[Federal Register Volume 77, Number 19 (Monday, January 30, 2012)]
[Proposed Rules]
[Pages 4522-4540]
[FR Doc No: 2012-1610]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 63

[EPA-HQ-OAR-2008-0334; FRL-9621-7]
RIN 2060-AQ89

National Emission Standards for Hazardous Air Pollutants for
Chemical Manufacturing Area Sources

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule; notice of reconsideration of final rule.

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SUMMARY: On October 29, 2009, the EPA promulgated national emission
standards for the control of hazardous air pollutants for nine area
source categories in the chemical manufacturing sector: Agricultural
Chemicals and Pesticides Manufacturing, Cyclic Crude and Intermediate
Production, Industrial Inorganic Chemical Manufacturing, Industrial
Organic Chemical Manufacturing, Inorganic Pigments Manufacturing,
Miscellaneous Organic Chemical Manufacturing, Plastic Materials and
Resins Manufacturing, Pharmaceutical Production and Synthetic Rubber
Manufacturing. Following that action, the Administrator received a
petition for reconsideration. In response to the petition, the EPA is
reconsidering and requesting comment

on several provisions of the final rule. The EPA is also proposing
certain revisions to its approach for addressing malfunctions and
taking comment on those revisions. The EPA is further soliciting
comment on the standards applicable during startup and shutdown
periods, as set forth in the final rule. Additionally, the EPA is
proposing amendments and technical corrections to the final rule to
clarify applicability and compliance issues raised by stakeholders
subject to the final rule.

DATES: Comments. Comments must be received on or before March 30, 2012.
    Public Hearing. If anyone contacts EPA requesting to speak at a
public hearing by February 9, 2012, a public hearing will be held on
February 14, 2012. For further information on the public hearing and
requests to speak, contact Ms. Janet Eck at<PHONE_NUMBER> to verify
that a hearing will be held. If a public hearing is held, it will be
held at 10 a.m. at the EPA's Environmental Research Center Auditorium,
Research Triangle Park, North Carolina, or an alternate site nearby.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2008-0334, by one of the following methods:
     www.regulations.gov: Follow the on-line instructions for
submitting comments.
     Email<EMAIL_ADDRESS>Attention Docket ID No.
EPA-HQ-OAR-2008-0334.
     Fax:<PHONE_NUMBER>, Attention Docket ID No. EPA-HQ-OAR-
2008-0334.
     Mail: U.S. Postal Service, send comments to: Air and
Radiation Docket and Information Center, Environmental Protection
Agency, Mailcode: 2822T, 1200 Pennsylvania Ave., NW., Washington, DC
20460, Attention Docket ID No. EPA-HQ-OAR-2008-0334.
     Hand Delivery: In person or by courier, deliver comments
to: EPA Docket Center (2822T), Room 3334, 1301 Constitution Ave., NW.,
Washington, DC 20004. Such deliveries are only accepted during the
Docket's normal hours of operation, and special arrangements should be
made for deliveries of boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-HQ-OAR-
2008-0334. The EPA's policy is that all comments received will be
included in the public docket without change and may be made available
online at www.regulations.gov, including any personal information
provided, unless the comment includes information claimed to be
confidential business information (CBI) or other information whose
disclosure is restricted by statute. Do not submit information that you
consider to be CBI or otherwise protected through www.regulations.gov
or email. The www.regulations.gov Web site is an ``anonymous access''
system, which means the EPA will not know your identity or contact
information unless you provide it in the body of your comment. If you
send an email comment directly to the EPA without going through
www.regulations.gov, your email address will be automatically captured
and included as part of the comment that is placed in the public docket
and made available on the Internet. If you submit an electronic
comment, the EPA recommends that you include your name and other
contact information in the body of your comment and with any disk or
CD-ROM you submit. If the EPA cannot read your comment due to technical
difficulties and cannot contact you for clarification, the EPA may not
be able to consider your comment. Electronic files should avoid the use
of special characters, any form of encryption and be free of any
defects or viruses. For additional information about the EPA's public
docket, visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.
    Docket: All documents in the docket are listed in the
www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, will be publicly available only in hard copy.
Publicly available docket materials are available either electronically
in www.regulations.gov or in hard copy at the EPA Docket Center, EPA
West Building, Room 3334, 1301 Constitution Ave., NW., Washington, DC.
The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday
through Friday, excluding legal holidays. The telephone number for the
Public Reading Room is<PHONE_NUMBER>, and the telephone number for the
Docket Center is<PHONE_NUMBER>.

FOR FURTHER INFORMATION CONTACT: Mr. Nick Parsons, Refining and
Chemicals Group (E143-01), Sector Policies and Programs Division,
Office of Air Quality Planning and Standards, Environmental Protection
Agency, Research Triangle Park, North Carolina 27711; telephone number:
(919) 541-5372; fax number:<PHONE_NUMBER>; email address:
<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:
    Organization of this Document. The following outline is provided to
aid in locating information in this preamble.

I. General Information
    A. Does this notice of reconsideration apply to me?
    B. What should I consider as I prepare my comments to the EPA?
    C. How do I obtain a copy of this document and other related
information?
II. Background Information
III. Actions We Are Taking
IV. Discussion of Issues for Reconsideration
    A. Title V Permitting Requirements
    B. Requirements When Other Rules Overlap With the Final Rule
    C. Requirement To Conduct Direct and Proximal Leak Inspections
    D. Requirement for Covers or Lids on Process Vessels
    E. Requirement To Conduct Leak Inspections When Equipment Is in
HAP Service
    F. Applicability of the Family of Materials Concept
V. Requirements During Periods of Startup, Shutdown and Malfunctions
(SSM)
VI. Requirements for Metal HAP Process Vents
    A. Definition of Metal HAP Process Vent
    B. Metal HAP Process Vent Standards
VII. Technical Corrections and Clarifications
VIII. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review and
Executive Order 13563: Improving Regulation and Regulatory Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children From
Environmental Health Risks and Safety Risks
    H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
    I. National Technology Transfer and Advancement Act
    J. Executive Order 12898: Federal Actions to Address
Environmental Justice in Minority Populations and Low-Income
Populations

    A red-line version of the regulatory language that incorporates the
changes in this action is available in the docket.

I. General Information

A. Does this notice of reconsideration apply to me?

    The regulated categories and entities potentially affected by this
action include:

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                                                NAICS
              Industry category               Code \1\               Examples of regulated entities
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Chemical Manufacturing......................       325  Chemical manufacturing area sources that use as
                                                         feedstock, generate as byproduct or produce as product,
                                                         any of the hazardous air pollutants (HAP) subject to
                                                         this subpart except for: (1) Processes classified in
                                                         NAICS Code 325222, 325314 or 325413; (2) processes
                                                         subject to standards for other listed area source
                                                         categories\2\ in NAICS Code 325; (3) certain
                                                         fabricating operations; (4) manufacture of photographic
                                                         film, paper and plate where material is coated or
                                                         contains chemicals (but the manufacture of the
                                                         photographic chemicals is regulated); and (5)
                                                         manufacture of radioactive elements or isotopes, radium
                                                         chloride, radium luminous compounds, strontium and
                                                         uranium.
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\1\ North American Industry Classification System.
\2\ The source categories in NAICS Code 325 for which other area source standards apply are: Acrylic Fibers/
  Modacrylic Fibers Production, Chemical Preparation, Carbon Black, Chemical Manufacturing: Chromium Compounds,
  Polyvinyl Chloride and Copolymers Production, Paint and Allied Coatings and Mercury Cell Chlor-Alkali
  Manufacturing.

    This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to be regulated by this
reconsideration action. To determine whether your facility may be
affected by this reconsideration action, you should examine the
applicability criteria in 40 CFR 63.11494 of subpart VVVVVV (National
Emission Standards for Hazardous Air Pollutants for Chemical
Manufacturing Area Sources). If you have any questions regarding the
applicability of the final rule to a particular entity, consult either
the air permit authority for the entity or your EPA regional
representative, as listed in 40 CFR 63.13.

B. What should I consider as I prepare my comments to the EPA?

    Submitting CBI. Do not submit information that you consider to be
CBI electronically through http://www.regulations.gov or email. Send or
deliver information identified as CBI to only the following address:
Mr. Nick Parsons, c/o OAQPS Document Control Officer (Room C404-02),
U.S. Environmental Protection Agency, Research Triangle Park, North
Carolina 27711, Attn: Docket ID No. EPA-HQ-OAR-2008-0334.
    Clearly mark the part or all of the information that you claim to
be CBI. For CBI information in a disk or CD-ROM that you mail to the
EPA, mark the outside of the disk or CD-ROM as CBI and then identify
electronically within the disk or CD-ROM the specific information that
is claimed as CBI. In addition to one complete version of the comment
that includes information claimed as CBI, a copy of the comment that
does not contain the information claimed as CBI must be submitted for
inclusion in the public docket. If you submit a disk or CD-ROM that
does not contain CBI, mark the outside of the disk or CD-ROM clearly
that it does not contain CBI. Information marked as CBI will not be
disclosed except in accordance with procedures set forth in 40 CFR part
2.
    If you have any questions about CBI or the procedures for claiming
CBI, please consult the person identified in the FOR FURTHER
INFORMATION CONTACT section.

C. How do I obtain a copy of this document and other related
information?

    Docket. The docket number for this action and the final rule (40
CFR part 63, subpart VVVVVV) is Docket ID No. EPA-HQ-OAR-2008-0334.
    World Wide Web (WWW). In addition to being available in the docket,
an electronic copy of this action is available on the WWW through the
Technology Transfer Network (TTN) Web site. Following signature, a copy
of this notice will be posted on the TTN's policy and guidance page for
newly proposed or promulgated rules at http://www.epa.gov/ttn/oarpg.
The TTN provides information and technology exchange in various areas
of air pollution control.

II. Background Information

    Section 112(d) of the Clean Air Act (CAA) requires the EPA to
establish national emission standards for hazardous air pollutants
(NESHAP) for both major and area sources of HAP that are listed for
regulation under CAA section 112(c). A major source is any stationary
source that emits or has the potential to emit 10 tons per year (tpy)
or more of any single HAP or 25 tpy or more of any combination of HAP.
An area source is a stationary source that is not a major source.
    On October 29, 2009 (74 FR 56008), the EPA issued the NESHAP for
the nine chemical manufacturing area source (CMAS) categories that were
listed pursuant to CAA sections 112(c)(3) and 112(k)(3)(B). The nine
area source categories are Agricultural Chemicals and Pesticides
Manufacturing, Cyclic Crude and Intermediate Production, Industrial
Inorganic Chemical Manufacturing, Industrial Organic Chemical
Manufacturing, Inorganic Pigments Manufacturing, Miscellaneous Organic
Chemical Manufacturing, Plastic Materials and Resins Manufacturing,
Pharmaceutical Production and Synthetic Rubber Manufacturing.
    CAA section 112(k)(3)(B) directs the EPA to identify at least 30
HAP that, as a result of emissions from area sources, pose the greatest
threat to public health in the largest number of urban areas. The EPA
implemented this provision in 1999 in the Integrated Urban Air Toxics
Strategy, (64 FR 38715, July 19, 1999) (Strategy). Specifically, in the
Strategy, the EPA identified 30 HAP that pose the greatest potential
health threat in urban areas, and these HAP are referred to as the ``30
urban HAP.'' Section 112(c)(3) of the CAA requires the EPA to list
sufficient categories or subcategories of area sources to ensure that
area sources representing 90 percent of the emissions of the 30 urban
HAP are subject to regulation. The EPA completed this requirement in
2011 (76 FR 15308, March 21, 2011). The chemical manufacturing area
source categories were listed to satisfy this requirement for 15 of the
30 urban HAP.\1\ Pursuant to CAA section 112(d)(5), the NESHAP reflect
generally available control technologies or management practices
(GACT). The NESHAP apply to each chemical manufacturing process unit
(CMPU) that uses, generates or produces any of the 15 urban HAP for
which the area source categories were listed (collectively ``chemical
manufacturing urban HAP'' or ``Table 1 HAP'').
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    \1\ The 15 urban HAP for which the chemical manufacturing area
source categories were listed are identified in table 1 of the final
rule.
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    On February 12, 2010, following promulgation of the final rule, the
EPA received a petition for reconsideration from the American Chemistry
Council (ACC) and the Society of Chemical Manufacturers & Affiliates
(SOCMA) (``Petitioners''). A copy of this petition is provided in the
docket (see Docket ID No. EPA-HQ-OAR-2008-0334). Petitioners, pursuant
to CAA section 307(d)(7)(B), requested that the EPA

