developing the four-factor balancing test             compliance is unnecessary.’’ This is not,
                                                   be limited to the same level that is being              in the Exemption Rule, EPA applied the                however, one of the four factors that we
                                                   generally achieved today and was                        test to certain area source categories.               developed in the Exemption Rule in
                                                   determined to be GACT. Without such                        The four factors that EPA identified in            interpreting the term ‘‘unnecessarily
                                                   regulations, there is nothing that would                the Exemption Rule for determining                    burdensome’’ in CAA section 502, but
                                                   limit future target HAP emissions from                  whether title V is unnecessarily                      rather a new test that the commenter
                                                   a new paint or allied product                           burdensome on a particular area source                maintains EPA ‘‘must’’ meet in
                                                   manufacturing product.                                  category include: (1) Whether title V                 determining what is ‘‘unnecessarily
                                                                                                           would result in significant                           burdensome’’ under CAA section 502.
                                                   H. Title V Requirements                                 improvements to the compliance                        EPA did not re-open its interpretation of
                                                      Comment: The commenter supports                      requirements, including monitoring,                   the term ‘‘unnecessarily burdensome’’
                                                   EPA’s proposed rule in the exemption of                 recordkeeping, and reporting, that are                in CAA section 502 in the June 1, 2009
                                                   the Paints and Allied Products                          proposed for an area source category (70              proposed rule for the category at issue
                                                   Manufacturing area source category                      FR 75323); (2) whether title V                        in this rule. Rather, we applied the four-
                                                   from Title V permitting requirements.                   permitting would impose significant                   factor balancing test articulated in the
                                                   The commenter believes that the                         burdens on the area source category and               Exemption Rule to the source category.
                                                   proposed recordkeeping and reporting                    whether the burdens would be                          Had we sought to re-open our
                                                   requirements are sufficient to determine                aggravated by any difficulty the sources              interpretation of the term
                                                   compliance with the rule, and EPA                       may have in obtaining assistance from                 ‘‘unnecessarily burdensome’’ in CAA
                                                   should balance these requirements                       permitting agencies (70 FR 75324); (3)                section 502 and modify it from what
                                                   against the level of resources typically                whether the costs of title V permitting               was articulated in the Exemption Rule,
                                                   present at such smaller sites and the                   for the area source category would be                 we would have stated so in the June 1,
                                                   expected amount of emission reductions                  justified, taking into consideration any              2009 proposed rule and solicited
                                                   associated with these requirements.                     potential gains in compliance likely to               comments on a revised interpretation,
                                                      Another commenter states that to                     occur for such sources (70 FR 75325);                 which we did not do. Accordingly, we
                                                   demonstrate that compliance with title                  and (4) whether there are sufficient                  reject the commenter’s attempt to create
                                                   V would be ‘‘unnecessarily                              implementation and enforcement                        a new test for determining what
                                                   burdensome,’’ EPA must show, inter                      programs in place to assure compliance                constitutes ‘‘unnecessarily burdensome’’
                                                   alia, that the ‘‘burden’’ of compliance is              with the NESHAP for the area source                   under CAA section 502, as that issue
                                                   unnecessary. According to the                           category, without relying on title V                  falls outside the purview of this
                                                   commenter, by promulgating title V,                     permits (70 FR 75326).9                               rulemaking.10
                                                   Congress plainly indicated that it                         In discussing the above factors in the                Furthermore, we believe that the
                                                   viewed the burden imposed by its                        Exemption Rule, we explained that we                  commenter’s position that ‘‘EPA must
                                                   requirements as necessary as a general                  considered on ‘‘a case-by-case basis the              show * * * that the ‘‘burden’’ of
                                                   rule. The commenter says that these                     extent to which one or more of the four               compliance is unnecessary’’ is
                                                   requirements provide many benefits that                 factors supported title V exemptions for              unreasonable and contrary to
                                                   Congress clearly viewed as necessary.                   a given source category, and then we                  Congressional intent concerning the
                                                   Thus, continues the commenter, EPA                      assessed whether considered together                  applicability of title V to area sources.
                                                   must show why for any given category,                   those factors demonstrated that                       Congress intended to treat area sources
                                                   special circumstances make compliance                   compliance with title V requirements                  differently under title V, as it expressly
                                                   unnecessary. The commenter maintains                    would be ‘unnecessarily burdensome’                   authorized the EPA Administrator to
                                                   that EPA has not made that showing for                  on the category, consistent with section              exempt such sources from the
                                                   any of the categories it proposes to                    502(a) of the Act.’’ See 70 FR 75323.                 requirements of title V at her discretion.
                                                   exempt.                                                 Thus, we concluded that not all of the                There are several instances throughout
                                                      Response: EPA does not agree with                    four factors must weigh in favor of                   the CAA where Congress chose to treat
                                                   the commenter’s characterization of the                 exemption for EPA to determine that                   major sources differently than non-
                                                   demonstration required for determining                  title V is unnecessarily burdensome for               major sources, as it did in CAA section
                                                   that title V is unnecessarily burdensome                a particular area source category.                    502. Moreover, although the commenter
                                                   for an area source category. As stated                  Instead, the factors are to be considered             espouses a new interpretation of the
                                                   above, the CAA provides the                             in combination, and EPA determines                    term ‘‘unnecessarily burdensome’’ in
                                                   Administrator discretion to exempt an                   whether the factors, taken together,                  CAA section 502 and attempts to create
                                                   area source category from title V if she                support an exemption from title V for a               a new test for determining whether the
                                                   determines that compliance with title V                 particular source category.                           requirements of title V are
                                                   requirements is ‘‘impracticable,                                                                              ‘‘unnecessarily burdensome’’ for an area
                                                   infeasible, or unnecessarily                               9 In the Exemption Rule, in addition to
                                                                                                                                                                 source category, the commenter does
                                                   burdensome’’ on an area source                          determining whether compliance with title V
                                                                                                                                                                 not explain why EPA’s interpretation of
                                                                                                           requirements would be unnecessarily burdensome
                                                   category. See CAA section 502(a). In                    on an area source category, we considered,            the term ‘‘unnecessarily burdensome’’ is
                                                   December 2005, in a national                            consistent with the guidance provided by the          arbitrary, capricious or otherwise not in
                                                   rulemaking, EPA interpreted the term                    legislative history of section 502(a), whether
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                                                                                                           exempting the area source category would adversely
                                                                                                                                                                 accordance with law. We maintain that
                                                   ‘‘unnecessarily burdensome’’ in CAA
                                                                                                           affect public health, welfare or the environment.
                                                   section 502 and developed a four-factor                 See 72 FR 15254–15255, March 25, 2005. As shown         10 If the commenter objected to our interpretation
                                                   balancing test for determining whether                  above, after conducting the four-factor balancing     of the term ‘‘unnecessarily burdensome’’ in the
                                                   title V is unnecessarily burdensome for                 test and determining that title V requirements        Exemption Rule, (s)he should have commented on
                                                   a particular area source category, such                 would be unnecessarily burdensome on the area         and challenged that rule. However, any challenge
                                                                                                           source categories at issue here, we examined          to the Exemption Rule is now time-barred by CAA
                                                   that an exemption from title V is                       whether the exemption from title V would              section 307(b). Although we received comments on
                                                   appropriate. See 70 FR 75320, December                  adversely affect public health, welfare and the       the title V Exemption Rule during the rulemaking
                                                   19, 2005 (‘‘Exemption Rule’’). In                       environment, and found that it would not.             process, no one sought judicial review of that rule.



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                                                   63520            Federal Register / Vol. 74, No. 231 / Thursday, December 3, 2009 / Rules and Regulations

