[Federal Register: December 3, 2009 (Volume 74, Number 231)]
[Rules and Regulations]
[Page 63503-63530]
[DOCID:fr03de09-8]

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Part II

Environmental Protection Agency

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40 CFR Part 63

National Emission Standards for Hazardous Air Pollutants: Area Source
Standards for Paints and Allied Products Manufacturing; Final Rule

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 63

[EPA-HQ-OAR-2008-0053; FRL-8983-5]
RIN 2060-AN47

National Emission Standards for Hazardous Air Pollutants: Area
Source Standards for Paints and Allied Products Manufacturing

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is issuing national emission standards for control of
hazardous air pollutants (HAP) for the Paints and Allied Products
Manufacturing area source category. The final rule establishes emission
standards in the form of management practices for volatile HAP, and
emission standards in the form of equipment standards for particulate
HAP. The emissions standards for new and existing sources are based on
EPA's determination as to what constitutes the generally available
control technology or management practices (GACT) for the area source
category.

DATES: This final rule is effective on December 3, 2009.

ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-HQ-OAR-2008-0053. All documents in the docket are listed in the
Federal Docket Management System index at http://www.regulations.gov
index. Although listed in the index, some information is not publicly
available, e.g., confidential business information (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 form. Publicly available docket materials are available
either electronically in http://www.regulations.gov or in hard copy at
the EPA Docket Center, Public Reading Room, EPA West, 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 (202)
566-1744, and the telephone number for the Air Docket is (202) 566-
1742.

FOR FURTHER INFORMATION CONTACT: Melissa Payne, Regulatory Development
and Policy Analysis Group, Office of Air Quality Planning and Standards
(C404-05), Environmental Protection Agency, Research Triangle Park,
North Carolina 27711, telephone number:<PHONE_NUMBER>; fax number:
(919) 541-0242; e-mail address<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION: The supplementary information in this
preamble is organized as follows:

I. General Information
    A. Does this action apply to me?
    B. Where can I get a copy of this document?
    C. Judicial Review
II. Background Information for This Final Rule
III. Summary of Changes Since Proposal
    A. Applicability
    B. Standards and Compliance Requirements
    C. Reporting and Recordkeeping Requirements
    D. Definitions
    E. Other
IV. Summary of Final Standards
    A. Do these standards apply to my source?
    B. When must I comply with these standards?
    C. What processes does this final rule address?
    D. What are the emissions control requirements?
    E. What are the initial compliance requirements?
    F. What are the continuous compliance requirements?
    G. What are the notification, recordkeeping, and reporting
requirements?
V. Summary of Comments and Responses
    A. Applicability
    B. Compliance/Implementation Dates
    C. De Minimis Thresholds and Subcategorization
    D. Emission Standards and Management Practices
    E. Testing, Monitoring, and Inspection Requirements
    F. Reporting and Recordkeeping Requirements
    G. Baseline Emissions and Emission Reductions
    H. Title V Requirements
VI. Impacts of the Final Standards
VII. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and 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 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
    K. Congressional Review Act

I. General Information

A. Does this action apply to me?

    The regulated categories and entities potentially affected by this
final rule are shown in the table below. You are subject to this
subpart if you own or operate a facility that performs paints and
allied products manufacturing that is an area source of hazardous air
pollutant (HAP) emissions and processes, uses, or generates materials
containing the following HAP: benzene, methylene chloride, and
compounds of cadmium, chromium, lead, and nickel.
    The paints and allied products manufacturing area source rule
(CCCCCCC) covers all coatings, but does not include resin
manufacturing, which is covered by the chemical manufacturing area
source standard (VVVVVV). Facilities that manufacture both resins and
coatings are required to comply with both rules. Paints and allied
products are defined in Sec. 63.11607 as any material such as a paint,
ink, or adhesive that is intended to be applied to a substrate and
consists of a mixture of resins, pigments, solvents, and/or other
additives. Typically, the industries that manufacture these products
are described by Standard Industry Classification (SIC) codes 285 or
289 and North American Industry Classification System (NAICS) codes
3255 and 3259 and are produced by physical means, such as blending and
mixing, as opposed to chemical synthesis means, such as reactions and
distillation. The source category does not include the following: (1)
The manufacture of products that do not leave a dried film of solid
material on the substrate, such as thinners, paint removers, brush
cleaners, and mold release agents; (2) the manufacture of electroplated
and electroless metal films; (3) the manufacture of raw materials, such
as resins, pigments, and solvents used in the production of paints and
allied products; \1\ and (4) activities by end users of paints or
allied products to ready those materials for application.
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    \1\ Production of paint thinners and paint remover is covered
under the Industrial Organic Chemical Manufacturing Area Source
NESHAP, and electroplated and electroless metal films are covered
under the Plating and Polishing Operations Area Source NESHAP.
Resins manufacturing is covered under the Plastic Materials and
Resins Manufacturing Area Source NESHAP and pigments manufacturing
is covered under the Inorganic Pigment Manufacturing Area Source
NESHAP.