reconsider six provisions in the rules: (1) The requirement that major
sources that installed air pollution controls after 1990, and, as a
result, became area sources, obtain a title V permit; (2) the
requirement that sources subject to the final rule and any overlapping
provision in another rule comply with each provision independently, or
with the most stringent requirements of each rule; (3) the requirement
that leak inspections include direct and proximal (thorough) inspection
of all areas of potential leak within the CMPU; (4) the requirement
that process vessels in HAP service be equipped with a cover or lid
that must be in place at all times when the vessel contains HAP, except
for material addition and sampling; (5) the requirement to conduct leak
inspections while the equipment is in HAP service; and (6) the
requirement that a CMPU include all equipment and processes used to
produce a ``family of materials.'' The arguments in support of these
requests are provided in the petition and described briefly below.
Petitioners also requested that the EPA stay the effectiveness of these
provisions of the rule to save many facilities from needlessly having
to file the initial notifications required by the final rule.
    On June 15, 2010, the EPA sent a letter to Petitioners informing
them that the EPA was granting the request for reconsideration on at
least one issue raised in the petition, and that the agency would
identify the specific issue or issues for which it was granting
reconsideration in the reconsideration notice that would be published
in the Federal Register. The letter also indicated that the EPA
considered the request for a stay to be moot because the due date for
initial notifications had already passed.

III. Actions We Are Taking

    In this notice, we are granting reconsideration of, and requesting
comment on, the six issues raised by Petitioners in their petition for
reconsideration. Section IV of this preamble summarizes these issues
and discusses our proposed responses to each issue.
    We are also proposing additional provisions related to malfunctions
and requesting comment on the provisions in the final rule that address
periods of startup and shutdown. We are also proposing amendments to,
and taking comment on, the standards applicable to metal HAP process
vents. Finally, we are proposing technical corrections to certain
applicability and compliance provisions in the final rule.
    We are seeking public comment only on the issues specifically
identified in this notice. We will not respond to any comments
addressing other aspects of the final rule or any other related
rulemakings.

IV. Discussion of Issues for Reconsideration

    This section of the preamble contains the EPA's basis for our
proposed responses to the issues identified in the petition for
reconsideration. We solicit comment on all proposed responses and
revisions discussed in the following sections.

A. Title V Permitting Requirements

    The EPA proposed to exempt all chemical manufacturing area sources
from the requirement to obtain a title V permit. In the final rule, in
response to comments and after a full review of the record, the EPA
stated that it was not finalizing the exemption for major sources that
became synthetic area sources by installing air pollution controls
after 1990. Among other things, the agency explained that we made the
change, in part, because we failed to consider the large number of such
sources in proposing the exemption, and because these sources had
uncontrolled emissions that made them much more like major sources. See
74 FR 56013, October 29, 2009. Petitioners maintain that the proposed
exemption of CMAS facilities from title V permitting requirements was
fully and correctly justified in the preamble to the proposed CMAS
rule. The Petitioners also claim:
     The EPA's assertion in the final rule that facilities that
installed control equipment to become synthetic area sources are
``generally larger and more sophisticated'' than other chemical
manufacturing area sources contradicts our earlier finding in the
proposed rule that many of the facilities that would be affected by the
CMAS rule are small entities without the resources to comply with
permitting requirements. The Petitioners also state that approximately
87 percent of SOCMA members and 45 percent of ACC members are small
businesses, which they cite as support for the proposed finding.
     The final rule fails to recognize that, in order for a
facility to be treated as a synthetic area source due to the
installation of controls, the facility has a legal duty to use the
equipment because the control requirement must be federally
enforceable. Further, the Petitioners state that, ``In order to have
been approved by the EPA, a state operating permit program that imposes
a federally enforceable requirement to use control equipment must
provide the public with notice and an opportunity to comment on draft
permits * * * and must also provide for emissions reporting and public
availability of reported information.''
     The final rule is contrary to the decision in Alabama
Power Co. v. EPA, which held that a source's potential to emit is
determined by its design capacity and the anticipated functioning of
the air pollution control equipment. Thus, the petitioners claim that
whether a facility is a natural area source or a synthetic area source
(due to either operational limits or the use of control devices) should
not matter for regulatory purposes.
     The EPA argued in the area source rules for asphalt
processing/asphalt roofing manufacturing, and paint and allied products
manufacturing, that state-delegated programs are sufficient to assure
compliance, and that it is not more difficult for citizens to enforce
the NESHAP absent a title V permit. According to the Petitioners, these
statements are equally, if not more, true for chemical manufacturing
synthetic area sources.
     Title V requirements will impose substantial transactional
and compliance costs on subject facilities, and limit their flexibility
to respond to market opportunities.
    In conclusion, Petitioners suggest that we should exempt all
chemical manufacturing area sources from the requirement to obtain a
title V permit consistent with the proposed rule. We reviewed our
rationale, as stated in the preamble to the final rule (74 FR 56013-
56014) and summarized below, for the final title V permitting
requirement for facilities that became synthetic area sources by virtue
of installing air pollution control devices after 1990. We continue to
believe that requiring title V for synthetic area sources that
installed controls to become area sources is appropriate; therefore, we
are not proposing to exempt such sources from the requirement to obtain
a title V permit. We are, however, making changes to the applicability
of the provision at issue. Instead of requiring a title V permit for
all synthetic area sources that installed air pollution controls in
order to become an area source, regardless of whether the controls were
installed on an affected CMPU, we are now proposing to only require a
title V permit for a synthetic area source if air pollution controls
were installed on at least one CMPU subject to the final rule in order
to become an area source. Such a limitation would be consistent with
the standards in the final rule that are applicable only to the CMPU
that emit one of the chemical manufacturing urban HAP. We are also

proposing to add provisions that inform sources when they must submit a
title V permit application consistent with the title V regulations at
40 CFR part 70 and 40 CFR part 71.
    Pursuant to section 502(a) of the CAA, the Administrator may
``exempt one or more [area] source categories (in whole or in part)
from the requirements of [title V] if the Administrator finds that
compliance with such requirements is impracticable, infeasible, or
unnecessarily burdensome * * * .'' In December 2005, in a national
rulemaking, the EPA interpreted the term ``unnecessarily burdensome''
in CAA section 502, and developed a four-factor balancing test for
determining whether title V is unnecessarily burdensome for a
particular area source category, such that an exemption from title V is
appropriate. See 70 FR 75320, December 19, 2005 (Exemption Rule). The
EPA evaluated the chemical manufacturing area source categories
pursuant to the four-factor balancing test in the proposed rule, and
determined that title V permitting was unnecessarily burdensome. 73 FR
58371-58373. However, as stated above, the EPA did not finalize the
exemption for synthetic area sources that became area sources by
installing air pollution controls after November 15, 1990, in part,
because the agency failed to consider the large number of such sources
in proposing the exemption. 74 FR 56013. We explained the reasons for
our oversight, and then concluded that title V was not unnecessarily
burdensome and provided a reasoned basis for that conclusion, as
discussed below. 74 FR 56013-56014.
    In the preamble to the final rule, we noted that the chemical
manufacturing area source categories are different from other area
source categories we have exempted because the categories include a
large number of synthetic area sources (major sources that installed
air pollution controls to become area sources) and the sources in the
other categories generally have very low emissions of HAP before
control. We then stated that at least 10 percent of the estimated 75
facilities that are synthetic area sources for HAP by virtue of
installing controls have uncontrolled HAP emissions over 100 tpy. We
also indicated that our information showed that many of the sources are
located in cities, and often in close proximity to residential and
commercial centers where large numbers of people live and work. We
further stated that these synthetic area sources have significantly
higher emissions potential when uncontrolled than the other sources in
the chemical manufacturing area source categories, and that they are
much more like the major sources of HAP subject to the Hazardous
Organic Chemical Manufacturing NESHAP (HON) and the Miscellaneous
Organic Chemical Manufacturing NESHAP (MON). For these reasons, and
other reasons set forth in the preamble to the final rule, we
determined that ``requiring additional public involvement and
compliance assurance requirements through title V is important to
ensure that these sources are maintaining their emissions at the area
source level, and, while there is some burden on the affected
facilities, we think that the burden is not significant because these
facilities are generally larger and more sophisticated than the natural
area sources and sources that took operational limits to become area
sources.'' 74 FR 56014.
    Contrary to the Petitioners' first assertion, we do not believe
that there is a conflict between our finding that many CMAS facilities
are small entities that lack the technical and financial resources to
comply with title V, and our finding that CMAS facilities that are
synthetic area sources due to the use of control devices are generally
larger and more sophisticated than other facilities covered by the
final rule. The fact that nearly all SOCMA members are small businesses
does not, by itself, counter these findings. As we stated in the
preamble to the final rule, an estimated 450 CMAS facilities have
processes that would be subject to the rule. Of those, we estimated
that 75 are synthetic area sources by virtue of add-on controls, and
only 47 of these facilities were estimated to need a new title V permit
because the remainder of the sources are already subject to title V for
other reasons. Of the 47 sources that would require a new title V
permit under the requirement in the final rule, we estimated that at
least two-thirds of these facilities are large entities. Since we do
not know whether the add-on controls at these 75 facilities are
installed on a CMPU subject to the final rule, we cannot estimate the
total number of facilities that would be required to obtain a new title
V permit under this proposed revision to the title V permit
requirement. However, we believe that it would be less than the 47
facilities that would have required a new title V permit under the
final rule requirement. Based on information from SOCMA, approximately
270 member companies are small businesses. However, it is not clear how
many of these companies have facilities that are subject to the CMAS
rule, how many of the subject facilities are synthetic area sources for
HAP emissions due to the use of control devices or how many of the
synthetic area sources for HAP emissions are subject to title V
permitting requirements for other reasons. The information provided by
Petitioner ACC is similarly vague on this issue.
    The Petitioners also argue that the title V requirement is not
appropriate because: (1) State operating permits that impose a
federally enforceable requirement must provide the public with notice
and the opportunity to comment on the draft permit; (2) synthetic area
source limits must be federally enforceable pursuant to the definition
of ``potential to emit'' at 40 CFR 63.2, and that it should not matter
whether an area source is synthetic or natural; (3) the EPA has
determined in other area source rules that state-delegated programs and
Federal enforceability of the standards is sufficient, and that
determination is equally applicable to the area sources subject to
title V in this rule; and (4) the requirement to obtain a title V
permit will impose substantial compliance costs and reduce flexibility
at the subject facilities. We are not proposing changes to the title V
permitting requirement based on these arguments because we do not
believe that they support a change in our position. First, while it is
true that the EPA regulations require Federal enforceability of
limitations on potential to emit HAP, Petitioners did not provide any
information as to the level of public participation required to obtain
such limits and whether the level of participation was as comprehensive
as that required pursuant to title V. Even if Petitioners could
demonstrate that the level of public participation was comparable to
that required under title V, our determination would not be altered on
that issue alone because title V has other important requirements that
may not apply to synthetic area sources that are not subject to title V
(e.g., the requirement to annually certify compliance with all
applicable requirements). Second, the EPA disagrees that natural and
synthetic area sources must be treated the same. As stated in the
preamble to the final rule, ``[synthetic area source] facilities are
generally larger and more sophisticated than the natural area sources
and sources that took operational limits to become area sources'' (74
FR 56014). Third, we explained in the preamble to the final rule that
the chemical manufacturing area sources are not similar to other area
source categories that we have exempted because of the