                                                   our interpretation of the term                          commenter argues are eliminated by the                assure compliance with the NESHAP
                                                   ‘‘unnecessarily burdensome’’ in section                 exemptions—are for some reason                        and that EPA retains authority to
                                                   502, as set forth in the Exemption Rule,                unnecessary with respect to the                       enforce this NESHAP under the CAA.
                                                   is reasonable.                                          categories it proposes to exempt. The                 74 FR 26152. We also indicated that
                                                      Comment: One commenter states that                   commenter concludes that EPA does not                 States and EPA often conduct voluntary
                                                   exempting a source category from title V                even acknowledge these benefits to title              compliance assistance, outreach, and
                                                   permitting requirements deprives both                   V, far less explain why they are                      education programs to assist sources,
                                                   the public generally and individual                     unnecessary, and that for this reason                 and that these additional programs will
                                                   members of the public who would                         alone, EPA’s proposed exemptions are                  supplement and enhance the success of
                                                   obtain and use permitting information                   unlawful and arbitrary.                               compliance with this NESHAP. 74 FR
                                                   for the benefit of citizen oversight and                   Response: Once again, the commenter                26152. The commenter does not
                                                   enforcement that Congress plainly                       attempts to create a new test for                     challenge the conclusion that there are
                                                   viewed as necessary. According to the                   determining whether the requirements                  adequate State and Federal programs in
                                                   commenter, the text and legislative                     of title V are ‘‘unnecessarily                        place to ensure compliance with and
                                                   history of the CAA provide that                         burdensome’’ on an area source                        enforcement of the NESHAP. Instead,
                                                   Congress intended ordinary title V                      category. Specifically, the commenter                 the commenter provides an
                                                   permits. The commenter also says that                   argues that EPA does not claim or                     unsubstantiated assertion that
                                                   EPA does not claim, far less                            demonstrate with substantial evidence                 information about compliance by the
                                                                                                           that citizens would have the same                     area sources with these NESHAP will
                                                   demonstrate with substantial evidence,
                                                                                                           access to information and the same                    not be as accessible to the public as
                                                   that citizens have the same ability to
                                                                                                           ability to enforce under these NESHAP,                information provided to a State
                                                   obtain emissions and compliance
                                                                                                           absent title V. The commenter’s position              pursuant to title V. In fact, the
                                                   information about air toxics sources and
                                                                                                           represents a significant revision of the              commenter does not provide any
                                                   to be able to use that information in
                                                                                                           fourth factor that EPA developed in the               information that States will treat
                                                   enforcement actions and in public
                                                                                                           Exemption Rule in interpreting the term               information submitted under this
                                                   policy decisions on a State and local
                                                                                                           ‘‘unnecessarily burdensome’’ in CAA                   NESHAP differently than information
                                                   level. The commenter states that
                                                                                                           section 502. For all of the reasons                   submitted pursuant to a title V permit.
                                                   Congress did not think that enforcement
                                                                                                           explained above, the commenter’s                         Even accepting the commenter’s
                                                   by States or other government entities                  attempt to create a new test for EPA to               assertions that it is more difficult for
                                                   was enough; if it had, Congress would                   meet in determining whether title V is                citizens to enforce the NESHAP absent
                                                   not have enacted the citizen suit                       ‘‘unnecessarily burdensome’’ on an area               a title V permit, in evaluating the fourth
                                                   provisions, and the legislative history of              source category cannot be sustained.                  factor in EPA’s balancing test EPA
                                                   the CAA would not show that Congress                    This rulemaking did not re-open EPA’s                 concluded that there are adequate
                                                   viewed citizens’ access to information                  interpretation of the term                            implementation and enforcement
                                                   and ability to enforce CAA requirements                 ‘‘unnecessarily burdensome’’ in CAA                   programs in place to enforce the
                                                   as highly important, both as an                         section 502. In any event, EPA’s                      NESHAP. The commenter has provided
                                                   individual right and as a crucial means                 interpretation is reasonable.                         no information to the contrary or
                                                   to ensuring compliance. According to                    Furthermore, the commenter’s                          explained how the absence of title V
                                                   the commenter, if a source does not                     statements do not demonstrate a flaw in               actually impairs the ability of citizens to
                                                   have a title V permit, it is difficult or               EPA’s application of the four-factor                  enforce the provisions of the NESHAP.
                                                   impossible—depending on the laws,                       balancing test to the specific facts of the              Comment: One commenter explains
                                                   regulations, and practices of the State in              sources we are exempting, nor do the                  that title V provides important
                                                   which the source operates—for a                         comments provide a basis for the                      monitoring benefits, and, according to
                                                   member of the public to obtain relevant                 Agency to reconsider the exemption as                 the commenter, EPA admits that title V
                                                   information about its emissions and                     we are finalizing it.                                 monitoring, ‘‘may improve compliance
                                                   compliance status. The commenter                           EPA reasonably applied the four                    * * * by requiring monitoring * * * to
                                                   states that, likewise, it is difficult or               factors to the facts of the source category           assure compliance with emission
                                                   impossible for citizens to bring                        at issue in this rule, and the commenter              limitations and control technology
                                                   enforcement actions. The commenter                      has not identified any flaw in EPA’s                  requirements imposed in the standard.’’
                                                   continues that EPA does not claim—far                   application of the four-factor test to the            (74 FR at 26151) The commenter further
                                                   less demonstrate with substantial                       area source category at issue here.                   states that ‘‘EPA argues that ‘the
                                                   evidence, as would be required—that                     Moreover, as explained in the proposal,               monitoring, recordkeeping, and
                                                   citizens would have the same ability to                 we considered implementation and                      reporting requirements in this proposed
                                                   obtain compliance and emissions                         enforcement issues in the fourth factor               rule are sufficient to assure compliance
                                                   information about sources in the                        of the four-factor balancing test.                    with the requirements of the proposed
                                                   categories it proposes to exempt without                Specifically, the fourth factor of EPA’s              rule.’ ’’ Id. The commenter maintains
                                                   title V permits. The commenter also                     unnecessarily burdensome analysis                     that EPA made conclusory assertions
                                                   says that EPA does not claim, far less                  provides that EPA will consider                       and that the Agency failed to provide
                                                   demonstrate with substantial evidence,                  whether there are implementation and                  any evidence to demonstrate that the
                                                   that citizens would have the same                       enforcement programs in place that are                proposed monitoring requirements will
                                                   enforcement ability. Thus, according to                 sufficient to assure compliance with the              assure compliance with the NESHAP for
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                                                   the commenter, the exemptions EPA                       NESHAP without relying on title V                     the exempt sources. The commenter
                                                   proposes plainly eliminate benefits that                permits. See 70 FR 75326.                             states that, for this reason also, its claim
                                                   Congress thought necessary. The                            In applying the fourth factor here,                that title V requirements are
                                                   commenter claims that, to justify its                   EPA determined that there are adequate                ‘‘unnecessarily burdensome’’ is arbitrary
                                                   exemptions, EPA would have to show                      enforcement programs in place to assure               and capricious, and its exemption is
                                                   that the informational and enforcement                  compliance with the CAA. As stated in                 unlawful, arbitrary, and capricious.
                                                   benefits that Congress intended title V                 the proposal, we believe that state-                     Response: As noted in the earlier
                                                   to confer—benefits which the                            delegated programs are sufficient to                  comment, EPA used the four-factor test


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                                                                    Federal Register / Vol. 74, No. 231 / Thursday, December 3, 2009 / Rules and Regulations                                       63521

                                                   to determine if title V requirements                    V is a ‘‘significant burden’’ on area                 and whether that burden would be
                                                   were unnecessarily burdensome. In the                   sources further justifies its exemption               aggravated by any difficulty that the
                                                   first factor, EPA considers whether                     (74 FR 26151). According to the                       sources may have in obtaining
                                                   imposition of title V requirements                      commenter, regardless of whether EPA                  assistance from the permitting agencies.
                                                   would result in significant                             regards the burden as ‘‘significant,’’ the            See 70 FR 75324. The commenter
                                                   improvements to the compliance                          Agency may not exempt a category from                 appears to assert that the second factor
                                                   requirements that are proposed for the                  compliance with title V requirements                  must be satisfied for EPA to exempt an
                                                   area source categories. See 70 FR 75323.                unless compliance is ‘‘unnecessarily                  area source category from title V, but, as
                                                   It is in the context of this first factor that          burdensome.’’ The commenter states                    explained above, the four factors are
                                                   EPA evaluates the monitoring,                           that, regardless, EPA’s claims about the              considered in combination. We have
                                                   recordkeeping, and reporting                            alleged significance of the burden of                 concluded that the second factor, in
                                                   requirements of the proposed NESHAP                     compliance are entirely conclusory and                combination with the other factors,
                                                   to determine the extent to which those                  could be applied equally to any major                 supports an exemption for the paints
                                                   requirements are consistent with the                    or area source category. The commenter                and allied products manufacturing area
                                                   requirements of title V. See 70 FR                      also states that the Agency does not                  sources that we are exempting from
                                                   75323.                                                  show that the compliance burden is                    compliance with title V in this final
                                                      The commenter asserts that ‘‘EPA                     especially great for any of the sources it            rule.
                                                   argues that ‘the monitoring,                            proposes to exempt, and, thus, does not                  Therefore, we disagree with the
                                                   recordkeeping, and reporting                            demonstrate that the alleged burden                   commenter’s assertion that EPA’s
                                                   requirements in this proposed rule are                  necessitates treating them differently                finding (i.e., that the burden of
                                                   sufficient to assure compliance with the                from other categories by exempting                    obtaining a title V permit is significant,
                                                   requirements of the proposed rule.’ ’’ We               them from compliance with title V                     and does not equate to the required
                                                   nowhere state or imply that the only                    requirements.                                         finding that the burden is unnecessary)
                                                   monitoring, recordkeeping, and                             Response: The commenter appears to                 is misplaced. While EPA could have
                                                   reporting required for the rule is in the               take issue with the formulation of the                found that the second factor alone could
                                                   form of recordkeeping. As stated in the                 second factor of the four-factor                      justify the exemption for the sources we
                                                   proposal, we required daily, weekly,                    balancing test. Specifically, the                     are exempting in this rule, EPA found
                                                   monthly, and yearly testing of                          commenter states that EPA must                        that the other three factors also support
                                                   particulate control devices, as well as                 determine that title V compliance is                  exempting these sources from the title V
                                                   annual compliance reports and                           ‘‘unnecessarily burdensome’’ and not a                requirements because the permitting
                                                   deviation reports in addition to the                    ‘‘significant burden,’’ as expressed in               requirements are unnecessarily
                                                   recordkeeping that serves as monitoring                 the second factor of the four-factor                  burdensome for the paints and allied
                                                   for the particulate control devices. The                balancing test.                                       products manufacturing area sources we
                                                   commenter does not provide any                             As we have stated before, at proposal              are exempting.
                                                   evidence that contradicts the conclusion                we found the burden placed on these                      Comment: According to one
                                                   that the proposed monitoring,                           sources in complying with the title V                 commenter, EPA argued that
                                                   recordkeeping, and reporting                            requirements is significant when we                   compliance with title V would not yield
                                                   requirements are sufficient to assure                   applied the four-factor balancing test.               any gains in compliance with
                                                   compliance with the standards in the                    We note that the commenter, in other                  underlying requirements in the relevant
                                                   rule.                                                   parts of comments on the title V                      NESHAP (74 FR 26152). The commenter
                                                      Based on the foregoing, we considered                exemptions, argues that EPA must                      stated that EPA’s conclusory claim
                                                   whether title V monitoring,                             demonstrate that every title V                        could be made equally with respect to
                                                   recordkeeping, and reporting                            requirement is ‘‘unnecessary’’ for a                  any major or area source category.
                                                   requirements would lead to significant                  particular source category before an                  According to the commenter, the
                                                   improvements in the monitoring,                         exemption can be granted, but makes no                Agency provides no specific reasons to
                                                   recordkeeping, and reporting                            mention of the ‘‘burden’’ of those                    believe, with respect to any of the
                                                   requirements in the proposed NESHAP                     requirements on area sources; here the                categories it proposes to exempt, that
                                                   and determined that they would not. We                  commenter argues that ‘‘significant                   the additional informational,
                                                   believe that the monitoring,                            burden’’ is not appropriate for the                   monitoring, reporting, certification, and
                                                   recordkeeping, and reporting                            second factor. Notwithstanding the                    enforcement requirements that exist in
                                                   requirements in this area source rule                   commenter’s inconsistency, as                         title V, but not in this NESHAP, would
                                                   can assure compliance for those sources                 explained above, the four-factor                      not provide additional compliance
                                                   we are exempting.                                       balancing test was established in the                 benefits. The commenter also states that
                                                      For the reasons described above and                  Exemption Rule and we did not re-open                 the only basis for EPA’s claim is,
                                                   in the proposed rule, the first factor                  EPA’s interpretation of the term                      apparently, its beliefs that those
                                                   supports an exemption. Assuming, for                    ‘‘unnecessarily burdensome’’ in this                  additional requirements never confer
                                                   the sake of argument, that the first factor             rule. As explained above, we maintain                 additional compliance benefits.
                                                   alone cannot support the exemption, the                 that the Agency’s interpretation of the               According to the commenter, by
                                                   four-factor balancing test requires EPA                 term ‘‘unnecessarily burdensome,’’ as                 advancing such argument, EPA merely
                                                   to examine the factors, in combination,                 set forth in the Exemption Rule and                   seeks to elevate its own policy judgment
                                                   and determine whether the factors,                      reiterated in the proposal to this rule, is           over Congress’ decisions reflected in the
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                                                   viewed together, weigh in favor of                      reasonable.                                           CAA’s text and legislative history.
                                                   exemption. See 70 FR 75326. As                             Contrary to the commenter’s                           Response: The commenter
                                                   explained above, we determined that                     assertions, we properly analyzed the                  mischaracterizes the first and third
                                                   the factors, weighed together, support                  second factor of the four-factor                      factors of the four-factor balancing test
                                                   title V exemption for this source                       balancing test. See 70 FR 75320. Under                and takes out of context certain
                                                   category.                                               that factor, EPA considers whether title              statements in the proposed rule
                                                      Comment: One commenter believes                      V permitting would impose a significant               concerning the factors used in the
                                                   EPA argued that its own belief that title               burden on the area source categories,                 balancing test to determine if imposition