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                                   NAICS  code    Examples of regulated
             Category                  \2\              entities
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Paint & Coating Manufacturing....       325510  Area source facilities
                                                 engaged in mixing
                                                 pigments, solvents, and
                                                 binders into paints and
                                                 other coatings, such as
                                                 stains, varnishes,
                                                 lacquers, enamels,
                                                 shellacs, and water
                                                 repellant coatings for
                                                 concrete and masonry.
Adhesive Manufacturing...........       325520  Area source facilities
                                                 primarily engaged in
                                                 manufacturing
                                                 adhesives, glues, and
                                                 caulking compounds.
Printing Ink Manufacturing.......       325910  Area source facilities
                                                 primarily engaged in
                                                 manufacturing printing
                                                 inkjet inks and inkjet
                                                 cartridges.
All Other Miscellaneous Chemical        325998  Area source facilities
 Product and Preparation                         primarily engaged in
 Manufacturing.                                  manufacturing indelible
                                                 ink, India ink writing
                                                 ink, and stamp pad ink.
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    This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to be affected by this
action. To determine whether your facility is regulated by this action,
you should examine the applicability criteria in 40 CFR 63.11599,
subpart CCCCCCC (NESHAP for Area Sources: Paints and Allied Products
Manufacturing). If you have any questions regarding the applicability
of this action to a particular entity, consult either the state
delegated authority or the EPA regional representative as listed in 40
CFR 63.13 of subpart A (General Provisions).
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    \2\ North American Industry Classification System.
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B. Where can I get a copy of this document?

    In addition to being available in the docket, an electronic copy of
this proposed action will also be available on the Worldwide Web (WWW)
through EPA's Technology Transfer Network (TTN). A copy of this
proposed action will be posted on the TTN's policy and guidance page
for newly proposed or promulgated rules at the following address:
http://www.epa.gov/ttn/oarpg. The TTN provides information and
technology exchange in various areas of air pollution control.

C. Judicial Review

    Under section 307(b)(1) of the Clean Air Act (CAA), judicial review
of this final rule is available only by filing a petition for review in
the United States Court of Appeals for the District of Columbia Circuit
by February 1, 2010. Under section 307(b)(2) of the CAA, the
requirements established by this final rule may not be challenged
separately in any civil or criminal proceedings brought by EPA to
enforce these requirements.
    Section 307(d)(7)(B) of the CAA further provides that ``[o]nly an
objection to a rule or procedure which was raised with reasonable
specificity during the period for public comment (including any public
hearing) may be raised during judicial review.'' This section also
provides a mechanism for EPA to convene a proceeding for
reconsideration, ``[i]f the person raising an objection can demonstrate
to EPA that it was impracticable to raise such objection within [the
period for public comment] or if the grounds for such objection arose
after the period for public comment (but within the time specified for
judicial review) and if such objection is of central relevance to the
outcome of the rule.'' Any person seeking to make such a demonstration
to us should submit a Petition for Reconsideration to the Office of the
Administrator, U.S. EPA, Room 3000, Ariel Rios Building, 1200
Pennsylvania Ave., NW., Washington, DC 20460, with a copy to both the
person(s) listed in the preceding FOR FURTHER INFORMATION CONTACT
section, and the Associate General Counsel for the Air and Radiation
Law Office, Office of General Counsel (Mail Code 2344A), U.S. EPA, 1200
Pennsylvania Ave., NW., Washington, DC 20460.

II. Background Information for This Final Rule

    Section 112(d) of the Clean Air Act requires 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 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.
    Section 112(k)(3)(B) of the CAA calls for EPA to identify at least
30 HAP which, as the result of emissions from area sources, pose the
greatest threat to public health in the largest number of urban areas.
Section 112(c)(3) requires 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. EPA implemented these provisions in 1999 in the Integrated
Urban Air Toxics Strategy, (64 FR 38715, July 19, 1999). Specifically,
in the Strategy, 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.'' A primary goal of the Strategy is to achieve a 75 percent
reduction in cancer incidence attributable to HAP emitted from
stationary sources.
    Under CAA section 112(d)(5), we may elect to promulgate standards
or requirements for area sources ``which provide for the use of
generally available control technologies or management practices (GACT)
by such sources to reduce emissions of hazardous air pollutants.''
Additional information on GACT is found in the Senate report on the
legislation (Senate Report Number 101-228, December 20, 1989), which
describes GACT as:

    * * * methods, practices and techniques which are commercially
available and appropriate for application by the sources in the
category considering economic impacts and the technical capabilities
of the firms to operate and maintain the emissions control systems.