large number of synthetic area sources that installed add-on controls
and the high volume of pre-control device HAP emissions from the
chemical manufacturing area sources that added controls as compared
with other area sources. As these synthetic area sources have
essentially the same pre-control device HAP emissions potential as a
major source chemical manufacturing facility, we believe that the title
V permit requirement will help ensure that these control devices remain
in place and that these sources maintain their area source status.
Since it is possible that the non-operation, failure or
underperformance of a single control device could result in a source
within this category exceeding the major source emission threshold (10
tpy or more of any single HAP or 25 tpy or more of any combination of
HAP), we believe that the additional scrutiny that permitting
authorities place on sources with title V permits is warranted.
Finally, Petitioners have provided no information that demonstrates
that the cost of compliance for affected facilities will, in fact,
significantly burden the sources subject to the title V requirement, or
that such requirement will limit operational flexibility. We request
comments and information that address these issues, including
information and requirements that are required by state operating
permit programs, so that we can more thoroughly evaluate applicability
of title V for the identified sources.
    As stated above, we are proposing changes to the applicability of
the title V permit requirement to synthetic area sources that installed
controls. The proposed changes more clearly identify the sources
subject to title V as those that route (or have routed) emissions from
at least one process unit subject to the final rule to a control
device(s) that is required to maintain synthetic area source status at
the facility, which will likely reduce the number of sources required
to obtain a title V permit, if promulgated. Specifically, because the
standards apply only to CMPU that meet the specific applicability
criteria in the rule, we request comment on whether the title V
permitting requirement should be applicable only if one or more of the
CMPU that are subject to the final standards are controlled by the air
pollution control equipment necessary for the facility to maintain area
source status. We are also proposing to include language that informs
sources subject to title V requirements when they must submit a title V
permit application. The EPA is including these new provisions because,
on March 14, 2011, the agency issued a final rule staying the
requirement to obtain a title V permit until the final reconsideration
rule is published in the Federal Register. 76 FR 13514. Because the
stay will be lifted once the final rule is published in the Federal
Register, we determined it was necessary to include an application
deadline for those existing sources currently subject to the final rule
to avoid confusion as to when title V permit applications would be due.
The proposed application deadline for existing sources provides the
full 12 months otherwise available to sources newly subject to title V
pursuant to the EPA regulations at 40 CFR part 70 and 40 CFR part 71.
See 40 CFR 70.5(a)(1) and 40 CFR 71.5(a)(1). We also propose to include
a provision indicating the time available for new sources and existing
sources that become subject to the rule after the effective date to
submit a title V permit application.\2\ We solicit comment on these
proposed changes to the final rule.
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    \2\ Existing sources may become subject to the NESHAP for CMAS
after the effective date of the standards because the final rule
bases applicability on the use of chemical manufacturing urban HAP
(Table 1 HAP) in a CMPU. 40 CFR 63.11494. If a source begins using a
Table 1 HAP after the effective date, the facility will be subject
to the CMAS standards, and, if the source is a synthetic area source
that installed controls, the source will be subject to title V.
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    Additionally, we are soliciting comment on the promulgated final
rule requirement that required a facility to obtain a title V permit if
emissions from any process unit are (or have been) routed to the
control device(s) that is required to maintain synthetic area source
status at the facility.
    We are requesting comment with supporting rationale on the
requirement, as specified in this proposed rule and the promulgated
final rule requirement outlined above. We are also interested in
information that would allow us to better estimate the burden under the
requirement in this proposed rule and the alternative. For example, we
are interested in results of any surveys that document: (1) The
percentage and/or number of CMAS facilities that are synthetic area
sources for HAP emissions because they use federally-enforceable
control devices; (2) the percentage and/or number of such facilities
that are using the control devices to control emissions from at least
one CMAS CMPU; (3) the financial burden of obtaining a title V permit
compared to sales; and (4) the percentage and/or number of such
facilities that are not already subject to title V requirements for
other reasons. We are not taking comment on our decision in the final
rule to exempt from title V chemical manufacturing areas sources that
are natural area sources or that took operational limits to become area
sources.

B. Requirements When Other Rules Overlap With the Final Rule

    Petitioners note that their comments on the proposed rule urged the
EPA to include provisions in the final rule that would minimize the
burden associated with overlapping provisions between the CMAS rule and
other rules. Specifically, they recommended that the CMAS rule include
provisions to allow a facility subject to the CMAS rule and any other
applicable area or major source rule to opt to comply with either, and
noted that such an approach has been taken in many other rules. In
response to those comments, we added provisions to address overlapping
requirements in the final rule. See 40 CFR 63.11500. However,
Petitioners consider the overlapping rule requirements in the final
rule, which specify that a facility may elect to comply with the most
stringent provisions of the applicable rules as an alternative to
complying fully with each rule independently, to be ``unprecedented,
burdensome, and highly problematic.'' According to the Petitioners,
concerns with the alternative are that: (1) There can be uncertainty
regarding which provision is more stringent; (2) facilities will be at
risk that the EPA or a delegated authority will subsequently disagree
with the source's determination; and (3) the effort necessary to
construct a matrix of applicable requirements and determine which are
the most stringent will exceed available staff and financial resources
of many area sources. In addition, Petitioners state that complying in
every respect with two overlapping rules is bound to involve
substantial duplication, and, in some cases, may not be possible due to
conflicts between the two rules. For these reasons, Petitioners
recommend that we either propose to eliminate the final language or
request comment on it.
    We disagree with the Petitioners' assertion that the requirements
in the final rule are unprecedented and procedurally invalid. In the
absence of the language in the final rule, a facility would be required
to comply with all applicable requirements in both the CMAS rule and
all other applicable rules, regardless of whether some equipment is
subject to more than one rule. The final CMAS rule merely made explicit
the implicit requirement to comply with all applicable standards. It
was in response to Petitioners' comments that the agency provided an

overlapping requirements alternative that allows a facility to identify
and comply with only one set of requirements (i.e., the most stringent
requirements in the overlapping rules). The alternative was intended as
a means of reducing the compliance burden without diminishing the level
of environmental protection provided by each rule.
    We did not include language that defines the more stringent
requirements, as found in other rules, due to the great variety in
characteristics of CMAS processes and the wide variety of compliance
options in both the CMAS rule and overlapping rules. This variety makes
it difficult to develop language that would not inadvertently allow a
CMAS facility to comply with requirements less stringent than those
contained in 40 CFR part 63, subpart VVVVVV, or less stringent than the
required control level in an overlapping rule. Furthermore, as noted in
the economic and control cost impacts analyses (see Docket ID No. EPA-
HQ-OAR-2008-0334-0079), we expect that most CMAS facilities will be
subject to only the management practices in subpart VVVVVV. For those
sources, we anticipate that it generally will not be difficult or
burdensome to determine which requirements in subpart VVVVVV and an
overlapping rule are the most stringent. For those sources that are
unable to determine the more stringent requirement between subpart
VVVVVV and an overlapping requirement, we believe it would be more
appropriate to address those situations on a case-by-case basis.
    We are granting reconsideration of the overlapping provisions
requirement in 40 CFR 63.11500 of the final rule to allow comment on
both the language in the final rule and any alternative suggestions.
Specifically, we are interested in language that would reduce the
compliance burden for the CMAS rule and any overlapping rules combined,
yet assure that all requirements in the CMAS rule are met. We are also
interested in specific examples of requirements in overlapping rules
that conflict with requirements in the CMAS final rule.

C. Requirement To Conduct Direct and Proximal Leak Inspections

    In the final rule, the EPA revised the provision for inspections to
require that facilities conduct a ``direct and proximal (thorough)
inspection of all areas of potential leak within the CMPU.''
Petitioners object to the requirement in the final rule to conduct
``direct and proximal (thorough)'' inspections because they believe it
requires inspections without regard to safety or difficulty of access.
Petitioners also note that areas that are difficult to inspect or
unsafe to inspect or monitor are exempted from regular inspection
requirements in other rules, and they point out that, in their comments
on the proposed CMAS rule, they requested clarification that sensory
inspections may be done from a distance when equipment is either
inaccessible or unsafe for close visual inspection. Therefore,
Petitioners maintain that the agency should either propose to eliminate
the direct and proximal inspection requirement or request comment on
it.
    We have determined that the inspections required in the final rule
require control that is more stringent than GACT because we are not
aware of any facility conducting direct and proximal inspections of all
process vessels and equipment. For this reason, and to address
Petitioners' concerns, we are proposing to delete the requirement for
direct and proximal inspections. However, we want to assure that
sensory inspections be performed at distances such that the results are
meaningful.
    As a result, we are proposing that the amended rule would specify
that a facility must conduct quarterly sensory inspections of all
equipment and process vessels, provided these methods are capable of
detecting leaks within the CMPU (i.e., the inspector is within
sufficient proximity to the equipment that leaking equipment can be
detected by sight, sound or smell). We are not, however, proposing to
exempt equipment that is difficult or unsafe to monitor. Rules that
provide such exemptions do so because they require instrument
monitoring that relies on being able to locate the instrument probe
very close to the equipment being inspected (e.g., see 40 CFR part 63,
subparts TT and UU). Sensory monitoring does not require intimate
contact with each piece of equipment to be effective at identifying
leaks. In addition, due to the wide variety of design and operating
conditions throughout the source category, we also are not proposing
criteria regarding an acceptable distance for inspection or the types
of conditions under which the inspection may be conducted from a
distance. Our intent is that each facility should conduct inspections
as close as practical to the equipment to be able to detect leaks while
also following procedures contained in site-specific safety plans. The
proposed requirements would be consistent with sensory inspection
requirements in 40 CFR part 63, subpart R. We request comment on both
the direct and proximal language in the final rule and these proposed
revisions.

D. Requirement for Covers or Lids on Process Vessels

    We proposed to require process vessels in HAP service be closed
``except when operator access is necessary.'' 73 FR 58377 (proposed 40
CFR 63.11495(a)). The final rule requires process vessels in HAP
service to be equipped with a cover or lid that must be in place at all
times when the vessel contains HAP, ``except for material addition and
sampling.'' 40 CFR 63.11495(a)(1). Petitioners contend that compliance
with this management practice requirement is impossible due to safety
issues and because it does not consider the need to take material out
of a vessel or to conduct maintenance. Petitioners are particularly
concerned that the requirement does not appear to allow openings for
any type of maintenance, even after the process is shut down, and only
trace levels of HAP are present. In subsequent correspondence,
Petitioners suggest that their concerns would be resolved if we modify
the rule so that the cover or lid requirement applies only when a
process vessel is ``in use'' (which is a concept that they state can be
easily applied), and clarify that ``in use'' does not include routine
cleaning operations. See Docket ID No. EPA-HQ-OAR-2008-0334.
Petitioners explain that the exclusion for cleaning is needed because
the definition of a ``chemical manufacturing process'' includes routine
cleaning operations, but vessels must be opened for cleaning.
Therefore, the Petitioners state that we should either propose changes
that would require the use of covers or lids only when subject process
vessels are in use, or seek comments on the requirement as written in
the final rule.
    We are granting reconsideration of the requirement to use a cover
or lid on process vessels because the Petitioners comments indicate
that the requirement can be interpreted as requiring control more
stringent than we intended. The proposed rule specified that ``all
process equipment in which organic HAP is used to process material must
be covered when in use, and closure mechanisms on other openings and
access points in process equipment must be in the closed position
during operation, except when operator access is necessary.'' 73 FR
58377 (proposed 40 CFR 63.11495(a)). The intent of the requirement for
covers in the proposed rule was to ensure that processes do not operate
with open-top vessels. The purpose of the cover is to minimize