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                                                   63522            Federal Register / Vol. 74, No. 231 / Thursday, December 3, 2009 / Rules and Regulations

                                                   of title V permit requirements is                       improvements in the compliance of the                 that are generally applicable to all
                                                   unnecessarily burdensome for the                        sources with the rule.                                categories (along with some small
                                                   source categories. The commenter also                      Third, the commenter incorrectly                   business and voluntary programs). The
                                                   mischaracterizes the first factor of the                characterizes our statements in the                   commenter says that, absent a showing
                                                   four-factor balancing test with regard to               proposed rule concerning our                          by EPA that distinguishes the sources it
                                                   determining whether imposition of title                 application of the third factor. Under                proposes to exempt from other sources,
                                                   V would result in significant                           the third factor, EPA evaluates ‘‘whether             the Agency’s argument boils down to
                                                   improvements in compliance. In                          the costs of title V permitting for the               the generic and conclusory claim that it
                                                   addition, the commenter                                 area source category would be justified,              generally views title V requirements as
                                                   mischaracterizes the analysis in the                    taking into consideration any potential               unnecessary. The commenter states that,
                                                   third factor of the balancing test, which               gains in compliance likely to occur for               while this may be EPA’s view, it was
                                                   instructs EPA to take into account any                  such sources.’’ Contrary to what the                  not Congress’ view when Congress
                                                   gains in compliance that would result                   commenter alleges, EPA did not state in               enacted title V, and a general view that
                                                   from the imposition of the title V                      the proposed rule that compliance with                title V is unnecessary, does not suffice
                                                   requirements.                                           title V would not yield any gains in                  to show that title V compliance is
                                                      First, EPA nowhere states, nor does it               compliance with the underlying                        unnecessarily burdensome.
                                                   believe, that title V never confers                     requirements in the relevant NESHAP,                     Response: Contrary to the
                                                   additional compliance benefits, as the                  nor does factor three require such a                  commenters’ assertions, EPA does
                                                   commenter asserts. While EPA                            determination.Instead, consistent with                believe that title V is appropriate under
                                                   recognizes that requiring a title V permit              the third factor, we considered whether               certain circumstances; we think that
                                                   offers additional compliance options,                   the costs of title V are justified in light           exemption from title V is appropriate for
                                                   the statute provides EPA with the                       of any potential gains in compliance. In              those sources.
                                                   discretion to evaluate whether                          other words, EPA considers the costs of                  In this comment, the commenter again
                                                   compliance with title V would be                        title V permitting requirements,                      takes issue with the Agency’s test for
                                                   unnecessarily burdensome to specific                    including consideration of any                        determining whether title V is
                                                   area sources. For the sources we are                    improvement in compliance above what                  unnecessarily burdensome, as
                                                   exempting, we conclude that requiring                   the rule requires. In considering the                 developed in the Exemption Rule. Our
                                                   title V permits would be unnecessarily                  third factor, we stated, in part, that,               interpretation of the term
                                                   burdensome.                                             ‘‘[b]ecause the costs, both economic and              ‘‘unnecessarily burdensome’’ is not the
                                                      Second, the commenter                                non-economic, of compliance with title                subject of this rulemaking. In any event,
                                                   mischaracterizes the first factor by                    V are high, and the potential for gains               as explained above, we believe the
                                                   asserting that EPA must demonstrate                     in compliance is low, title V permitting              Agency’s interpretation of the term
                                                   that title V will provide no additional                 is not justified for this source category.            ‘‘unnecessarily burdensome’’ is a
                                                   compliance benefits. The first factor                   Accordingly, the third factor supports                reasonable one. To the extent the
                                                   calls for a consideration of ‘‘whether                  title V exemptions for these area source              commenter asserts that our application
                                                   title V would result in significant                     categories.’’ See 74 FR 26152.                        of the fourth factor is flawed, we
                                                   improvements to the compliance                             Most importantly, EPA considered all               disagree. The fourth factor involves a
                                                   requirements, including monitoring,                     four factors in the balancing test in                 determination as to whether there are
                                                   recordkeeping, and reporting, that are                  determining whether title V was                       implementation and enforcement
                                                   proposed for an area source category.’’                 unnecessarily burdensome on the area                  programs in place that are sufficient to
                                                   Thus, contrary to the commenter’s                       source category we are exempting from                 assure compliance with the rule without
                                                   assertion, the inquiry under the first                  title V in this final rule. The                       relying on the title V permits. In
                                                   factor is not whether title V will provide              commenter’s statements do not                         discussing the fourth factor in the
                                                   any compliance benefit, but rather                      demonstrate a flaw in EPA’s application               proposal, EPA states that, prior to
                                                   whether it will provide significant                     of the four-factor balancing test to the              delegating implementation and
                                                   improvements in compliance                              specific facts of the sources we are                  enforcement to a State, EPA must ensure
                                                   requirements.                                           exempting, nor do the comments                        that the State has programs in place to
                                                      The monitoring, recordkeeping and                    provide sufficient basis for the Agency               enforce the rule. EPA believes that these
                                                   reporting requirements in the rule are                  to reconsider its.                                    programs will be sufficient to assure
                                                   sufficient to assure compliance with the                   Comment: According to one                          compliance with the rule. EPA also
                                                   requirements of this rule for the sources               commenter, EPA argued that alternative                retains authority to enforce this
                                                   we are exempting, consistent with the                   State implementation and enforcement                  NESHAP anytime under CAA sections
                                                   goal in title V permitting. For example,                programs assure compliance with the                   112, 113, and 114. EPA also noted other
                                                   in the Notification of Compliance Status                underlying NESHAP without relying on                  factors in the proposal that together are
                                                   report, the source must certify that, if                title V permits (74 FR 26152). The                    sufficient to assure compliance with this
                                                   necessary, it has implemented                           commenter states that again, EPA’s                    area source NESHAP. The commenter
                                                   management practices and installed                      claim is entirely conclusory and generic.             argues that EPA cannot exempt any of
                                                   controls. See 40 CFR 63.11603 in the                    The commenter also states that ‘‘the                  the area sources in these categories from
                                                   final rule. The source must also submit                 Agency does not identify any aspect of                title V permitting requirements because
                                                   annual deviation reports to the                         any of the underlying NESHAP showing                  ‘‘[t]he agency does not identify any
                                                   permitting agency if there has been a                   that with respect to these specific                   aspect of any of the underlying NESHAP
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                                                   deviation in the requirements of the                    NESHAP—unlike all the other major                     showing that with respect to these
                                                   rule. See 40 CFR 63.11501 in the final                  and area source NESHAP it has issued                  specific NESHAP—unlike all the other
                                                   rule. The requirements in the final rule                without title V exemptions—title V                    major and area source NESHAP it has
                                                   provide sufficient basis to assure                      compliance is unnecessary’’ (emphasis                 issued without title V exemptions—title
                                                   compliance, and EPA does not believe                    added). Instead, according to the                     V compliance is unnecessary’’
                                                   that the title V requirements, if                       commenter, EPA merely pointed to                      (emphasis added). As an initial matter,
                                                   applicable to the sources that we are                   existing State requirements and the                   EPA cannot exempt major sources from
                                                   exempting, would offer significant                      potential for actions by States and EPA               title V permitting. 42 U.S.C. 502(a). As


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                                                                    Federal Register / Vol. 74, No. 231 / Thursday, December 3, 2009 / Rules and Regulations                                        63523