Consistent with the legislative history, we can consider costs and
economic impacts in determining GACT. This is particularly important
when developing regulations, like this one, that may impact many small
businesses, as defined by the Small Business Administration.
    Determining what constitutes GACT involves considering the control
technologies and management practices that are generally available to
the area sources in the source category. We also consider the standards
applicable to major sources in the same industrial sector to determine
if the control technologies and management practices are transferable
and generally available to area sources. In appropriate circumstances,
we may also consider technologies and practices at area and major
sources in similar categories to determine whether such technologies
and practices could be considered generally available for the area
source category at issue. Finally, as noted above, in determining GACT
for a particular area source category, we

consider the costs and economic impacts of available control
technologies and management practices on that category.
    We are promulgating these national emission standards in response
to a court-ordered deadline that requires EPA to issue standards for
categories listed pursuant to section 112(c)(3) and (k) by November 16,
2009 (Sierra Club v. Johnson, no. 01-1537, D.D.C., March 2006).

III. Summary of Changes Since Proposal

    This final rule contains several revisions and clarifications to
the proposed rule made after considering public comments. The following
sections present a summary of the changes to the proposed rule. We
explain the reasons for these changes in detail in the summary of
comments and responses (section V of this preamble).

A. Applicability

    We made several changes to clarify the applicability of this final
rule. Specifically, we have clarified that the final rule does not
include retail and commercial paints and allied products operations
which add and mix pigments to pre-manufactured products per customer
specifications.
    We have revised the definition of ``paints and allied products
manufacturing'' to exclude activities by end users of paints and allied
products to ready those materials for application. We have also revised
the definition of ``paints and allied products manufacturing process''
to exclude weighing, mixing, tinting, blending, diluting, stabilizing,
or any other handling of these paints and allied products to ready
these materials for use by end users.
    Furthermore, we clarified the types of operations by end users that
are not covered by this area source category. An end user is someone
who applies a coating to substrate, similar to the Miscellaneous
Coating Manufacturing major source rule (40 CFR part 63, subpart
HHHHH). The final rule does not apply to activities conducted by end
users of coating products in preparation for application (68 FR 69164,
December 11, 2003). Thus, operations that modify a purchased coating
prior to application at the purchasing facility are not included in the
Paints and Allied Products Manufacturing area source category; this
would apply only if the purchased product is already a coating that an
end user could apply as purchased. The activities and operations
described above are not subject to today's rule because they were not
part of the listed source category under CAA section 112(c)(3).
    In the proposed rule, we proposed that the affected source include
the entire facility if the facility emitted any of the paints and
allied products manufacturing target HAP. Specifically, under the
proposal, all process vessels at the facility would be subject to the
standards if any emissions source at the facility emitted one of the
paints and allied products manufacturing target HAP. \3\ After
consideration of public comments, we modified the scope of
applicability of this final rule, and we made several changes to
clarify the applicability provisions. The most significant change is
that only process vessels that emit one or more of the target HAP are
subject to the rule.
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    \3\ In this preamble, we use the term ``target HAP'' to mean the
urban HAP for which the paints and allied products manufacturing
source category is listed under section 112(c)(3). Those HAP are
benzene, methylene chloride, and compounds of cadmium, chromium,
lead, or nickel. Further, the regulations define ``materials
containing HAP'' to mean a material containing any of the target HAP
in amounts greater than or equal to 0.1 percent by weight, as shown
in formulation data provided by the manufacturer or supplier. See
63.11607.
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B. Standards and Compliance Requirements

    We have made several changes to the standards for paints and allied
products manufacturing. For the metal HAP standards, we have revised
the requirement to conduct an initial visible emission test by changing
the test method from Method 9 to Method 203C. In addition we have
revised the opacity standard from 5 percent opacity to 10 percent
opacity. We have also removed the requirement to conduct additional
visible emissions tests every six months. Instead, we have added
quarterly Method 22 visible emission observations.
    We have also extended the initial particulate control device
testing date from 60 days to 180 days from the compliance date for an
existing source, and 180 days of start-up of a new system.
    We have removed the requirement to cover all process tanks with a
lid or cover. Instead, only process vessels that contain benzene or
methylene chloride will be required to be covered. In addition, we have
added a provision to allow operators to open any vessel only to the
extent necessary for quality control testing and product sampling,
addition of materials, or product removal.