emissions from surface evaporation, but not necessarily to have a tight
seal between the cover and the vessel. For the final rule, we tried to
clarify what ``in use'' and ``operator access'' meant by specifying
that the cover (or lid) ``must be in place at all times when the vessel
contains HAP, except for material addition and sampling.'' However, as
the Petitioners have pointed out, the revised language can be
interpreted as prohibiting removal of the cover, even when only traces
of HAP remain in the vessel after it has been drained, which would
prohibit opening to perform maintenance or manual cleaning. Requiring
use of the cover in this way is not GACT, and it was not our intent.
    To address the Petitioners' issues, we are proposing to revise 40
CFR 63.11495(a)(1) in the final rule to read as follows: ``Each process
vessel must be equipped with a cover or lid that must be closed
whenever the vessel is in organic HAP service or metal HAP service,
except for manual operations that require access, such as material
addition and removal, inspection, sampling, and cleaning.'' We note
that allowing opening of a process vessel for material removal
clarifies that process vessels, such as filter presses, may be opened
in order to remove the filter cake.
    The proposed change also would exempt manual cleaning operations
from the requirement to maintain closed covers and lids while a process
vessel is in organic HAP or metal HAP service. As the Petitioners
noted, the definition of ``chemical manufacturing process'' is drawn
from the definition of a ``miscellaneous organic chemical manufacturing
process'' in 40 CFR 63.2550 of the MON. That definition includes
``routine cleaning operations,'' which are described in the preamble to
the final MON as ``cleaning conducted within enclosed equipment between
batches or between campaigns.'' The MON preamble goes on to state that
these operations ``often consist of conducting solvent rinses through
the equipment,'' and emissions are characterized as part of the
emissions from a batch process vent. See 68 FR 63860, November 10,
2003. Contrary to Petitioner's assertion, this type of cleaning was
included as part of the process specifically because we considered the
vessels to be ``in use'' while it is conducted. We also consider
vessels to be in use when manual cleaning is performed. To clarify this
point, we are proposing to revise the definition of ``chemical
manufacturing process'' to specify that all cleaning activities are
part of the process. However, because GACT does not include the use of
closed covers and lids when performing manual cleaning, we are
proposing two additional changes. First, we are proposing the change
noted above to exempt manual cleaning operations from the requirement
to maintain covers and lids in the closed position when the vessel is
in organic HAP service or metal HAP service. Second, we are proposing
to revise the definition of ``in organic HAP service'' to specify that
a process vessel is no longer in organic HAP service after the vessel
has been emptied to the extent practicable (i.e., a vessel with liquid
left on process vessel walls or as bottom clingage, but not in pools,
due to floor irregularity, is considered completely empty), and any
cleaning has been completed. We expect emissions to be minimal during
manual cleaning operations and when a process vessel is no longer in
organic HAP service. We are not proposing any changes to 40 CFR
63.11494(a)(1) regarding maintenance activities because those
activities would be conducted after the vessel has been drained (and
possibly cleaned) and the vessel would no longer be in organic HAP
service.
    We request comments on both the provisions, as specified in the
final rule and the proposed changes. Specifically, we request comment
on whether the proposed changes effectively address the issues raised
by Petitioners, and clarify the requirements without introducing
unintended consequences. We also request comment on whether a change
like that proposed for the definition of ``in organic HAP service'' is
needed for the definition of ``in metal HAP service.'' In particular,
we request comment on whether a change is needed to address when
vessels that contain metal HAP in the form of particulate are in use,
and, if so, we request information on the types of vessels for which
the change is needed and recommendations on how the language in the
definition could be structured. We are also requesting comment on
possible changes to the requirements for cleaning that would include
requirements for manual cleaning as well as for automated rinses
through closed equipment.

E. Requirement To Conduct Leak Inspections When Equipment Is in HAP
Service

    Petitioners state that ``the final rule can be read to imply that
the equipment must be in HAP service when the inspection is
conducted.'' Petitioners note that this is in contrast to the proposed
rule, which would have required quarterly inspections without
specifying any other conditions. Petitioners stated that they did not
comment on the proposed language because they considered it to be
reasonable; however, Petitioners contend that the apparent requirement
in the final rule is problematic because batch processors who operate
equipment in HAP service for short periods of time and have limited
operating personnel may find it difficult to accomplish the required
inspections during these narrow windows of time. Petitioners ask for
clarification about whether this interpretation is correct, and, if it
is, Petitioners state that we should either propose reverting to the
proposed language, or propose language allowing quarterly leak
detection and repair inspections when the equipment is in volatile
organic compound (VOC) service, not just HAP service.
    Based on our review of this issue, we are proposing some editorial
changes to 40 CFR 63.11495(a)(3) of the final rule to make the rule
easier to read and understand. These changes are described in Section
VII of this preamble. However, we decided not to propose changes as
suggested by the Petitioners because we have several concerns regarding
how inspections can be conducted effectively when the process is not
operating in HAP service. We request comment on both the specific
concerns described below, as well as all other aspects of the
requirements in the final rule related to the timing of inspections.
First, because the configuration of process vessels and equipment
likely changes from one CMPU to the next, we request comment on how
sources would track which vessels and equipment to inspect in VOC
service if we adopted Petitioners' approach and whether this effort
would negate any advantages of having flexibility to inspect at times
other than when the subject CMPU is operating in organic HAP service.
Second, process vessels are generally opened and cleaned when
reconfiguring to create a different CMPU, and equipment connections are
also often opened. Therefore, we also request comment discussing how
inspections in VOC service for a different configuration would provide
information that is relevant to determining whether there are leaks
from the subject CMPU. Finally, if someone elects to conduct Method 21
monitoring rather than sensory inspections, the instrument reading
obtained would be related to the concentration of organic compound in
the fluid and the response factor of the instrument for that organic
compound. Thus, we request comment on the need to specify criteria for
the type of fluid

that may be used when conducting inspections of vessels and equipment
in VOC service (e.g., that the VOC concentration must be no less than
the total organic compound concentration in the subject CMPU when in
organic HAP service). We will consider adopting the Petitioners'
approach after reconsideration if we can adequately address these
issues.

F. Applicability of the Family of Materials Concept

    After proposal, the rule was revised in response to comments from
Petitioners and others that argued applicability should be established
on a CMPU basis instead of facility-wide basis. Petitioners
specifically suggested that the EPA adopt the CMPU construct. We
defined the CMPU in the final rule to include ``all process vessels,
equipment, and activities necessary to operate a chemical manufacturing
process that produces a material or family of materials * * *. A CMPU
consists of one or more unit operations and any associated recovery
device.'' 40 CFR 63.11494(b). In adopting the CMPU construct, we
determined that, to adequately characterize the CMPU, the applicability
of the rule should extend to the ``family of materials'' because the
CMPU concept is derived from the MON, and production of a family of
materials is part of a single process unit in the MON. Furthermore, as
in the MON, the CMAS rule specifies mass emission thresholds above
which more stringent control of batch process vents is required.
Petitioners state that it can be difficult under the CMAS rule to
determine what constitutes a family of materials. Petitioners believe
that the term ``family of materials'' effectively expands the scope of
a CMPU to include equipment that is not part of a process that uses or
produces Table 1 HAP. Petitioners contend that there is no policy
justification for applying the CMAS rule this broadly. Therefore,
Petitioners request that the EPA interpret the ``family of materials''
term in such a way as to avoid regulating equipment that is not used to
process a Table 1 HAP. Alternatively, Petitioners suggest that the EPA
propose eliminating the phrase ``or a family of materials'' from the
rule.
    The definition of ``family of materials'' in the MON, and
referenced in 40 CFR 63.11502 of the CMAS final rule, is as follows:

    Family of materials means a grouping of materials with the same
basic composition or the same basic end use or functionality
produced using the same basic feedstocks with essentially identical
HAP emission profiles (primary constituent and relative magnitude on
a pound per pound basis) and manufacturing equipment configuration.
Examples of families of materials include multiple grades of the
same product or different variations of a product (e.g., blue, black
and red resins).
    As in the MON, the intent of the family of materials concept in 40
CFR part 63, subpart VVVVVV is to ensure that sources will not be able
to improperly avoid installation of add-on controls for batch process
vent emissions by creating separate CMPU for production of essentially
the same products (i.e., products produced from the same basic raw
materials, with essentially identical HAP emissions, and using the same
configuration of manufacturing equipment). For example, a series of
polymer products that differ only in molecular weight or the type of
non-HAP additive are considered a family of materials when the same
primary raw materials are used, the same types of HAP are emitted and
the same configuration of production equipment is used. However,
because the definition of family of materials in the final rule uses
the term ``essentially'' identical HAP emission profiles, a family of
materials potentially could include some products whose production does
not involve Table 1 HAP. Therefore, to clarify the requirements, we are
proposing to revise the definition of family of materials to state that
only those products whose production involves emission of the same
Table 1 HAP are to be considered part of a family of materials.
    We also want to clarify the family of materials concept as it
relates to production of isolated intermediates. A chemical
manufacturing process is defined, in part, as ``all equipment which
collectively functions to produce a product or isolated intermediate.''
An isolated intermediate is defined, in part, as ``a product of a
process that is stored before subsequent processing.'' (As discussed in
section VII of this preamble, we are proposing to add a definition of
``isolated intermediate'' that is consistent with the definition in the
MON.) Even if an isolated intermediate and final product are produced
using the same manufacturing equipment configuration and have the same
Table 1 HAP emissions, they generally cannot be part of a family of
materials because the definition specifies production of all products
in the family must involve the same basic feedstocks. This condition
would not be met if an isolated intermediate is used as a feedstock in
later production of a final product. Furthermore, the definition of
family of materials specified that all products in the family must have
the same basic composition, end use, or functionality. This condition
also would not be met in a situation where the isolated intermediate is
transformed in the process to produce the final product.
    We are requesting comment on all aspects of the family of materials
concept, including the proposed change. We are particularly interested
in descriptions of situations where someone thinks it would apply, but
should not, and we request suggestions for additional changes that
would make it easier to understand, apply and enforce. We are not,
however, accepting comments on the use of the CMPU as the basis for
determining applicability of the CMAS final rule.

V. Requirements During Periods of Startup, Shutdown and Malfunction
(SSM)

    During the comment period of the proposed rule, the United States
Court of Appeals for the District of Columbia Circuit vacated two
provisions in the EPA's CAA section 112 regulations governing the
emissions of HAP during periods of startup, shutdown and malfunction
(SSM). Sierra Club v. EPA, 551 F.3d 1019 (D.C. Cir. 2008), cert.
denied, 130 S. Ct. 1735 (U.S. 2010). Specifically, the Court vacated
the SSM exemption contained in 40 CFR 63.6(f)(1) and 40 CFR 63.6(h)(1),
that are part of a regulation, commonly referred to as the ``General
Provisions Rule,'' that the EPA promulgated under section 112 of the
CAA. When incorporated into CAA section 112(d) regulations for specific
source categories, the exemption in these two provisions exempts
sources from the requirement to comply with the otherwise applicable
CAA section 112(d) emission standard during periods of SSM.
    The proposed CMAS rule contained references to the vacated
provisions. Because the provisions were vacated, we removed the
references in the final rule, and, in their place, we included
alternative standards for startup and shutdown periods for continuous
process vents. Table 3 to 40 CFR part 63, subpart VVVVVV. For batch
process vents, we determined that startup and shutdown periods were
already accounted for in the existing standard, and we determined that
the remaining equipment did not have periods of startup and shutdown.
74 FR 56013. We declined to establish a different standard for
malfunctions, as suggested by commenters. 74 FR 56033.
    Further, as explained in the preamble to the final rule (74 FR
56033), periods of startup, normal operations and shutdown are all
predictable and