                                                   for area sources, the standard that the                 environment. According to the                         installation of control equipment, and as
                                                   commenter proposes—that EPA must                        commenter, EPA has not demonstrated                   a result of OSHA regulations. Affected
                                                   show that ‘‘title V compliance is                       that these benefits are unnecessary with              sources appear to be well-controlled,
                                                   unnecessary’’—is not consistent with                    respect to any specific source category,              and our GACT determination reflects
                                                   the standard the Agency established in                  but again, simply rests on its own                    such controls. We estimate that the only
                                                   the Exemption Rule and applied in the                   apparent belief that they are never                   impacts associated with this rule are the
                                                   proposed rule in determining if title V                 necessary. The commenter concludes                    capital and annual costs of installing
                                                   requirements are unnecessarily                          that, for the reasons given above, that               and operating a particulate control
                                                   burdensome.                                             the attempt to substitute EPA’s                       device, the capital cost of adding lids or
                                                      Furthermore, we disagree that the                    judgment for Congress’ is unlawful and                covers to process vessels, and the
                                                   basis for excluding the paints and allied               arbitrary.                                            compliance requirements (i.e.,
                                                   products manufacturing area sources we                     Response: Congress gave the                        reporting, recordkeeping, and testing).
                                                   are exempting from title V requirements                 Administrator the authority to exempt                    We estimate that 21 percent of the
                                                   is generally applicable to sources in any               area sources from compliance with title               facilities, or 460 area sources, will be
                                                   source category. As explained in the                    V if, in his or her discretion, the                   required to install particulate control
                                                   proposal preamble and above, we                         Administrator ‘‘finds that compliance                 equipment. The total capital costs for
                                                   balanced the four factors considering                   with [title V] is impracticable,                      installing particulate control devices is
                                                   the facts and circumstances of the                      infeasible, or unnecessarily                          estimated to be $8.1 million and the
                                                   source category at issue in this rule. For              burdensome.’’ See CAA section 502(a).                 annual cost is estimated to be $3.1
                                                   example, in assessing whether the costs                 EPA has interpreted one of the three                  million per year.
                                                   of requiring the sources to obtain a title              justifications for exempting area sources                We estimate that 110 facilities will be
                                                   V permit were burdensome, we                            ‘‘unnecessarily burdensome,’’ as                      required to install lids or covers on their
                                                   concluded that the high relative costs                  requiring consideration of the four                   process, mixing, and storage vessels. We
                                                   would not be justified given that there                 factors discussed above. At proposal,                 estimate that it will cost $38,000 in total
                                                   is likely to be little or no potential gain             EPA applied these four factors to the                 capital costs and $5,500 annually.
                                                   in compliance based on the control                      paints and allied products                            However, the rule will also provide a
                                                   device requirements and management                      manufacturing area source category                    cost savings to these same facilities,
                                                   practices of this rule.                                 subject to this rule, and concluded that              because they will have more coatings
                                                      Comment: One commenter states that,                  requiring title V for this area source                product at the end of the manufacturing
                                                   as EPA concedes, the legislative history                category would be unnecessarily                       process.
                                                   of the CAA shows that Congress did not                  burdensome. We maintain that this                        The other affected facilities will incur
                                                   intend EPA to exempt source categories                  conclusion is accurate for the sources                costs only for submitting the
                                                   from compliance with title V unless                     we are exempting in this rule.                        notifications and for completing the
                                                   doing so would not adversely affect                        In addition to determining that title V            annual compliance certification. The
                                                   public health, welfare, or the                          would be unnecessarily burdensome on                  cost associated with recordkeeping and
                                                   environment. Furthermore, the                           the area source category, as in the                   the one-time reporting requirements is
                                                   commenter states that EPA conceded                      Exemption Rule, EPA also considered,                  estimated to be $147 per facility.
                                                   this point. See 74 FR 26152.                            consistent with our interpretation of the                Through compliance with this rule,
                                                   Nonetheless, according to the                           legislative history, whether exempting                these facilities will reduce total PM
                                                   commenter, EPA does not make any                        the area source categories would                      emissions by 6,300 tons/yr (5,700 Mg/
                                                   showing that its exemptions would not                   adversely affect public health, welfare,
                                                                                                                                                                 yr), total metal HAP emissions by 4.2
                                                   have adverse impacts on health, welfare,                or the environment. As explained in the
                                                                                                                                                                 tons/yr (3.8 Mg/yr), and listed urban
                                                   and the environment. The commenter                      proposal preamble, we concluded that
                                                                                                                                                                 metal HAP (cadmium, chromium, lead,
                                                   says that instead, EPA offered only the                 exempting the area source category at
                                                                                                                                                                 nickel) emissions by 1.6 tons/yr (1.5
                                                   conclusory assertion that ‘‘the level of                issue in this rule would not adversely
                                                                                                                                                                 Mg/yr). We estimate that requiring the
                                                   control would remain the same,’’                        affect public health, welfare, or the
                                                                                                                                                                 use of covers on process vessels will
                                                   whether title V permits are required or                 environment because the level of
                                                                                                                                                                 reduce VOC emissions by 1,700 tons/yr
                                                   not (74 FR 26512). The commenter                        control would be the same even if title
                                                                                                                                                                 (1,600 Mg/yr), volatile HAP emissions
                                                   continues by stating that EPA relied                    V applied. We further explained in the
                                                                                                                                                                 by 169 tons/yr (153 Mg/yr), and listed
                                                   entirely on the conclusory arguments                    proposal preamble that the title V
                                                   advanced elsewhere in the proposal that                                                                       urban volatile HAP (benzene, methylene
                                                                                                           permit program does not generally
                                                   compliance with title V would not yield                                                                       chloride) emissions by 4.3 tons/yr (3.9
                                                                                                           impose new substantive air quality
                                                   additional compliance with the                                                                                Mg/yr).
                                                                                                           control requirements on sources, but
                                                   underlying NESHAP. The commenter                        instead requires that certain procedural              VII. Statutory and Executive Order
                                                   states that those arguments are wrong                   measures be followed, particularly with               Reviews
                                                   for the reasons given above, and,                       respect to determining compliance with
                                                   therefore, EPA’s claims about public                                                                          A. Executive Order 12866: Regulatory
                                                                                                           applicable requirements. The
                                                   health, welfare, and the environment are                                                                      Planning and Review
                                                                                                           commenter has not provided any
                                                   wrong too. The commenter states that                    information to demonstrate that the                     This action is a ‘‘significant regulatory
                                                   Congress enacted title V for a reason: To               exemption from title V that we are                    action’’ under the terms of Executive
                                                   assure compliance with all applicable                   finalizing will adversely affect public               Order 12866 (58 FR 51735, October 4,
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                                                   requirements and to empower citizens                    health, welfare, or the environment.                  1993), and is therefore subject to review
                                                   to get information and enforce the CAA.                                                                       under the Executive Order.
                                                   The commenter said that those                           VI. Impacts of the Final Standards
                                                   benefits—of which EPA’s proposed rule                     Existing paints and allied products                 B. Paperwork Reduction Act
                                                   deprives the public—would improve                       manufacturing facilities have made                      The information collection
                                                   compliance with the underlying                          significant emission reductions since                 requirements in this rule have been
                                                   standards and, thus, have benefits for                  1990 through product reformulation,                   submitted for approval to the Office of
                                                   public health, welfare, and the                         process and cleaning changes,                         Management and Budget (OMB) under


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                                                   63524            Federal Register / Vol. 74, No. 231 / Thursday, December 3, 2009 / Rules and Regulations

                                                   the Paperwork Reduction Act, 44 U.S.C.                  Register notice announcing this                       standards also require only the essential
                                                   3501 et seq. The information collection                 approval and displaying the OMB                       recordkeeping and reporting needed to
                                                   requirements are not enforceable until                  control number for the approved                       demonstrate and verify compliance.
                                                   OMB approves them.                                      information collection requirements                   These standards were developed in
                                                      The recordkeeping and reporting                      contained in this final rule. We will also            consultation with small business
                                                   requirements in this final rule are based               publish a technical amendment to 40                   representatives on the state and national
                                                   on the requirements in EPA’s NESHAP                     CFR part 9 in the Federal Register to                 levels and the trade associations that
                                                   General Provisions (40 CFR part 63,                     consolidate the display of the OMB                    represent small businesses.
                                                   subpart A). The recordkeeping and                       control number with other approved
                                                   reporting requirements in the General                   information collection requirements.                  D. Unfunded Mandates Reform Act
                                                   Provisions are mandatory pursuant to                                                                            This final rule does not contain a
                                                   section 114 of the CAA (42 U.S.C. 7414).                C. Regulatory Flexibility Act                         Federal mandate that may result in
                                                   All information other than emissions                       The Regulatory Flexibility Act                     expenditures of $100 million or more
                                                   data submitted to EPA pursuant to the                   generally requires an agency to prepare               for State, local, and tribal governments,
                                                   information collection requirements for                 a regulatory flexibility analysis of any              in the aggregate, or to the private sector
                                                   which a claim of confidentiality is made                rule subject to notice and comment                    in any one year. This rule is not
                                                   is safeguarded according to CAA section                 rulemaking requirements under the                     expected to impact State, local, or tribal
                                                   114(c) and the Agency’s implementing                    Administrative Procedure Act or any                   governments. The nationwide
                                                   regulations at 40 CFR part 2, subpart B.                other statute unless the agency certifies             annualized cost of this rule for affected
                                                      This final NESHAP requires Paints                    that the rule would not have a                        industrial sources is $3.1 million/yr.
                                                   and Allied Products Manufacturing area                  significant economic impact on a                      Thus, this rule would not be subject to
                                                   sources to submit an Initial Notification               substantial number of small entities.                 the requirements of sections 202 and
                                                   and a Notification of Compliance Status                 Small entities include small businesses,              205 of the Unfunded Mandates Reform
                                                   according to the requirements in 40 CFR                 small not-for-profit enterprises, and                 Act (UMRA).
                                                   63.9 of the General Provisions (subpart                 small governmental jurisdictions.                       This final rule would also not be
                                                   A). Records are required to demonstrate                    For the purposes of assessing the                  subject to the requirements of section
                                                   compliance with the opacity and visual                  impacts of this rule on small entities,               203 of UMRA because it contains no
                                                   emissions (VE) requirements. The owner                  small entity is defined as: (1) A small               regulatory requirements that might
                                                   or operator of a paints and allied                      business that meets the Small Business                significantly or uniquely affect small
                                                   products manufacturing facility also is                 Administration size standards for small               governments. The rule would not apply
                                                   subject to notification and                             businesses found at 13 CFR 121.201; (2)               to such governments and would impose
                                                   recordkeeping requirements in 40 CFR                    a small governmental jurisdiction that is             no obligations upon them.
                                                   63.9 and 63.10 of the General Provisions                a government of a city, county, town,
                                                   (subpart A), although we have deemed                    school district, or special district with a           E. Executive Order 13132: Federalism
                                                   that annual compliance reports are                      population of less than 50,000; and (3)                 This action does not have federalism
                                                   sufficient instead of semiannual reports.               a small organization that is any not-for-             implications. It will not have substantial
                                                      The annual burden for this                           profit enterprise which is independently              direct effects on the States, on the
                                                   information collection averaged over the                owned and operated and is not                         relationship between the national
                                                   first three years of this ICR is estimated              dominant in its field.                                government and the States, or on the
                                                   to be a total of 2,887 labor hours per                     After considering the economic                     distribution of power and
                                                   year at a cost of $322,009 or                           impacts of this rule on small entities, I             responsibilities among the various
                                                   approximately $147 per facility. The                    certify that this action will not have a              levels of government, as specified in
                                                   average annual reporting burden is                      significant economic impact on a                      Executive Order 13132. This rule does
                                                   almost 3 hours per response, with                       substantial number of small entities.                 not impose any requirements on State
                                                   approximately 2 responses per facility                  This rule is estimated to impact a total              and local governments. Thus, Executive
                                                   for 730 respondents. There are no                       of almost 2,200 area source paints and                Order 13132 does not apply to this final
                                                   capital and operating and maintenance                   allied products manufacturing facilities;             rule.
                                                   costs associated with the final rule                    over ninety percent of these facilities are
                                                   requirements for existing sources.                      estimated to be small entities. We have               F. Executive Order 13175: Consultation
                                                   Burden is defined at 5 CFR 1320.3(b).                   determined that small entity compliance               and Coordination With Indian Tribal
                                                      An agency may not conduct or                         costs, as assessed by the facilities’ cost-           Governments
                                                   sponsor, and a person is not required to                to-sales ratio, are expected to be                      This action does not have tribal
                                                   respond to, a collection of information                 approximately 0.13 percent for the                    implications, as specified in Executive
                                                   unless it displays a currently valid OMB                estimated 460 facilities that would not               Order 13175 (65 FR 67249, November 9,
                                                   control number. EPA displays OMB                        initially be in compliance. Although                  2000). This final rule imposes no
                                                   control numbers in various ways. For                    this final rule contains requirements for             requirements on tribal governments;
                                                   example, EPA lists OMB control                          new area sources, we are not aware of                 thus, Executive Order 13175 does not
                                                   numbers for EPA’s regulations in 40                     any new area sources being constructed                apply to this action.
                                                   CFR part 9, which we amend                              now or planned in the next 3 years, and
                                                   periodically. Additionally, we may                      consequently, we did not estimate any                 G. Executive Order 13045: Protection of
                                                   display the OMB control number in                       impacts for new sources.                              Children From Environmental Health
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                                                   another part of the CFR, or in a valid                     Although this final rule will not have             and Safety Risks
                                                   Federal Register notice, or by other                    a significant economic impact on a                      EPA interprets Executive Order 13045
                                                   appropriate means. The OMB control                      substantial number of small entities,                 (62 FR 19885, April 23, 1997) as
                                                   number display will become effective                    EPA nonetheless has tried to reduce                   applying to those regulatory actions that
                                                   the earliest of any of the methods                      such impact. The standards represent                  concern health or safety risks, such that
                                                   authorized in 40 CFR part 9.                            practices and controls that are common                the analysis required under section
                                                      When this ICR is approved by OMB,                    throughout the paints and allied                      5–501 of the Order has the potential to
                                                   the Agency will publish a Federal                       products manufacturing industry. The                  influence the regulation. This action is