routine aspects of a source's operations. However, by contrast,
malfunction is defined as a ``sudden, infrequent, and not reasonably
preventable failure of air pollution control and monitoring equipment,
process equipment or a process to operate in a normal or usual manner *
* *'' (40 CFR 63.2). Nothing in CAA section 112(d) or in case law
requires that the EPA anticipate and account for the innumerable types
of potential malfunction events in setting emission standards. See
Weyerhaeuser v. Costle, 590 F.2d 1011, 1058 (D.C. Cir. 1978) (``In the
nature of things, no general limit, individual permit, or even any
upset provision can anticipate all upset situations. After a certain
point, the transgression of regulatory limits caused by `uncontrollable
acts of third parties,' such as strikes, sabotage, operator
intoxication or insanity, and a variety of other eventualities, must be
a matter for the administrative exercise of case-by-case enforcement
discretion, not for specification in advance by regulation.'').
Further, it is reasonable to interpret CAA section 112(d) as not
requiring the EPA to account for malfunctions in setting emissions
standards.
    We believe it would be impracticable to take malfunctions into
account in setting CAA section 112(d) standards for chemical
manufacturing area sources. As noted above, by definition, malfunctions
are sudden and unexpected events, and it would be difficult to set a
standard that takes into account the myriad different types of
malfunctions that can occur across all sources in the categories.
Moreover, malfunctions can vary in frequency, degree and duration,
further complicating standard setting. See, e.g., Sierra Club v. EPA,
167 F.3d 658, 662 (D.C. Cir. 1999) (the EPA typically has wide latitude
in determining the extent of data-gathering necessary to solve a
problem. We generally defer to an agency's decision to proceed on the
basis of imperfect scientific information, rather than to ``invest the
resources to conduct the perfect study.'').
    In the event that a source fails to comply with the applicable CAA
section 112(d) standards as a result of a malfunction event, the EPA
would determine an appropriate response based on, among other things,
the good faith efforts of the source to minimize emissions during
malfunction periods, including preventative and corrective actions, as
well as root cause analyses to ascertain and rectify excess emissions.
The EPA would also consider whether the source's failure to comply with
the CAA section 112(d) standard was, in fact, ``sudden, infrequent, not
reasonably preventable'' and was not instead ``caused in part by poor
maintenance or careless operation.'' 40 CFR 63.2 (definition of
malfunction).
    Finally, the EPA recognizes that even equipment that is properly
designed and maintained can sometimes fail, and that such failure can
sometimes cause an exceedance of the relevant emission standard or
other violation. (See, e.g., State Implementation Plans: Policy
Regarding Excessive Emissions During Malfunctions, Startup, and
Shutdown (Sept. 20, 1999); Policy on Excess Emissions During Startup,
Shutdown, Maintenance, and Malfunctions (Feb. 15, 1983)). The EPA is,
therefore, proposing to add to the final rule an affirmative defense to
civil penalties for exceedances of emission limits or other violations
of applicable standards that are caused by malfunctions. See 40 CFR
63.11502 (defining ``affirmative defense'' to mean, in the context of
an enforcement proceeding, a response or defense put forward by a
defendant, regarding which the defendant has the burden of proof, and
the merits of which are independently and objectively evaluated in a
judicial or administrative proceeding). We also are proposing
regulatory provisions to specify the elements that are necessary to
establish this affirmative defense; the source must prove by a
preponderance of the evidence that it has met all of the elements set
forth in 40 CFR 63.11501(e). See 40 CFR 22.24. The criteria ensure that
the affirmative defense is available only where the event that causes
an exceedance of the emission limit meets the narrow definition of
malfunction in 40 CFR 63.2 (sudden, infrequent, not reasonable
preventable and not caused by poor maintenance and or careless
operation). For example, to successfully assert the affirmative
defense, the source must prove by a preponderance of the evidence that
excess emissions ``[w]ere caused by a sudden, infrequent, and
unavoidable failure of air pollution control and monitoring equipment,
process equipment, or a process to operate in a normal or usual manner
* * *.'' The criteria also are designed to ensure that steps are taken
to correct the malfunction, to minimize emissions in accordance with
CAA section 63.11501(e), and to prevent future malfunctions. For
example, the source must prove by a preponderance of the evidence that
``[r]epairs were made as expeditiously as possible when the applicable
emission limitations were being exceeded * * *'' and that ``[a]ll
possible steps were taken to minimize the impact of the excess
emissions on ambient air quality, the environment and human health * *
*.'' In any judicial or administrative proceeding, the Administrator
may challenge the assertion of the affirmative defense, and, if the
respondent has not met its burden of proving all of the requirements in
the affirmative defense, appropriate penalties may be assessed in
accordance with section 113 of the CAA (see also 40 CFR 22.77).
    The EPA included an affirmative defense in the final rule in an
attempt to balance a tension, inherent in many types of air regulation,
to ensure adequate compliance while simultaneously recognizing that
despite the most diligent of efforts, emission limits may be exceeded
under circumstances beyond the control of the source. The EPA must
establish emission standards that ``limit the quantity, rate, or
concentration of emissions of air pollutants on a continuous basis.''
42 U.S.C. 7602(k) (defining ``emission limitation and emission
standard''). See, e.g., Sierra Club v. EPA, 551 F.3d 1019, 1021 (DC
Cir. 2008). Thus, the EPA is required to ensure that section 112
emissions limitations are continuous. The affirmative defense for
malfunction events meets this requirement by ensuring that even where
there is a malfunction, the emission limitation is still enforceable
through injunctive relief. While ``continuous'' limitations, on the one
hand, are required, there is also case law indicating that, in many
situations, it is appropriate for the EPA to account for the practical
realities of technology. For example, in Essex Chemical v. Ruckelshaus,
486 F.2d 427, 433 (DC Cir. 1973), the District of Columbia Circuit
Court acknowledged that, in setting standards under CAA section 111
``variant provisions'' such as provisions allowing for upsets during
startup, shutdown and equipment malfunction ``appear necessary to
preserve the reasonableness of the standards as a whole and that the
record does not support the `never to be exceeded' standard currently
in force.'' See also, Portland Cement Association v. Ruckelshaus, 486
F.2d 375 (DC Cir. 1973). Though intervening case law such as Sierra
Club v. EPA and the CAA 1977 amendments undermine the relevance of
these cases today, they support the EPA's view that a system that
incorporates some level of flexibility is reasonable. The affirmative
defense simply provides for a defense to civil penalties for excess
emissions that are proven to be beyond the control of the source. By
incorporating an

affirmative defense, the EPA has formalized its approach to upset
events. In a Clean Water Act setting, the Ninth Circuit required this
type of formalized approach when regulating ``upsets beyond the control
of the permit holder.'' Marathon Oil Co. v. EPA, 564 F.2d 1253, 1272-73
(9th Cir. 1977). But see, Weyerhaeuser Co. v. Costle, 590 F.2d 1011,
1057-58 (DC Cir. 1978) (holding that an informal approach is adequate).
The affirmative defense provisions give the EPA the flexibility to both
ensure that its emission limitations are ``continuous'' as required by
42 U.S.C. 7602(k), and account for unplanned upsets and thus support
the reasonableness of the standard as a whole.
    The EPA has attempted to ensure that we have not incorporated into
proposed regulatory language any provisions that are inappropriate,
unnecessary, or redundant in the absence of the SSM exemption. We are
specifically seeking comment on whether there are any such provisions
that we have inadvertently incorporated or overlooked. We are also
seeking comment on the inclusion of the affirmative defense provisions.
Finally, we solicit comment on provisions in the final rule applicable
to startup and shutdown periods for continuous and batch process vents.
    In addition to the affirmative defense provisions described above,
we are also proposing several changes throughout the rule and in Table
9 (the table that specifies applicability of General Provisions to
subpart VVVVVV of 40 CFR part 63) to specify applicable requirements
during periods of startup and shutdown and periods of malfunction. For
example, we are proposing to add new paragraphs in 40 CFR
63.11501(c)(1)(vii) and (viii) that would require records of the
occurrence and duration of malfunctions, as well as records of actions
taken to minimize emissions during these periods and to fix
malfunctioning equipment. We are also proposing to add a paragraph in
40 CFR 63.11501(d)(8) that would require reporting of information
related to each malfunction. Table 9 in the final rule states that
63.6(e)(1)(i) does not apply to subpart VVVVVV. We are also proposing
to add a new paragraph in 40 CFR 63.11495(d) that specifies the general
duty to minimize emissions applies at all times. In addition to the
proposed changes in the text of the rule, entries for 40 CFR
63.6(e)(1)(i), 63.10(b)(2) and 63.10(d)(5) also would be changed to
reference the new paragraphs in 40 CFR 63.11495(d), 63.11501(c) and
63.11501(d). Finally, we are proposing to revise Table 9 to state that
the performance testing requirements in 40 CFR 63.7(e)(1) do not apply.
The comments to Table 9 for that provision identify the location of the
applicable performance testing requirements for CMAS sources.

VI. Requirements for Metal HAP Process Vents

A. Definition of Metal HAP Process Vent

    A metal HAP process vent is defined in the final rule as ``the
point of discharge to the atmosphere (or inlet to a control device, if
any) of a metal HAP-containing gas stream from any CMPU at an affected
source.'' We are requesting comment on the applicability of this
definition to all types of equipment from which metal HAP are emitted.
We are particularly interested in comments on how well it applies to
chemical manufacturing processes in comparison to the definitions for
batch and continuous process vents, which have been used in HON, MON
and several other MACT standards for chemical manufacturing.

B. Metal HAP Process Vent Standards

    Since promulgation, we determined that the final rule does not
clearly explain how the rule applies when the Table 1 metal HAP are
emitted as a gaseous organo-metallic compound along with other organic
compounds that are routed to an incinerator for control. To clarify our
intent, the following discussion summarizes the requirements in the
final rule for all types of metal HAP compounds, including organo-
metallic compounds. It also identifies potential limitations in these
requirements and requests information to enable better characterization
of affected CMPU.
    Table 4 to 40 CFR part 63, subpart VVVVVV specifies that an owner
or operator of an affected CMPU with metal HAP emissions equal to or
greater than 400 pounds per year (lb/yr) must reduce the metal HAP
emissions by at least 95 percent. The emission limit specified in Table
4 to subpart VVVVVV does not differentiate between compounds that are
emitted as particulate and compounds that are emitted as vapor or as
liquid droplets, or between organic and inorganic compounds. All Table
1 metal HAP compounds in all phases are subject. Thus, in the case of a
CMPU that uses an organo-metallic Table 1 metal HAP compound, both the
400 lb/yr threshold and 95-percent emission limit apply. Although
combustion would change the type of Table 1 metal HAP compound(s)
emitted, it would not destroy the metal itself and likely would not
reduce the mass by 95 percent. Thus, if the uncontrolled metal HAP
emissions are greater than 400 lb/yr, additional control of the metal
HAP would be required either upstream or downstream of the incinerator.
    To demonstrate initial compliance, the owner or operator must
conduct either a performance test or an engineering assessment (except
new sources using a baghouse as a control device are required to
conduct a performance test). If the owner or operator elects to conduct
a performance test for a CMPU from which the metal HAP are emitted as a
vapor, then the test must be conducted using Method 29 because the
other specified alternative, Method 5, is not applicable. To
demonstrate ongoing compliance, the owner or operator must develop and
operate in accordance with a site-specific monitoring plan. This
requirement applies for any type of control device used to control
metal HAP emissions.
    Although the metal HAP requirements apply to all Table 1 metal HAP
as described above, the 400 lb/yr threshold was developed, primarily,
based on information from CMPU where the metal HAP is emitted as
particulate. In general, these facilities processed ores and/or
manufactured solid materials such as pigments, catalysts or manganese
dioxide. Some metal HAP at certain steps in some processes are liquids
or dissolved in solvents, but these metal HAP compounds typically have
very low vapor pressures and emissions; the bulk of the metal HAP
emissions are particulates from operations such as grinding, mixing,
calcining, drying and packaging. In addition, the control cost impacts
were developed assuming the metal HAP are emitted in the form of
particulate (See Docket ID No. EPA-HQ-OAR-2008-0334-0005). Therefore,
we are requesting comment on whether there are reasons GACT for
processes that emit gaseous Table 1 metal HAP should be different from
GACT, as specified in the final rule. We are particularly interested in
information on the types of processes that emit gaseous Table 1 metal
HAP, the range in uncontrolled emissions from such processes, the types
of emission points (i.e., are these emission points consistent with the
definition of ``metal HAP process vent''), the types of control devices
used to control such emissions and whether those processes also emit
particulate metal HAP.

VII. Technical Corrections and Clarifications

    We are proposing several technical corrections. These amendments
are

being proposed to correct inaccuracies and oversights that were
promulgated in the final rule. These proposed changes are described in
Table 1 of this preamble. We request comment on all of these proposed
changes.

 Table 1--Miscellaneous Technical Corrections to 40 CFR Part 63, Subpart
                                 VVVVVV
------------------------------------------------------------------------
  Section of subpart VVVVVV            Description of correction
------------------------------------------------------------------------
40 CFR 63.11494(a)(3)........  We are proposing several changes to this
                                paragraph. First, we are proposing to
                                clarify that the 0.1-percent and 1.0-
                                percent concentration thresholds are on
                                a mass basis of the compound containing
                                the Table 1 HAP. Second, we are
                                proposing to clarify that all Table 1
                                HAP, except for quinoline and manganese
                                compounds, are considered carcinogenic,
                                probably carcinogenic or possibly
                                carcinogenic. Therefore, the
                                concentration threshold of 1.0 weight
                                percent applies only to quinoline and
                                manganese compounds, and the threshold
                                of 0.1 weight percent applies to all
                                other Table 1 HAP. Third, because it is
                                not clear under the final rule whether
                                an emission stream that contains a Table
                                1 HAP as a gaseous byproduct is a
                                ``process fluid,'' we are proposing
                                changes to clarify applicability of CMPU
                                that generate a Table 1 HAP byproduct.
                                If Table 1 HAP are generated as
                                byproduct, the proposed changes clarify
                                that the CMPU is subject to the rule if
                                the concentration of the Table 1 HAP in
                                any liquid stream in the CMPU exceeds
                                the same thresholds that apply to
                                feedstocks. Specifically, if quinoline
                                is generated as a byproduct, then the
                                CMPU is subject if the quinoline
                                concentration in any liquid stream in
                                the CMPU exceeds 1.0 percent by weight.
                                Similarly, if hydrazine or any other
                                organic Table 1 HAP is generated as a
                                byproduct, then the process is subject
                                if the collective concentration of these
                                compounds in any liquid stream is
                                greater than 0.1 percent by weight. In
                                addition, the proposed changes also
                                specify that a CMPU is subject if the
                                collective concentration of these Table
                                1 HAP exceeds 50 parts per million by
                                volume in any process vent stream. This
                                threshold was specified because this
                                concentration defines a process vent,
                                and such emissions streams are subject
                                to control. Finally, we are proposing to
                                consolidate paragraphs (a)(1) and (3) to
                                eliminate redundancy.
40 CFR 63.11494(c)(1)(vii)...  We are proposing to add a new paragraph
                                that would list lead oxide production at
                                lead acid battery manufacturing
                                facilities in those operations for which
                                this subpart does not apply. These
                                sources are covered by 40 CFR part 63,
                                subpart PPPPPP--NESHAP for Lead Acid
                                Battery Manufacturing Area Sources.
40 CFR 63.11494(d)...........  We are proposing to clarify that a CMPU
                                using only Table 1 metal HAP is not
                                subject to any requirements for
                                wastewater systems or heat exchange
                                systems. Only organic HAP are subject to
                                wastewater and heat exchange system
                                requirements. We are proposing this
                                change based on the fact that most metal
                                HAP compounds have a very low vapor
                                pressure and would not volatilize from
                                wastewater or cooling water. However,
                                given our discussion of organo-metallic
                                compounds in section VI.B of this
                                preamble, we are also requesting comment
                                on whether this change should be limited
                                to only certain types or classes of
                                metal HAP compounds for wastewater
                                systems, heat exchange systems or both
                                types of systems.
40 CFR 63.11495(a)(3)........  To clarify and improve the readability of
                                this section, we are proposing to split
                                it into an introductory section with
                                five subsections. One sentence that
                                contains two concepts also would be
                                split into two separate sentences. The
                                requirements, however, have not changed.
40 CFR 63.11496(f)(3)(i)(C)..  We are proposing to edit this paragraph
                                to add the acronym ``CMS.''
40 CFR 63.11496(f)(3)(ii)....  We are proposing to edit the first
                                sentence in this paragraph to remove the
                                unnecessary word ``report.''
40 CFR 63.11496(f)(3)(ii)....  To demonstrate initial compliance with
                                the emissions limit for HAP metals, 40
                                CFR 63.11496(f)(3)(ii) in the final rule
                                requires either a performance test or
                                engineering assessment. This paragraph
                                in the final rule also specifies that a
                                performance test must be conducted under
                                representative process operating
                                conditions, but it does not specify
                                conditions under which an engineering
                                assessment must be conducted. To correct
                                this oversight, and maintain consistency
                                with the conditions under which
                                performance testing must be conducted,
                                we are proposing to modify 40 CFR
                                63.11496(f)(3)(ii) to clarify that if a
                                source elects to conduct an engineering
                                assessment to demonstrate initial
                                compliance with the standards for metal
                                HAP process vents, then the design
                                evaluation must be conducted at
                                representative operating conditions for
                                the CMPU.
40 CFR 63.11498(a)(2),         Other rules, such as the HON, specify
 63.11502(b), and Table 6.      that discharge of wastewater to a
                                Resource Conservation and Recovery Act
                                (RCRA)-permitted underground injection
                                well is a treatment (i.e., control)
                                option for wastewater streams. We
                                intended to include the same option in
                                40 CFR part 63, subpart VVVVVV. However,
                                ``wastewater treatment'' is defined in
                                40 CFR 63.11502 as procedures that
                                remove or reduce HAP, which does not
                                clearly include discharge to an
                                underground injection well. To clarify
                                this point, we are proposing to add a
                                definition of ``hazardous waste
                                treatment'' in 40 CFR 63.11502(b) to
                                mean treatment in a RCRA-permitted
                                incinerator, process heater, boiler or
                                underground injection well. The specific
                                language in the proposed definition is
                                consistent with 40 CFR 63.138(h) of the
                                HON wastewater provisions. We are also
                                proposing corresponding changes to Table
                                6 to subpart VVVVVV. Specifically, for
                                each wastewater stream, Item 1.a would
                                require either wastewater treatment or
                                hazardous waste treatment. In addition,
                                Item 2.b would be edited to use the new
                                term ``hazardous waste treatment.'' The
                                proposed changes to Item 1.a also make
                                it clear that the treatment conducted to
                                meet Item 2.b would satisfy the
                                requirements of Item 1.a.
40 CFR 63.11501(c)(4)(i).....  We are proposing to replace the incorrect
                                word ``dimension'' with the correct word
                                ``dimensions.''
40 CFR 63.11502(a)...........  We are proposing to insert a reference to
                                the definition of the term ``isolated
                                intermediate'' in 40 CFR 63.2550 of the
                                MON because this term is used in the
                                definitions of several other terms in 40
                                CFR 63.11502.

40 CFR 63.11502(b)...........  We are proposing to modify the definition
                                of ``product'' to remove ``isolated
                                intermediates'' from the list of
                                materials that are not considered
                                products. This change would make the
                                definition of product consistent with
                                the definitions of chemical
                                manufacturing process and isolated
                                intermediate. A chemical manufacturing
                                process is defined as all equipment
                                which collectively functions to produce
                                a product or isolated intermediate.
                                Isolated intermediate is defined as a
                                product of a process that is stored
                                before subsequent processing.
40 CFR 63.11502(b)...........  We are proposing to add a definition for
                                the term ``uncontrolled emissions''
                                because the control threshold for batch
                                process vents and metal HAP process
                                vents in 40 CFR 63.11496(a) and (f) use
                                this term. The proposed definition would
                                read as follows: ``Uncontrolled
                                emissions means process vent emissions
                                at the outlet of the last recovery
                                device, if any, and prior to any control
                                device. In the absence of both recovery
                                devices and control devices,
                                uncontrolled emissions are the emissions
                                discharged to the atmosphere.''
------------------------------------------------------------------------

VIII. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
action is a ``significant regulatory action'' because it may raise
novel legal or policy issues. Accordingly, the EPA submitted this
action to the Office of Management and Budget (OMB) for review under
Executive Order 12866 and Executive Order 13563 (76 FR 3821, January
21, 2011), and any changes made in response to OMB recommendations have
been documented in the docket for this action.

B. Paperwork Reduction Act

    The information collection requirements in this rule have been
submitted for approval to the Office of Management and Budget (OMB)
under the Paperwork Reduction Act, 44 U.S.C. 3501, et seq. The
Information Collection Request (ICR) document prepared by the EPA has
been assigned EPA ICR number 2323.03. The information collection
requirements are not enforceable until OMB approves them.
    The information requirements are based on notification,
recordkeeping and reporting requirements in the NESHAP General
Provisions (40 CFR part 63, subpart A), which are mandatory for all
operators subject to national emission standards. These recordkeeping
and reporting requirements are specifically authorized by section 114
of the CAA (42 U.S.C. 7414). All information submitted to the EPA
pursuant to the recordkeeping and reporting requirements for which a
claim of confidentiality is made is safeguarded according to agency
policies set forth in 40 CFR part 2, subpart B.
    For this proposed rule, the EPA is adding affirmative defense to
the estimate of burden in the ICR. To provide the public with an
estimate of the relative magnitude of the burden associated with an
assertion of the affirmative defense position adopted by a source, the
EPA has provided administrative adjustments to this ICR to show what
the notification, recordkeeping and reporting requirements associated
with the assertion of the affirmative defense might entail. The EPA's
estimate for the required notification, reports and records for any
individual incident, including the root cause analysis, totals $2,958
and is based on the time and effort required of a source to review
relevant data, interview plant employees, and document the events
surrounding a malfunction that has caused an exceedance of an emissions
limit. The estimate also includes time to produce and retain the record
and reports for submission to the EPA. The EPA provides this
illustrative estimate of this burden because these costs are only
incurred if there has been a violation and a source chooses to take
advantage of the affirmative defense.
    Given the variety of circumstances under which malfunctions could
occur, as well as differences among sources' operation and maintenance
practices, we cannot reliably predict the severity and frequency of
malfunction-related excess emissions events for a particular source. It
is important to note that the EPA has no basis currently for estimating
the number of malfunctions that would qualify for an affirmative
defense. Current historical records would be an inappropriate basis, as
source owners or operators previously operated their facilities in
recognition that they were exempt from the requirement to comply with
emissions standards during malfunctions. Of the number of excess
emissions events reported by source operators, only a small number
would be expected to result from a malfunction (based on the definition
above), and only a subset of excess emissions caused by malfunctions
would result in the source choosing to assert the affirmative defense.
Thus, we believe the number of instances in which source operators
might be expected to avail themselves of the affirmative defense will
be extremely small. For this reason, we estimate no more than 2 or 3
such occurrences for all sources subject to 40 CFR part 63, subpart
VVVVVV over the 3-year period covered by this ICR. We expect to gather
information on such events in the future and will revise this estimate
as better information becomes available. The annual monitoring,
reporting and recordkeeping burden for this collection (averaged over
the first 3 years after the effective date of the standards) for these
amendments to subpart VVVVVV is estimated to be $3,141 per year. This
includes 30 labor hours per year at a total labor cost of $3,141 per
year. There is no change in annual burden to the Federal government for
these amendments.
    An agency may not conduct or sponsor, and a person is not required
to respond to, a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for the
EPA's regulations in 40 CFR are listed in 40 CFR part 9. When these ICR
are approved by OMB, the agency will publish a technical amendment to
40 CFR part 9 in the Federal Register to display the OMB control
numbers for the approved information collection requirements contained
in the final rules.
    To comment on the agency's need for this information, the accuracy
of the provided burden estimates, and any suggested methods for
minimizing respondent burden, the EPA has established a public docket
for this rule, which includes this ICR, under Docket ID number EPA-HQ-
OAR-2008-0334. Submit any comments related to the ICR to the EPA and
OMB. See the ADDRESSES

section at the beginning of this notice for where to submit comments to
the EPA. Send comments to OMB at the Office of Information and
Regulatory Affairs, Office of Management and Budget, 725 17th Street
NW., Washington, DC 20503, Attention: Desk Office for the EPA. Since
OMB is required to make a decision concerning the ICR between 30 and 60
days after March 30, 2012, a comment to OMB is best assured of having
its full effect if OMB receives it by February 29, 2012. The final rule
will respond to any OMB or public comments on the information
collection requirements contained in this proposal.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act generally requires an agency to
prepare a regulatory flexibility analysis of any rule subject to notice
and comment rulemaking requirements under the Administrative Procedures
Act or any other statute unless the agency certifies that the rule will
not have a significant economic impact on a substantial number of small
entities. Small entities include small businesses, small organizations,
and small governmental jurisdictions.
    For purposes of assessing the impacts of this proposed rule on
small entities, small entity is defined as: (1) A small business as
defined by the Small Business Administration's regulations at 13 CFR
121.201(less than 500, 750 or 1,000 employees, depending on the
specific NAICS Code under subcategory 325); (2) a small governmental
jurisdiction that is a government of a city, county, town, school
district or special district with a population of less than 50,000; and
(3) a small organization that is any not-for-profit enterprise that is
independently owned and operated and is not dominant in its field.
    After considering the economic impacts of this proposed rule on
small entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities. This
proposed rule will not impose any new requirements on any small
entities because it does not impose any additional regulatory
requirements beyond those already promulgated in the final rule. We
continue to be interested in the potential impacts of the proposed rule
on small entities and welcome comments on issues related to such
impacts.