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                                                                    Federal Register / Vol. 74, No. 231 / Thursday, December 3, 2009 / Rules and Regulations                                             63525

                                                   not subject to EO 13045 because it is                   executive policy on environmental                     PART 63—[AMENDED]
                                                   based solely on technology                              justice. Its main provision directs
                                                   performance.                                            federal agencies, to the greatest extent              ■ 1. The authority citation for part 63
                                                                                                           practicable and permitted by law, to                  continues to read as follows:
                                                   H. Executive Order 13211: Actions
                                                                                                           make environmental justice part of their                  Authority: 42 U.S.C. 7401 et seq.
                                                   Concerning Regulations That
                                                                                                           mission by identifying and addressing,
                                                   Significantly Affect Energy Supply,                                                                           Subpart A—[Amended]
                                                                                                           as appropriate, disproportionately high
                                                   Distribution, or Use
                                                                                                           and adverse human health or
                                                      This final rule is not a ‘‘significant                                                                     ■ 2. Part 63 is amended by adding
                                                                                                           environmental effects of their programs,
                                                   energy action’’ as defined in Executive                                                                       subpart CCCCCCC to read as follows:
                                                                                                           policies, and activities on minority
                                                   Order 13211 (66 FR 28355, May 22,                       populations and low-income                            Subpart CCCCCCC—National Emission
                                                   2001) because it is not likely to have a                populations in the United States.                     Standards for Hazardous Air Pollutants for
                                                   significant adverse effect on the supply,                 EPA has determined that this final                  Area Sources: Paints and Allied Products
                                                   distribution, or use of energy. Further,                rule would not have disproportionately                Manufacturing
                                                   we have concluded that this rule is not                 high and adverse human health or                      Applicability and Compliance Dates
                                                   likely to have any adverse energy                       environmental effects on minority or                  Sec.
                                                   effects. Existing energy requirements for               low-income populations because it                     63.11599 Am I subject to this subpart?
                                                   this industry would not be significantly                increases the level of environmental                  63.11600 What are my compliance dates?
                                                   impacted by the additional controls or                  protection for all affected populations               Standards, Monitoring, and Compliance
                                                   other equipment that may be required                    without having any disproportionately                 Requirements
                                                   by this rule.                                           high and adverse human health or
                                                                                                                                                                 63.11601 What are the standards for new
                                                                                                           environmental effects on any                              and existing paints and allied products
                                                   I. National Technology Transfer and
                                                                                                           population, including any minority or                     manufacturing facilities?
                                                   Advancement Act
                                                                                                           low-income population. This rule                      63.11602 What are the performance test and
                                                      Section 12(d) of the National                        establishes national standards for the                    compliance requirements for new and
                                                   Technology Transfer and Advancement                     Paints and Allied Products                                existing sources?
                                                   Act of 1995 (‘‘NTTAA’’), Public Law                     Manufacturing area source category; this              63.11603 What are the notification,
                                                   104–113 (15 U.S.C. 272 note) directs                    will reduce HAP emissions, therefore                      reporting, and recordkeeping
                                                   EPA to use voluntary consensus                                                                                    requirements?
                                                                                                           decreasing the amount of emissions to                 63.11604 [Reserved]
                                                   standards in its regulatory activities                  which all affected populations are
                                                   unless to do so would be inconsistent                   exposed.                                              Other Requirements and Information
                                                   with applicable law or otherwise                                                                              63.11605 What General Provisions apply to
                                                   impractical. Voluntary consensus                        K. Congressional Review Act                               this subpart?
                                                   standards are technical standards (e.g.,                  The Congressional Review Act, 5                     63.11606 Who implements and enforces
                                                   materials specifications, test methods,                 U.S.C. 801, et seq., as added by the                      this subpart?
                                                   sampling procedures, and business                       Small Business Regulatory Enforcement                 63.11607 What definitions apply to this
                                                                                                           Fairness Act of 1996, generally provides                  subpart?
                                                   practices) that are developed or adopted
                                                                                                                                                                 63.11608–63.11638 [RESERVED]
                                                   by voluntary consensus standards                        that before a rule may take effect, the
                                                   bodies. NTTAA directs EPA to provide                    agency promulgating the rule must                     Tables to Subpart CCCCCCC of Part 63
                                                   Congress, through OMB, explanations                     submit a rule report, which includes a                Table 1 to Subpart CCCCCCC of Part 63—
                                                   when the Agency decides not to use                      copy of the rule, to each House of                        Applicability of General Provisions to
                                                   available and applicable voluntary                      Congress and to the Comptroller General                   Subpart CCCCCCC
                                                   consensus standards.                                    of the United States. EPA will submit a
                                                      This rulemaking involves technical                   report containing this final rule and                 Subpart CCCCCCC—National
                                                   standards. Therefore, the Agency                        other required information to the U.S.                Emission Standards for Hazardous Air
                                                   conducted a search to identify                          Senate, the U.S. House of                             Pollutants for Area Sources: Paints
                                                   potentially applicable voluntary                        Representatives, and the Comptroller                  and Allied Products Manufacturing
                                                   consensus standards. However, we                        General of the United States prior to                 Applicability and Compliance Dates
                                                   identified no such standards, and none                  publication of this final rule in the
                                                   were brought to our attention in                        Federal Register. A major rule cannot                 § 63.11599    Am I subject to this subpart?
                                                   comments. Therefore, EPA has decided                    take effect until 60 days after it is                   (a) You are subject to this subpart if
                                                   to use EPA Method 203C and EPA                          published in the Federal Register. This               you own or operate a facility that
                                                   Method 22.                                              action is not a ‘‘major rule’’ as defined             performs paints and allied products
                                                      Under § 63.7(f) and § 63.8(f) of                     by 5 U.S.C. 804(2). This final rule will              manufacturing that is an area source of
                                                   Subpart A of the General Provisions, a                  be effective on December 3, 2009.                     hazardous air pollutant (HAP) emissions
                                                   source may apply to EPA for permission                                                                        and processes, uses, or generates
                                                   to use alternative test methods or                      List of Subjects in 40 CFR Part 63                    materials containing HAP, as defined in
                                                   alternative monitoring requirements in                    Environmental protection, Air                       § 63.11607.
                                                   place of any required testing methods,                  pollution control, Hazardous                            (b) The affected source consists of all
                                                   performance specifications, or                          substances, Reporting and                             paints and allied products
                                                   procedures in the final rule and                        recordkeeping requirements.                           manufacturing processes that process,
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                                                   amendments.                                               Dated: November 16, 2009.                           use, or generate materials containing
                                                                                                           Lisa P. Jackson,                                      HAP at the facility.
                                                   J. Executive Order 12898: Federal                                                                               (1) An affected source is existing if
                                                   Actions To Address Environmental                        Administrator.
                                                                                                                                                                 you commenced construction or
                                                   Justice in Minority Populations and                     ■  For the reasons stated in the preamble,            reconstruction of the affected source on
                                                   Low-Income Populations                                  title 40, chapter I, part 63 of the Code              or before June 1, 2009.
                                                      Executive Order 12898 (59 FR 7629,                   of Federal Regulations is amended as                    (2) An affected source is new if you
                                                   February 16, 1994) establishes federal                  follows:                                              commenced construction or


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                                                   63526             Federal Register / Vol. 74, No. 231 / Thursday, December 3, 2009 / Rules and Regulations