D. Unfunded Mandates Reform Act

    This action contains no Federal mandates under the provisions of
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C.
1531-1538 for state, local or tribal governments or the private sector.
This proposed rule imposes no enforceable duty on any state, local or
tribal governments or the private sector. Therefore, this proposed rule
is not subject to the requirements of sections 202 and 205 of the UMRA.
    This action is also not subject to the requirements of section 203
of UMRA because it contains no regulatory requirements that might
significantly or uniquely affect small governments. This rule proposes
amendments to aid with compliance, but does not change the level of the
standards in the rule.

E. Executive Order 13132: Federalism

    This action does not have federalism implications. It will not have
substantial direct effects on the states, on the relationship between
the national government and the states or on the distribution of power
and responsibilities among the various levels of government, as
specified in Executive Order 13132. This proposed rule will not impose
direct compliance costs on state or local governments, and will not
preempt state law. Thus, Executive Order 13132 does not apply to this
action.
    In the spirit of Executive Order 13132, and consistent with EPA
policy to promote communications between the EPA and state and local
governments, the EPA specifically solicits comment on this proposed
action from state and local officials.

F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments

    This proposed rule does not have tribal implications, as specified
in Executive Order 13175 (65 FR 67249, November 9, 2000). It will not
have substantial direct effects on tribal governments, on the
relationship between the Federal government and Indian tribes or on the
distribution of power and responsibilities between the Federal
government and Indian tribes, as specified in Executive Order 13175.
Thus, Executive Order 13175 does not apply to this proposed rule.
    The EPA specifically solicits additional comment on this proposed
action from tribal officials.

G. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks

    The EPA interprets Executive Order 13045 (62 FR 19885, April 23,
1997) as applying to those regulatory actions that concern health or
safety risks, such that the analysis required under section 5-501 of
the Executive Order has the potential to influence the regulation. This
proposed rule is not subject to Executive Order 13045 because it is
based solely on technology performance.

H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use

    This action is not a ``significant energy action'' as defined in
Executive Order 13211 (66 FR 28355, May 22, 2001), because it is not
likely to have a significant adverse effect on the supply, distribution
or use of energy. Further, this action does not change the level of
standards already in place.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement
Act (NTTAA) of 1995, Public Law 104-113, 12(d) (15 U.S.C. 272 note)
directs the EPA to use voluntary consensus standards (VCS) in its
regulatory activities, unless to do so would be inconsistent with
applicable law or otherwise impractical. VCS are technical standards
(e.g., materials specifications, test methods, sampling procedures and
business practices) that are developed or adopted by VCS bodies. NTTAA
directs the EPA to provide Congress, through OMB, explanations when the
agency decides not use available and applicable VCS.
    This proposed rulemaking does not involve technical standards.
Therefore, the EPA did not consider the use of any VCS.

J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations

    Executive Order 12898 (59 FR 7629, February 16, 1994) establishes
Federal executive policy on environmental justice. Its main provision
directs Federal agencies, to the greatest extent practicable and
permitted by law, to make environmental justice part of their mission
by identifying and addressing, as appropriate, disproportionately high
and adverse human health or environmental effects of their programs,
policies and activities on minority populations and low-income
populations in the United States.
    The EPA has determined that this proposed rule will not have
disproportionately high and adverse human health or environmental
effects on minority or low-income populations because it increases the
level of environmental protection for all affected

populations without having any disproportionately high and adverse
human health or environmental effects on any population, including any
minority or low-income population. The amendments do not relax the
control measures on sources regulated by the rules, and, therefore,
will not cause emissions increases from these sources.

List of Subjects in 40 CFR Part 63

    Environmental protection, Administrative practice and procedure,
Air pollution control, Hazardous substances.

    Dated: January 13, 2012.
Lisa P. Jackson,
Administrator.
    For the reasons cited in the preamble, title 40, chapter I, part 63
of the Code of Federal Regulations is proposed to be amended as
follows:

PART 63--[AMENDED]

    1. The authority citation for part 63 continues to read as follows:

    Authority:  42 U.S.C. 7401, et seq.

Subpart VVVVVV--[AMENDED]

    2. Section 63.11494 is amended by:
    a. Revising paragraph (a);
    b. Adding paragraph (c)(1)(vii);
    c. Revising the last sentence in paragraph (d); and
    d. Revising paragraph (e) to read as follows:

Sec.  63.11494  What are the applicability requirements and compliance
dates?

    (a) Except as specified in paragraph (c) of this section, you are
subject to this subpart if you own or operate a chemical manufacturing
process unit (CMPU) that meets the conditions specified in paragraphs
(a)(1) and (2) of this section.
    (1) The CMPU is located at an area source of hazardous air
pollutant (HAP) emissions.
    (2) HAP listed in Table 1 to this subpart (Table 1 HAP) are present
in the CMPU, as specified in paragraph (a)(2)(i), (ii), (iii), (iv) or
(v) of this section.
    (i) The CMPU uses as feedstock, any material that contains
quinoline and/or manganese compounds at a concentration greater than
1.0 percent by weight, or other Table 1 HAP at a collective
concentration greater than 0.1 percent by weight. To determine the
Table 1 HAP content of feedstocks, you may rely on formulation data
provided by the manufacturer or supplier, such as the Material Safety
Data Sheet (MSDS) for the material. If the concentration in an MSDS is
presented as a range, use the upper bound of the range.
    (ii) Quinoline is generated as byproduct and is present in the CMPU
in any liquid stream (process or waste) at a concentration greater than
1.0 percent by weight.
    (iii) Hydrazine and/or Table 1 organic compounds other than
quinoline are generated as byproduct and are present in the CMPU in any
liquid stream (process or waste) at a collective concentration greater
than 0.1 percent by weight.
    (iv) Hydrazine and/or any Table 1 organic compounds are generated
as byproduct and are present in the CMPU in any process vent stream at
a collective concentration greater than 50 parts per million by volume
(ppmv).
    (v) Hydrazine or any Table 1 organic compound is produced as a
product of the CMPU.
* * * * *
    (c) * * *
    (1) * * *
    (vii) Lead oxide production at Lead Acid Battery Manufacturing
Facilities, subject to subpart PPPPPP of this part.
* * * * *
    (d) * * * A CMPU using only Table 1 metal HAP is required to
control only total CAA section 112(b) metal HAP in accordance with
Sec.  63.11495 and, if applicable, Sec.  63.11496(f).
* * * * *
    (e) Any source subject to this subpart that installed a federally-
enforceable control device on an affected CMPU by the first substantive
compliance date of an otherwise applicable MACT standard, and, as a
result, became an area source under 40 CFR part 63, is required to
obtain a permit under 40 CFR part 70 or 40 CFR part 71. For existing
sources subject to title V, as a result of this rule, a complete title
V permit application must be submitted no later than 12 months after
date of publication of the final rule amendments in the Federal
Register if the source is subject to this rule on that date. New
sources and existing sources that become subject to this rule after
date of publication of the final rule amendments in the Federal
Register must submit a complete title V permit application no later
than 12 months after becoming subject to this rule. Otherwise, you are
exempt from the obligation to obtain a permit under 40 CFR part 70 or
40 CFR part 71, provided you are not otherwise required by law to
obtain a permit under 40 CFR 70.3(a) or 40 CFR 71.3(a). Notwithstanding
the previous sentence, you must continue to comply with the provisions
of this subpart.
* * * * *
    3. Section 63.11495 is amended by:
    a. Revising paragraphs (a)(1) and (a)(3);
    b. Adding paragraph (c) heading; and
    c. Adding paragraph (d) to read as follows:

Sec.  63.11495  What are the management practices and other
requirements?

    (a) * * *
    (1) Each process vessel must be equipped with a cover or lid that
must be closed at all times when it is in organic HAP service or metal
HAP service, except for manual operations that require access, such as
material addition and removal, inspection, sampling and cleaning.
* * * * *
    (3) You must conduct inspections of process vessels and equipment
for each CMPU in organic HAP service or metal HAP service, as specified
in paragraphs (a)(3)(i) through (v) of this section, to demonstrate
compliance with paragraph (a)(1) of this section and to determine that
the process vessels and equipment are sound and free of leaks.
    (i) Inspections must be conducted at least quarterly.
    (ii) For these inspections, detection methods incorporating sight,
sound or smell are acceptable. Indications of a leak identified using
such methods constitute a leak unless you demonstrate that the
indications of a leak are due to a condition other than loss of HAP. If
indications of a leak are determined not to be HAP in one quarterly
monitoring period, you must still perform the inspection and
demonstration in the next quarterly monitoring period.
    (iii) As an alternative to conducting inspections, as specified in
paragraph (a)(3)(ii) of this section, you may use Method 21 of 40 CFR
part 60, appendix A-7, with a leak definition of 500 ppmv to detect
leaks. You may also use Method 21 with a leak definition of 500 ppmv to
determine if indications of a leak identified during an inspection
conducted in accordance with paragraph (a)(3)(ii) of this section are
due to a condition other than loss of HAP. The procedures in this
paragraph (a)(3)(iii) may not be used as an alternative to the
inspection required by paragraph (a)(3)(ii) of this section for process
vessels that contain metal HAP as particulate.
    (iv) Inspections must be conducted while the subject CMPU is
operating.
    (v) No inspection is required in a calendar quarter during which
the subject CMPU does not operate for the entire calendar quarter and
is not in organic HAP service or metal HAP service. If the CMPU
operates at all

during a calendar quarter, an inspection is required.
* * * * *
    (c) Startup, shutdown and malfunction. * * *
    (d) General duty. At all times, you must operate and maintain any
affected source, including associated air pollution control equipment
and monitoring equipment, in a manner consistent with safety and good
air pollution control practices for minimizing emissions. Determination
of whether such operation and maintenance procedures are being used
will be based on information available to the Administrator, which may
include, but is not limited to, monitoring results, review of operation
and maintenance procedures, review of operation and maintenance records
and inspection of the source.
    4. Section 63.11496 is amended by revising paragraphs (f)(3)(i)(C),
(f)(3)(ii) and (g)(1) to read as follows:

Sec.  63.11496  What are the standards and compliance requirements for
process vents?