                                                   reconstruction of the affected source on                 cadmium, chromium, lead, or nickel to                    (1) Process and storage vessels that
                                                   or after June 1, 2009.                                   a process vessel or to the grinding and               store or process materials containing
                                                      (3) A facility becomes an affected                    milling process.                                      benzene or methylene chloride, except
                                                   source when you commence processing,                       (2) You must capture particulate                    for process vessels which are mixing
                                                   using, or generating materials                           emissions and route them to a                         vessels, must be equipped with covers
                                                   containing HAP, as defined in                            particulate control device meeting the                or lids meeting the requirements of
                                                   § 63.11607.                                              requirements of paragraph (a)(6) of this              paragraphs (b)(1)(i) through (iii) of this
                                                      (c) You are exempt from the                           section during the addition of dry                    section.
                                                   obligation to obtain a permit under 40                   pigments and solids that contain                         (i) The covers or lids can be of solid
                                                   CFR part 70 or 40 CFR part 71, provided                  compounds of cadmium, chromium,                       or flexible construction, provided they
                                                   you are not otherwise required by law                    lead, or nickel to a process vessel. This             do not warp or move around during the
                                                   to obtain a permit under 40 CFR 70.3(a)                  requirement does not apply to pigments                manufacturing process.
                                                   or 40 CFR 71.3(a). Whether you have a                    and other solids that are in paste, slurry,              (ii) The covers or lids must maintain
                                                   title V permit or not, you must continue                 or liquid form.                                       contact along at least 90-percent of the
                                                   to comply with the provisions of this                      (3) You must: (i) Capture particulate               vessel rim. The 90-percent contact
                                                   subpart.                                                 emissions and route them to a                         requirement is calculated by subtracting
                                                      (d) An affected source is no longer                   particulate control device meeting the                the length of any visible gaps from the
                                                   subject to this subpart if the facility no               requirements of paragraph (a)(6) of this              circumference of the process vessel, and
                                                   longer processes, uses, or generates                     section during the addition of dry                    dividing this number by the
                                                   materials containing HAP and does not                    pigments and solids that contain                      circumference of the process vessel. The
                                                   plan to process, use or generate                         compounds of cadmium, chromium,                       resulting ratio must not exceed 90-
                                                   materials containing HAP in the future.                  lead, or nickel to a process vessel; or               percent.
                                                      (e) The standards of this subpart do                    (ii) Add pigments and other solids                     (iii) The covers or lids must be
                                                   not apply to research and development                    that contain compounds of cadmium,                    maintained in good condition.
                                                   facilities, as defined in section 112(c)(7)              chromium, lead, or nickel only in paste,                 (2) Mixing vessels that store or
                                                   of the CAA.                                              slurry, or liquid form.                               process materials containing benzene or
                                                                                                              (4) You must: (i) Capture particulate               methylene chloride must be equipped
                                                   § 63.11600       What are my compliance                  emissions and route them to a
                                                   dates?                                                                                                         with covers that completely cover the
                                                                                                            particulate control device meeting the                vessel, except as necessary to allow for
                                                      (a) If you own or operate an existing                 requirements of paragraph (a)(6) of this              safe clearance of the mixer shaft.
                                                   affected source, you must achieve                        section during the addition of dry                       (3) All vessels that store or process
                                                   compliance with the applicable                           pigments and solids that contain                      materials containing benzene or
                                                   provisions in this subpart by December                   compounds of cadmium, chromium,                       methylene chloride must be kept
                                                   3, 2012.                                                 lead, or nickel to the grinding and                   covered at all times, except for quality
                                                      (b) If you own or operate a new                       milling process; or                                   control testing and product sampling,
                                                   affected source, you must achieve                          (ii) Add pigments and other solids                  addition of materials, material removal,
                                                   compliance with the applicable                           that contain compounds of cadmium,                    or when the vessel is empty. The vessel
                                                   provisions of this subpart by December                   chromium, lead, or nickel to the                      is empty if:
                                                   3, 2009, or upon startup of your affected                grinding and milling process only in                     (i) All materials containing benzene or
                                                   source, whichever is later.                              paste, slurry, or liquid form.                        methylene chloride have been removed
                                                      (c) If you own or operate a facility that               (5) You must: (i) Capture particulate               that can be removed using the practices
                                                   becomes an affected source in                            emissions and route them to a                         commonly employed to remove
                                                   accordance with § 63.11599(b)(3) after                   particulate control device meeting the                materials from that type of vessel, e.g.,
                                                   the applicable compliance date in                        requirements of paragraph (a)(6) of this              pouring, pumping, and aspirating; and
                                                   paragraphs (a) or (b) of this section, you               section during the grinding and milling                  (ii) No more than 2.5 centimeters (one
                                                   must achieve compliance with the                         of materials containing compounds of                  inch) depth of residue remains on the
                                                   applicable provisions of this subpart by                 cadmium, chromium, lead, or nickel;                   bottom of the vessel, or no more than 3
                                                   the date that you commence processing,                     (ii) Fully enclose the grinding and                 percent by weight of the total capacity
                                                   using, or generating materials                           milling equipment during the grinding                 of the vessel remains in the vessel.
                                                   containing HAP, as defined in                            and milling of materials containing                      (4) Leaks and spills of materials
                                                   § 63.11607.                                              compounds of cadmium, chromium,                       containing benzene or methylene
                                                   Standards, Monitoring, and                               lead, or nickel; or                                   chloride must be minimized and
                                                   Compliance Requirements                                    (iii) Ensure that the pigments and                  cleaned up as soon as practical, but no
                                                                                                            solids are in the solution during the                 longer than 1 hour from the time of
                                                   § 63.11601 What are the standards for new                grinding and milling of materials                     detection.
                                                   and existing paints and allied products                  containing compounds of cadmium,                         (5) Rags or other materials that use a
                                                   manufacturing facilities?                                chromium, lead, or nickel.                            solvent containing benzene or
                                                     (a) For each new and existing affected                   (6) The visible emissions from the                  methylene chloride for cleaning must be
                                                   source, you must comply with the                         particulate control device exhaust must               kept in a closed container. The closed
                                                   requirements in paragraphs (a)(1)                        not exceed 10-percent opacity for                     container may contain a device that
                                                   through (6) of this section. These                       particulate control devices that vent to
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                                                                                                                                                                  allows pressure relief, but does not
                                                   requirements apply at all times.                         the atmosphere. This requirement does                 allow liquid solvent to drain from the
                                                     (1) You must add the dry pigments                      not apply to particulate control devices              container.
                                                   and solids that contain compounds of                     that do not vent to the atmosphere.
                                                   cadmium, chromium, lead, or nickel                         (7) [RESERVED]                                      § 63.11602 What are the performance test
                                                   and operate a capture system that                          (b) For each new and existing affected              and compliance requirements for new and
                                                   minimizes fugitive particulate emissions                 source, you must comply with the                      existing sources?
                                                   during the addition of dry pigments and                  requirements in paragraphs (b)(1)                       (a) For each new and existing affected
                                                   solids that contain compounds of                         through (5) of this section.                          source, you must demonstrate initial


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                                                                    Federal Register / Vol. 74, No. 231 / Thursday, December 3, 2009 / Rules and Regulations                                        63527

                                                   compliance by conducting the                            you must take corrective action and                   addition of dry pigments and solids
                                                   inspection and monitoring activities in                 retest within 15 days.                                containing compounds of cadmium,
                                                   paragraph (a)(1) of this section and                       (2) Ongoing particulate control device             chromium, lead, or nickel HAP to a
                                                   ongoing compliance by conducting the                    inspections and tests. Following the                  process vessel or to the grinding and
                                                   inspection and testing activities in                    initial inspections, you must perform                 milling equipment. If the Method 203C
                                                   paragraph (a)(2) of this section.                       periodic inspections of each PM control               test runs indicates an opacity greater
                                                      (1) Initial particulate control device               device according to the requirements in               than the limitation in § 63.11601(a)(4),
                                                   inspections and tests. You must conduct                 paragraphs (a)(2)(i) or (ii) of this section.         you must comply with the requirements
                                                   an initial inspection of each particulate               You must record the results of each                   in paragraphs (a)(2)(iii)(A) through (C)
                                                   control device according to the                         inspection according to paragraph (b) of              of this section.
                                                   requirements in paragraphs (a)(1)(i)                    this section and perform corrective                     (A) You must take corrective action
                                                   through (iii) of this section and perform               action where necessary. You must also                 and retest using Method 203C within 15
                                                   a visible emissions test according to the               conduct tests according to the                        days. The Method 203C test will consist
                                                   requirements of paragraph (a)(1)(iv) of                 requirements in paragraph (a)(2)(iii) of              of three 1-minute test runs and must be
                                                   this section. You must record the results               this section and record the results                   performed during the addition of dry
                                                   of each inspection and test according to                according to paragraph (b) of this                    pigments and solids containing
                                                   paragraph (b) of this section and                       section.                                              compounds of cadmium, chromium,
                                                   perform corrective action where                            (i) You must inspect and maintain                  lead, or nickel to a process vessel or to
                                                   necessary.You must conduct each                         each wet particulate control system                   the grinding and milling equipment.
                                                   inspection no later than 180 days after                 according to the requirements in                      You must continue to take corrective
                                                   your applicable compliance date for                     paragraphs (a)(2)(i)(A) through (C) of                action and retest each 15 days until a
                                                   each control device which has been                      this section.                                         Method 203C test indicates an opacity
                                                   operated within 60 days following the                      (A) You must conduct a daily                       equal to or less than the limitation in
                                                   compliance date. For a control device                   inspection to verify the presence of                  § 63.11601(a)(6).
                                                   which has not been installed or                         water flow to the wet particulate control               (B) You must prepare a deviation
                                                   operated within 60 days following the                   system.                                               report in accordance with
                                                   compliance date, you must conduct an                       (B) You must conduct weekly visual                 § 63.11603(b)(3) for each instance in
                                                                                                           inspections of any flexible ductwork for              which the Method 203C opacity results
                                                   initial inspection prior to startup of the
                                                                                                           leaks.                                                were greater than the limitation in
                                                   control device.
                                                                                                              (C) You must conduct inspections of                § 63.11601(a)(6).
                                                      (i) For each wet particulate control                 the rigid, stationary ductwork for leaks,               (C) You must resume the visible
                                                   system, you must verify the presence of                 and the interior of the wet control                   determinations of emissions from the
                                                   water flow to the control equipment.                    system (if applicable) to determine the               particulate control device in accordance
                                                   You must also visually inspect the                      structural integrity and condition of the             with paragraph (a)(2)(iii) of this section
                                                   system ductwork and control equipment                   control equipment every 12 months.                    3 months after the previous visible
                                                   for leaks and inspect the interior of the                  (ii) You must inspect and maintain                 determination.
                                                   control equipment (if applicable) for                   each dry particulate control unit                       (b) You must record the information
                                                   structural integrity and the condition of               according to the requirements in                      specified in paragraphs (b)(1) through
                                                   the control system.                                     paragraphs (a)(2)(ii)(A) and (B) of this              (6) of this section for each inspection
                                                      (ii) For each dry particulate control                section.                                              and testing activity.
                                                   system, you must visually inspect the                      (A) You must conduct weekly visual                   (1) The date, place, and time;
                                                   system ductwork and dry particulate                     inspections of any flexible ductwork for                (2) Person conducting the activity;
                                                   control unit for leaks. You must also                   leaks.                                                  (3) Technique or method used;
                                                   inspect the inside of each dry                             (B) You must conduct inspections of                  (4) Operating conditions during the
                                                   particulate control unit for structural                 the rigid, stationary ductwork for leaks,             activity;
                                                   integrity and condition.                                and the interior of the dry particulate                 (5) Results; and
                                                      (iii) An initial inspection of the                   control unit for structural integrity and               (6) Description of correction actions
                                                   internal components of a wet or dry                                                                           taken.
                                                                                                           to determine the condition of the fabric
                                                   particulate control system is not                       filter (if applicable) every 12 months.               § 63.11603 What are the notification,
                                                   required if there is a record that an                      (iii) For each particulate control                 reporting, and recordkeeping
                                                   inspection meeting the requirements of                  device, you must conduct a 5-minute                   requirements?
                                                   this subsection has been performed                      visual determination of emissions from                   (a) Notifications. You must submit the
                                                   within the past 12 months and any                       the particulate control device every 3                notifications identified in paragraphs
                                                   maintenance actions have been                           months using Method 22 (40 CFR part                   (a)(1) and (2) of this section.
                                                   resolved.                                               60, appendix A–7). The visible emission                  (1) Initial Notification of
                                                      (iv) For each particulate control                    test must be performed during the                     Applicability. If you own or operate an
                                                   device, you must conduct a visible                      addition of dry pigments and solids                   existing affected source, you must
                                                   emission test consisting of three 1-                    containing compounds of cadmium,                      submit an initial notification of
                                                   minute test runs using Method 203C (40                  chromium, lead, or nickel to a process                applicability required by § 63.9(b)(2) no
                                                   CFR part 51, appendix M). The visible                   vessel or to the grinding and milling                 later than June 1, 2010. If you own or
                                                   emission test runs must be performed                    equipment. If visible emissions are                   operate a new affected source, you must
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                                                   during the addition of dry pigments and                 observed for two minutes of the                       submit an initial notification of
                                                   solids containing compounds of                          required 5-minute observation period,                 applicability required by § 63.9(b)(2) no
                                                   cadmium, chromium, lead, or nickel to                   you must conduct a Method 203C (40                    later than 180 days after initial start-up
                                                   a process vessel or to the grinding and                 CFR part 51, appendix M) test within 15               of the operations or June 1, 2010,
                                                   milling equipment. If the average test                  days of the time when visible emissions               whichever is later. The notification of
                                                   results of the visible emissions test runs              were observed. The Method 203C test                   applicability must include the
                                                   indicate an opacity greater than the                    will consist of three 1-minute test runs              information specified in paragraphs
                                                   applicable limitation in § 63.11601(a),                 and must be performed during the                      (a)(1)(i) through (iii) of this section.


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                                                   63528            Federal Register / Vol. 74, No. 231 / Thursday, December 3, 2009 / Rules and Regulations

                                                      (i) The name and address of the owner                   (ii) Each subsequent annual                           (4) Your records must be in a form
                                                   or operator;                                            compliance certification report must                  suitable and readily available for
                                                      (ii) The address (i.e., physical                     cover the annual reporting period from                expeditious review, according to
                                                   location) of the affected source; and                   January 1 through December 31.                        § 63.10(b)(1).
                                                      (iii) An identification of the relevant                 (iii) Each annual compliance                          (5) As specified in § 63.10(b)(1), you
                                                   standard, or other requirement, that is                 certification report must be prepared no              must keep each record for 5 years
                                                   the basis of the notification and the                   later than January 31 and kept in a                   following the date of each recorded
                                                   source’s compliance date.                               readily-accessible location for inspector             action.
                                                      (2) Notification of Compliance Status.               review. If a deviation has occurred                      (6) You must keep each record onsite
                                                   If you own or operate an existing                       during the year, each annual                          for at least 2 years after the date of each
                                                   affected source, you must submit a                      compliance certification report must be               recorded action according to
                                                   Notification of Compliance Status in                    submitted along with the deviation                    § 63.10(b)(1). You may keep the records
                                                   accordance with § 63.9(h) of the General                report, and postmarked no later than                  offsite for the remaining 3 years.
                                                   Provisions by June 3, 2013. If you own                  February 15.
                                                   or operate a new affected source, you                                                                            (e) If you no longer process, use, or
                                                                                                              (2) General Requirements. The annual               generate materials containing HAP after
                                                   must submit a Notification of                           compliance certification report must
                                                   Compliance Status within 180 days after                                                                       December 3, 2009, you must submit a
                                                                                                           contain the information specified in                  Notification in accordance with
                                                   initial start-up, or by June 1, 2010,                   paragraphs (b)(2)(i) through (iii) of this
                                                   whichever is later. If you own or operate                                                                     § 63.11599(d), which must include the
                                                                                                           section.                                              information specified in paragraphs
                                                   an affected source that becomes an
                                                                                                              (i) Company name and address;                      (e)(1) and (2) of this section.
                                                   affected source in accordance with
                                                                                                              (ii) A statement in accordance with                   (1) Your company’s name and
                                                   § 63.11599(b)(3) after the applicable
                                                                                                           § 63.9(h) of the General Provisions that              address;
                                                   compliance date in § 63.11600 (a) or (b),
                                                                                                           is signed by a responsible official with                 (2) A statement by a responsible
                                                   you must submit a Notification of
                                                                                                           that official’s name, title, phone                    official indicating that the facility no
                                                   Compliance Status within 180 days of
                                                                                                           number, e-mail address and signature,                 longer processes, uses, or generates
                                                   the date that you commence processing,
                                                                                                           certifying the truth, accuracy, and                   materials containing HAP, as defined in
                                                   using, or generating materials
                                                                                                           completeness of the notification and a                § 63.11607, and that there are no plans
                                                   containing HAP, as defined in 63.11607.
                                                                                                           statement of whether the source has                   to process, use or generate such
                                                   This Notification of Compliance Status
                                                                                                           complied with all the relevant standards              materials in the future. This statement
                                                   must include the information specified
                                                                                                           and other requirements of this subpart;               should also include the date by which
                                                   in paragraphs (a)(2)(i) and (ii) of this
                                                                                                           and                                                   the company ceased using materials
                                                   section.
                                                      (i) Your company’s name and address;                    (iii) Date of report and beginning and             containing HAP, as defined in 63.11607,
                                                      (ii) A statement by a responsible                    ending dates of the reporting period.                 and the responsible official’s name, title,
                                                   official with that official’s name, title,              The reporting period is the 12-month                  phone number, e-mail address and
                                                   phone number, e-mail address and                        period beginning on January 1 and                     signature.
                                                   signature, certifying the truth, accuracy,              ending on December 31.
                                                   and completeness of the notification, a                    (3) Deviation Report. If a deviation               § 63.11604   [Reserved]
                                                   description of the method of compliance                 has occurred during the reporting                     Other Requirements and Information
                                                   (i.e., compliance with management                       period, you must include a description
                                                   practices, installation of a wet or dry                 of deviations from the applicable                     § 63.11605 What General Provisions apply
                                                   scrubber) and a statement of whether                    requirements, the time periods during                 to this subpart?
                                                   the source has complied with all the                    which the deviations occurred, and the                  Table 1 of this subpart shows which
                                                   relevant standards and other                            corrective actions taken. This deviation              parts of the General Provisions in
                                                   requirements of this subpart.                           report must be submitted along with                   §§ 63.1 through 63.16 apply to you.
                                                      (b) Annual Compliance Certification                  your annual compliance certification
                                                                                                           report, as required by paragraph                      § 63.11606 Who implements and enforces
                                                   Report. You must prepare an annual
                                                                                                           (b)(1)(iii) of this section.                          this subpart?
                                                   compliance certification report
                                                   according to the requirements in                           (c) Records. You must maintain the                    (a) This subpart can be implemented
                                                   paragraphs (b)(1) through (b)(3) of this                records specified in paragraphs (c)(1)                and enforced by the U.S. EPA or a
                                                   section. This report does not need to be                through (4) of this section in accordance             delegated authority such as a state,
                                                   submitted unless a deviation from the                   with paragraphs (c)(5) through (7) of this            local, or tribal agency. If the U.S. EPA
                                                   requirements of this subpart has                        section, for five years after the date of             Administrator has delegated authority to
                                                   occurred. When a deviation from the                     each recorded action.                                 a State, local, or tribal agency pursuant
                                                   requirements of this subpart has                           (1) As required in § 63.10(b)(2)(xiv),             to 40 CFR part 63, subpart E, then that
                                                   occurred, the annual compliance                         you must keep a copy of each                          Agency has the authority to implement
                                                   certification report must be submitted                  notification that you submitted in                    and enforce this subpart. You should
                                                   along with the deviation report.                        accordance with paragraph (a) of this                 contact your U.S. EPA Regional Office
                                                      (1) Dates. You must prepare and, if                  section, and all documentation                        to find out if this subpart is delegated
                                                   applicable, submit each annual                          supporting any Notification of                        to your state, local, or tribal agency.
                                                   compliance certification report                         Applicability and Notification of                        (b) In delegating implementation and
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                                                   according to the dates specified in                     Compliance Status that you submitted.                 enforcement authority of this subpart to
                                                   paragraphs (b)(1)(i) through (iii) of this                 (2) You must keep a copy of each                   a state, local, or tribal agency under 40
                                                   section.                                                Annual Compliance Certification Report                CFR part 63, subpart E, the authorities
                                                      (i) The first annual compliance                      prepared in accordance with paragraph                 contained in paragraphs (b)(1) through
                                                   certification report must cover the first               (b) of this section.                                  (4) of this section are retained by the
                                                   annual reporting period which begins                       (3) You must keep records of all                   Administrator of the U.S. EPA and are
                                                   the day of the compliance date and ends                 inspections and tests as required by                  not transferred to the State, local, or
                                                   on December 31.                                         § 63.11602(b).                                        tribal agency.