* * * * *
    (f) * * *
    (3) * * *
    (i) * * *
    (C) Operation and maintenance plan for the control device
(including a preventative maintenance schedule consistent with the
manufacturer's instructions for routine and long-term maintenance) and
continuous monitoring system (CMS).
* * * * *
    (ii) You must conduct a performance test or an engineering
assessment for each CMPU subject to a HAP metals emissions limit in
Table 4 to this subpart and report the results in your Notification of
Compliance Status (NOCS). Each performance test or engineering
assessment must be conducted under representative operating conditions,
and sampling for each performance test must be conducted at both the
inlet and outlet of the control device. Upon request, you shall make
available to the Administrator such records as may be necessary to
determine the conditions of performance tests. If you own or operate an
existing affected source, you are not required to conduct a performance
test if a prior performance test was conducted within the 5 years prior
to the effective date using the same methods specified in paragraph
(f)(3)(iii) of this section, and, either no process changes have been
made since the test, or, if you can demonstrate that the results of the
performance test, with or without adjustments, reliably demonstrate
compliance despite process changes.
* * * * *
    (g) * * *
    (1) Requirements for Performance Tests. (i) The requirements
specified in Sec. Sec.  63.2450(g)(1) through (4) apply instead of, or
in addition to, the requirements specified in 40 CFR part 63, subpart
SS.
    (ii) Upon request, you shall make available to the Administrator,
such records as may be necessary to determine the conditions of
performance tests.
* * * * *
    5. Section 63.11498 is amended by revising paragraph (a)(2) to read
as follows:

Sec.  63.11498  What are the standards and compliance requirements for
wastewater systems?

    (a) * * *
    (2) You are not required to determine the partially soluble
concentration in wastewater that is hard piped to a combustion unit or
hazardous waste treatment unit, as specified in Table 6, Item 2.b to
this subpart, or Table 6, Item 2.c to this subpart.
* * * * *
    6. Section 63.11501 is amended by:
    a. Revising the section heading;
    b. Revising the second sentence in paragraph (c) introductory text,
and paragraph (c)(1) introductory text;
    c. Adding paragraphs (c)(1)(vii) and (c)(1)(viii);
    d. Revising paragraph (c)(4)(i);
    e. Adding paragraph (c)(8);
    d. Revising the second sentence in paragraph (d) introductory text;
    e. Adding paragraph (d)(8); and
    f. Adding paragraph (e) to read as follows:

Sec.  63.11501  What are the notification, recordkeeping, and reporting
requirements, and how may I assert an affirmative defense for
exceedance of emission limit during malfunction?

* * * * *
    (c) * * * If you are subject, you must comply with the
recordkeeping and reporting requirements of Sec.  63.10(b)(2)(iii) and
(vi) through (xiv), and the applicable requirements specified in
paragraphs (c)(1) through (8) of this section.
    (1) For each CMPU subject to this subpart, you must keep the
records specified in paragraphs (c)(1)(i) through (viii) of this
section.
* * * * *
    (vii) Records of the occurrence and duration of each malfunction of
operation (i.e., process equipment) or the air pollution control and
monitoring equipment.
    (viii) Records of actions taken during periods of malfunction to
minimize emissions in accordance with Sec.  63.11495(d), including
corrective actions to restore malfunctioning process and air pollution
control and monitoring equipment to its normal or usual manner of
operation.
* * * * *
    (4) * * *
    (i) Keep records of the vessel dimensions, capacity, and liquid
stored, as specified in Sec.  63.1065(a).
* * * * *
    (8) For continuous process vents subject to Table 3 to this
subpart, keep records of the occurrence and duration of each startup
and shutdown of operation of process equipment, or of air pollution
control and monitoring equipment.
    (d) * * * Reports are required only for semiannual periods during
which you experienced any of the events described in paragraphs (d)(1)
through (8) of this section.
* * * * *
    (8) Malfunctions. If a malfunction occurred during the reporting
period, the report must include the number, duration and a brief
description for each type of malfunction which occurred during the
reporting period, and which caused or may have caused any applicable
emission limitation to be exceeded. The report must include an estimate
of the volume of regulated pollutants emitted and attributed to the
malfunction, with a description of the method used to estimate the
emissions. The report must also include a description of actions you
took during a malfunction of an affected source to minimize emissions
in accordance with Sec.  63.11495(d), including actions taken to
correct a malfunction.
    (e) Affirmative defense for exceedance of emission limit during
malfunction. In response to an action to enforce the standards set
forth in Sec. Sec.  63.11495 through 63.11499, you may assert an
affirmative defense to a claim for civil penalties for exceedances of
such standards that are caused by malfunction, as defined at 40 CFR
63.2. Appropriate penalties may be assessed, however, if you fail to
meet your burden of proving all of the requirements in the affirmative
defense. The affirmative defense is not available for claims for
injunctive relief.
    (1) To establish the affirmative defense in any action to enforce
such a limit, you must timely meet the notification requirements in
paragraph (e)(2) of this section, and must prove by a preponderance of
evidence that: (i) The excess emissions:

    (A) Were caused by a sudden, infrequent and unavoidable failure of
air pollution control and monitoring equipment, process equipment, or a
process to operate in a normal or usual manner; and
    (B) Could not have been prevented through careful planning, proper
design, or better operation and maintenance practices; and
    (C) Did not stem from any activity or event that could have been
foreseen and avoided, or planned for; and
    (D) Were not part of a recurring pattern indicative of inadequate
design, operation or maintenance; and
    (ii) Repairs were made as expeditiously as possible when the
applicable emission limitations were being exceeded. Off-shift and
overtime labor were used, to the extent practicable to make these
repairs; and
    (iii) The frequency, amount and duration of the excess emissions
(including any bypass) were minimized to the maximum extent practicable
during periods of such emissions; and
    (iv) If the excess emissions resulted from a bypass of control
equipment or a process, then the bypass was unavoidable to prevent loss
of life, personal injury or severe property damage; and
    (v) All possible steps were taken to minimize the impact of the
excess emissions on ambient air quality, the environment and human
health; and
    (vi) All emissions monitoring and control systems were kept in
operation, if at all possible, consistent with safety and good air
pollution control practices; and
    (vii) All of the actions in response to the excess emissions were
documented by properly signed, contemporaneous operating logs; and
    (viii) At all times, the affected source was operated in a manner
consistent with good practices for minimizing emissions; and
    (ix) A written root cause analysis has been prepared, the purpose
of which is to determine, correct and eliminate the primary causes of
the malfunction and the excess emissions resulting from the malfunction
event at issue. The analysis must also specify, using best monitoring
methods and engineering judgment, the amount of excess emissions that
were the result of the malfunction.
    (2) Notification. If you experience an exceedance of your emission
limit(s) during a malfunction, you must submit a written report to the
Administrator within 45 business days of the initial occurrence of the
exceedance of the standard(s) in Sec. Sec.  63.11495 through 63.11499
to demonstrate, with all necessary supporting documentation, that it
has met the requirements set forth in paragraph (e)(1) of this section.
You may seek an extension of this deadline for up to 30 additional
business days by submitting a written request to the Administrator
before the expiration of the 45 business-day period. Until a request
for an extension has been approved by the Administrator, you are
subject to the requirement to submit such report within 45 business
days.
    7. Section 63.11502 is amended by:
    a. Adding in alphabetical order the term ``Isolated intermediate
(Sec.  63.2550),'' and removing the term ``Family of materials (Sec.
63.2550)'' in paragraph (a); and
    b. Adding in alphabetical order definitions for ``Affirmative
defense,'' ``Family of materials,'' ``Hazardous waste treatment,'' and
``Uncontrolled emissions,'' revising paragraph (1) of the definition of
``Chemical manufacturing process,'' and revising the definitions for
``In organic HAP service'' and ``Product'' in paragraph (b) to read as
follows:

Sec.  63.11502  What definitions apply to this subpart?

    (a) * * *
    Isolated intermediate (Sec.  63.2550)
* * * * *
    (b) * * *
    Affirmative defense means, in the context of an enforcement
proceeding, a response or defense put forward by a defendant, regarding
which the defendant has the burden of proof, and the merits of which
are independently and objectively evaluated in a judicial or
administrative proceeding.
* * * * *
    Chemical manufacturing process * * *
    (1) All cleaning operations;
* * * * *
    Family of materials means a grouping of materials that have the
same basic composition or the same basic end use or functionality; are
produced using the same basic feedstocks, the same manufacturing
equipment configuration and in the same sequence of steps; and whose
production results in emissions of the same Table 1 HAP at
approximately the same rate per pound of product produced. Examples of
families of materials include multiple grades of same product or
different variations of a product (e.g., blue, black and red resins).
* * * * *
    Hazardous waste treatment, as used in the wastewater requirements,
means treatment in any of the following units:
    (1) A hazardous waste incinerator for which the owner or operator
has been issued a final permit under 40 CFR part 270 and complies with
the requirements of 40 CFR part 264, subpart O, or has certified
compliance with the interim status requirements of 40 CFR part 265,
subpart O;
    (2) A process heater or boiler for which you either have been
issued a final permit under 40 CFR part 270 and comply with the
requirements of 40 CFR part 266, subpart H, or for which you have
certified compliance with the interim status requirements of 40 CFR
part 266, subpart H; or
    (3) An underground injection well for which the owner or operator
has been issued a final permit under 40 CFR part 270 or 40 CFR part 144
and complies with the requirements of 40 CFR part 122.
* * * * *
    In organic HAP service means that a process vessel or piece of
equipment either contains or contacts a feedstock, byproduct or product
that contains an organic HAP, excluding any organic HAP used in manual
cleaning activities. A process vessel is no longer in organic HAP
service after the vessel has been emptied to the extent practicable
(i.e., a vessel with liquid left on process vessel walls or as bottom
clingage, but not in pools, due to floor irregularity, is considered
completely empty) and any cleaning has been completed.
* * * * *
    Product means a compound or chemical which is manufactured as the
intended product of the CMPU. Products include co-products. By-
products, impurities, wastes and trace contaminants are not considered
products.
* * * * *
    Uncontrolled emissions means process vent emissions at the outlet
of the last recovery device, if any, and prior to any control device.
In the absence of both recovery devices and control devices,
uncontrolled emissions are the emissions discharged to the atmosphere.
* * * * *

Table 6 to Subpart VVVVVV of Part 63--[Amended]

    8. Table 6 to subpart VVVVVV of part 63 is revised to read as
follows:

  Table 6 to Subpart VVVVVV of Part 63--Emission Limits and Compliance
                   Requirements for Wastewater Systems
 [As required in Sec.   63.11498, you must comply with the requirements
         for wastewater systems as shown in the following table]
------------------------------------------------------------------------
        For each ...              You must ...        And you must ...
------------------------------------------------------------------------
1. Wastewater Stream........  a. Discharge to       i. Maintain records
                               onsite or offsite     identifying each
                               wastewater            wastewater stream
                               treatment or          and documenting the
                               hazardous waste       type of treatment
                               treatment.            that it receives.
                                                     Multiple wastewater
                                                     streams with
                                                     similar
                                                     characteristics and
                                                     from the same type
                                                     of activity in a
                                                     CMPU may be grouped
                                                     together for
                                                     recordkeeping
                                                     purposes.
------------------------------------------------------------------------
2. Wastewater stream          a. Use a decanter,    i. For the water
 containing partially          steam stripper,       phase, comply with
 soluble HAP at a              thin film             the requirements in
 concentration >=10,000 ppmw   evaporator, or        Item 1 of this
 and separate organic and      distillation unit     table, and
 water phases.                 to separate the      ii. For the organic
                               water phase from      phase(s), recycle
                               the organic           to a process, use
                               phase(s); or          as fuel, or dispose
                                                     as hazardous waste
                                                     either onsite or
                                                     offsite, and
                                                    iii. Keep records of
                                                     the wastewater
                                                     streams subject to
                                                     this requirement
                                                     and the disposition
                                                     of the organic
                                                     phase(s).
------------------------------------------------------------------------
                               b. Hard pipe the     i. Keep records of
                               entire wastewater     the wastewater
                               stream to onsite      streams subject to
                               hazardous waste       this requirement
                               treatment, or hard    and the disposition
                               pipe the entire       of the wastewater
                               wastewater stream     streams.
                               to a point of
                               transfer to offsite
                               hazardous waste
                               treatment.
------------------------------------------------------------------------