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                                                                     Federal Register / Vol. 74, No. 231 / Thursday, December 3, 2009 / Rules and Regulations                                        63529

                                                     (1) Approval of an alternative                          chloride are volatile HAP. Compounds                  article that is designed and/or installed
                                                   nonopacity emissions standard under                       of cadmium, chromium, lead and/or                     for the purpose of reducing or
                                                   § 63.6(g).                                                nickel are metal HAP.                                 preventing the discharge of metal HAP
                                                     (2) Approval of a major change to test                     Paints and allied products means                   emissions to the atmosphere.
                                                   methods under § 63.7(e)(2)(ii) and (f). A                 materials such as paints, inks,                          Process vessel means any stationary or
                                                   ‘‘major change to test method’’ is                        adhesives, stains, varnishes, shellacs,               portable tank or other vessel of any
                                                   defined in § 63.90                                        putties, sealers, caulks, and other                   capacity and in which mixing, blending,
                                                     (3) Approval of a major change to                       coatings from raw materials that are                  diluting, dissolving, temporary holding,
                                                   monitoring under § 63.8(f). A ‘‘major                     intended to be applied to a substrate                 and other processing steps occur in the
                                                   change to monitoring’’ is defined in                      and consists of a mixture of resins,                  manufacturing of a coating.
                                                   § 63.90.                                                  pigments, solvents, and/or other                         Responsible official means one of the
                                                     (4) Approval of a major change to                       additives.                                            following:
                                                   recordkeeping/reporting under                                Paints and allied products                            (1) For a corporation: A president,
                                                   § 63.10(f). A ‘‘major change to                           manufacturing means the production of                 secretary, treasurer, or vice president of
                                                   recordkeeping/reporting’’ is defined in                   paints and allied products, the intended              the corporation in charge of a principal
                                                   § 63.90. As required in § 63.11432, you                   use of which is to leave a dried film of              business function, or any other person
                                                   must comply with the requirements of                      solid material on a substrate. Typically,             who performs similar policy or
                                                   the NESHAP General Provisions (40                         the manufacturing processes that                      decision-making functions for the
                                                   CFR part 63, subpart A) as shown in the                   produce these materials are described                 corporation, or a duly authorized
                                                   following table.                                          by Standard Industry Classification                   representative of such person if the
                                                                                                             (SIC) codes 285 or 289 and North                      representative is responsible for the
                                                   § 63.11607       What definitions apply to this           American Industry Classification
                                                   subpart?                                                                                                        overall operation of one or more
                                                                                                             System (NAICS) codes 3255 and 3259                    manufacturing, production, or operating
                                                      Terms used in this subpart are                         and are produced by physical means,                   facilities and either:
                                                   defined in the Clean Air Act, § 63.2, and                 such as blending and mixing, as
                                                   in this section as follows:                                                                                        (i) The facilities employ more than
                                                                                                             opposed to chemical synthesis means,                  250 persons or have gross annual sales
                                                      Construction means the onsite                          such as reactions and distillation. Paints
                                                   fabrication, erection, or installation of                                                                       or expenditures exceeding $25 million
                                                                                                             and allied products manufacturing does                (in second quarter 1980 dollars); or
                                                   an affected source. Addition of new                       not include:
                                                   equipment to an affected source does                                                                               (ii) The delegation of authority to
                                                                                                                (1) The manufacture of products that
                                                   not constitute construction, but it may                                                                         such representative is approved in
                                                                                                             do not leave a dried film of solid
                                                   constitute reconstruction of the affected                                                                       advance by the Administrator.
                                                                                                             material on the substrate, such as
                                                   source if it satisfies the definition of                                                                           (2) For a partnership or sole
                                                                                                             thinners, paint removers, brush
                                                   reconstruction in § 63.2.                                                                                       proprietorship: A general partner or the
                                                                                                             cleaners, and mold release agents;
                                                      Deviation means any instance in                           (2) The manufacture of electroplated               proprietor, respectively.
                                                   which an affected source subject to this                  and electroless metal films;                             (3) For a municipality, State, Federal,
                                                   subpart, or an owner or operator of such                     (3) The manufacture of raw materials,              or other public agency: Either a
                                                   a source:                                                 such as resins, pigments, and solvents                principal executive officer or ranking
                                                      (1) Fails to meet any requirement or                   used in the production of paints and                  elected official. For the purposes of this
                                                   management practices established by                       coatings; and                                         part, a principal executive officer of a
                                                   this subpart;                                                (4) Activities by end users of paints or           Federal agency includes the chief
                                                      (2) Fails to meet any term or condition                allied products to ready those materials              executive officer having responsibility
                                                   that is adopted to implement a                            for application.                                      for the overall operations of a principal
                                                   requirement in this subpart and that is                      Paints and allied products                         geographic unit of the agency (e.g., a
                                                   included in the operating permit for any                  manufacturing process means all the                   Regional Administrator of the EPA).
                                                   affected source required to obtain such                   equipment which collectively function                    (4) For affected sources (as defined in
                                                   a permit; or                                              to produce a paint or allied product. A               this part) applying for or subject to a
                                                      (3) Fails to meet any emissions                        process may consist of one or more unit               title V permit: ‘‘Responsible official’’
                                                   limitation or management practice in                      operations. For the purposes of this                  shall have the same meaning as defined
                                                   this subpart.                                             subpart, the manufacturing process                    in part 70 or Federal title V regulations
                                                      Dry particulate control system means                   includes any, all, or a combination of,               in this chapter (42 U.S.C. 7661),
                                                   an air pollution control device that uses                 weighing, blending, mixing, grinding,                 whichever is applicable.
                                                   filtration, impaction, or electrical forces               tinting, dilution or other formulation.                  Storage vessel means a tank, container
                                                   to remove particulate matter in the                       Cleaning operations, material storage                 or other vessel that is used to store
                                                   exhaust stream.                                           and transfer, and piping are considered               volatile liquids that contain one or more
                                                      Fabric filter means an air collection                  part of the manufacturing process. This               of the listed volatile HAP, benzene or
                                                   and control system that utilizes a bag                    definition does not cover activities by               methylene chloride, as raw material
                                                   filter to reduce the emissions of metal                   end users of paints or allied products to             feedstocks or products. It also includes
                                                   HAP and other particulate matter.                         ready those materials for application.                objects, such as rags or other containers
                                                      Material containing HAP means a                        Quality assurance and quality control                 which are stored in the vessel. The
                                                   material containing benzene, methylene                    laboratories are not considered part of a             following are not considered storage
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                                                   chloride, or compounds of cadmium,                        paints and allied products                            vessels for the purposes of this subpart:
                                                   chromium, lead, and/or nickel, in                         manufacturing process. Research and                      (1) Vessels permanently attached to
                                                   amounts greater than or equal to 0.1                      development facilities, as defined in                 motor vehicles such as trucks, railcars,
                                                   percent by weight, as shown in                            section 112(c)(7) of the CAA are not                  barges, or ships;
                                                   formulation data provided by the                          considered part of a paints and allied                   (2) Pressure vessels designed to
                                                   manufacturer or supplier, such as the                     products manufacturing process.                       operate in excess of 204.9 kilopascals
                                                   Material Safety Data Sheet for the                           Particulate matter control device                  and without emissions to the
                                                   material. Benzene and methylene                           means any equipment, device, or other                 atmosphere;


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                                                   63530                 Federal Register / Vol. 74, No. 231 / Thursday, December 3, 2009 / Rules and Regulations

                                                     (3) Vessels storing volatile liquids that                                 remove particulate matter in the exhaust                                    table that applies to you. Part 63 General
                                                   contain HAP only as impurities;                                             stream.                                                                     Provisions that apply for Paints and
                                                     (4) Wastewater storage tanks; and                                                                                                                     Allied Products Manufacturing Area
                                                                                                                               § 63.11608–63.11638                 [Reserved]
                                                     (5) Process vessels.                                                                                                                                  Sources:
                                                     Wet particulate control device means                                      Tables to Subpart CCCCCCC of Part 63
                                                   an air pollution control device that uses                                     As required in § 63.11599, you must
                                                   water or other liquid to contact and                                        meet each requirement in the following
                                                           TABLE 1 TO SUBPART CCCCCCC OF PART 63—APPLICABILITY OF GENERAL PROVISIONS TO PAINTS AND ALLIED
                                                                                     PRODUCTS MANUFACTURING AREA SOURCES
                                                                                                                                                                                                                                                               Applies to
                                                                              Citation                                                                                              Subject                                                                     subpart
                                                                                                                                                                                                                                                               CCCCCCC

                                                   63.1 .............................................................    Applicability ...................................................................................................................    Yes.
                                                   63.2 .............................................................    Definitions ......................................................................................................................   Yes.
                                                   63.3 .............................................................    Units and abbreviations ................................................................................................             Yes.
                                                   63.4 .............................................................    Prohibited activities .......................................................................................................        Yes.
                                                   63.5 .............................................................    Preconstruction review and notification requirements ..................................................                              No.
                                                   63.6(a), (b)(1)–(b)(5), (c), (e)(1), (f)(2),                          Compliance with standards and maintenance requirements ........................................                                      Yes.
                                                     (f)(3), (g), (i), (j).
                                                   63.7(a), (e), and (f) .....................................           Performance testing requirements ................................................................................                    Yes.
                                                   63.8 .............................................................    Monitoring requirements ...............................................................................................              No.
                                                   63.9(a)–(d), (i), and (j) ................................            Notification Requirements .............................................................................................              Yes.
                                                   63.10(a), (b)(1) ...........................................          Recordkeeping and Reporting ......................................................................................                   Yes.
                                                   63.10(d)(1) ..................................................        Recordkeeping and Reporting ......................................................................................                   Yes.
                                                   63.11 ...........................................................     Control device and work practice requirements ...........................................................                            No.
                                                   63.12 ...........................................................     State authority and delegations ....................................................................................                 Yes.
                                                   63.13 ...........................................................     Addresses of state air pollution control agencies and EPA regional offices ................                                          Yes.
                                                   63.14 ...........................................................     Incorporation by reference ............................................................................................              No.
                                                   63.15 ...........................................................     Availability of information and confidentiality ................................................................                     Yes.
                                                   63.16 ...........................................................     Performance track provisions .......................................................................................                 No.



                                                   [FR Doc. E9–27947 Filed 12–2–09; 8:45 am]
                                                   BILLING CODE 6560–50–P
WReier-Aviles on DSKGBLS3C1PROD with RULES2




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