C. Reporting and Recordkeeping Requirements

    We have revised Sec.  63.11603, ``What are my notification,
reporting, and recordkeeping requirements?'' of this final rule to
revise the submittal dates for the Initial Notification of
Applicability and Notification of Compliance Status reports. We have
extended the initial notification of applicability from 120 days after
publication of the final rule in the Federal Register to 180 days after
publication of the final rule in the Federal Register.

D. Definitions

    We have made several changes to the final rule definitions in Sec.
63.11607, ``What definitions apply to this subpart?'', and have added
definitions for other terms used in this final rule. We added
definitions for construction, dry particulate control device,
responsible official, and wet particulate control device. We have
revised the definition of paints and allied products, paints and allied
products manufacturing, and paints and allied products manufacturing
process.

E. Other

    We corrected several typographical errors that appeared in various
sections of the proposed rule.

IV. Summary of Final Standards

A. Do these standards apply to my source?

    This final rule (subpart CCCCCCC) applies to new or existing paints
and allied products manufacturing operations which are area sources of
one of the target hazardous air pollutants (HAP) and that process, use,
or generate materials containing one or more of the following target
HAP: Benzene, methylene chloride, and compounds of cadmium, chromium,
lead, and nickel. ``Material containing HAP'' is defined in the
regulations as any material that contains benzene, methylene chloride,
or compounds of cadmium, chromium, lead, or nickel, in amounts greater
than or equal to 0.1 percent by weight, as shown by the manufacturer or
supplier, such as in the Material Safety Data Sheet (MSDS) for the
material.
    In the proposed rule, we proposed that the affected source include
the entire facility if the facility processes, uses, or generates any
of the target HAP. Specifically, under the proposed rule, if the
facility processes, uses, or generates any of the target HAP, then they
would be required to control all HAP that is processed, used, or
generated at the facility. In response to comments, we

have revised the final rule to define the affected source as only those
processes that process, use, or generate the target HAP. In the
proposed rule, we proposed that the affected source include the entire
facility if the facility emitted any of the target HAP. Specifically,
under the proposal, all paints and allied products manufacturing
processes at the facility would be subject to the standards if any
emissions source at the facility emitted one of the target HAP. In
response to comments, we narrowed the scope of applicability of this
final rule, and we made several changes to clarify the applicability
provisions. The most significant change is that only those process
units that emit one or more of the target HAP are subject to the rule.
The final rule further specifies that each process vessel that emits
one of the target HAP is subject only to requirements that apply to the
same type of target HAP that triggered applicability, not requirements
for all types of HAP. For example, a process vessel that uses only one
or more target metal HAP (i.e., compounds of cadmium, chromium, lead,
or nickel) is required to control all CAA section 112(b) metal HAP.
Similarly, a process vessel that uses only target volatile HAP (i.e.,
benzene or methylene chloride) is required to control all CAA section
112(b) volatile HAP.
    Paints and allied products manufacturing operations include the
production of paints, inks, adhesives, stains, varnishes, shellacs,
putties, sealers, caulks, and other coatings from raw materials, the
intended use of which is to leave a dried film of solid material on a
substrate. Typically, the manufacturing industries that produce these
materials are described by SIC codes 285 or 289 and NAICS codes 3255
and 3259 and are produced by physical means, such as blending and
mixing, as opposed to chemical synthesis means, such as reactions and
distillation. Paints and allied products manufacturing does not
include: (1) The manufacture of products that do not leave a dried film
of solid material on the substrate, such as thinners, paint removers,
brush cleaners, and mold release agents; (2) the manufacture of
electroplated and electroless metal films; (3) the manufacture of raw
materials, such as resins, pigments, and solvents used in the
production of paints and coatings; and (4) activities by end users of
paints or allied products to ready those materials for application.
Quality assurance and quality control laboratories are not considered
part of a paints and allied products manufacturing process, as they
were not part of the listed paints and allied products source category.
Additionally, the standards do not apply to research and development
facilities, as defined in section 112(c)(7) of the CAA. Quality
assurance and quality control laboratories and research and development
facilities were inadvertently omitted from the proposal, but the final
rule corrects this omission.
    If you have any questions regarding the applicability of this
action 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 of subpart A (General Provisions).

B. When must I comply with these standards?

    All existing area source facilities subject to this rule are
required to comply with the rule requirements no later than December 3,
2012. New sources are required to comply with the rule requirements
upon December 3, 2009 or upon startup of the facility, whichever is
later.

C. What processes does this final rule address?

    There are four general process operations common to the paints and
allied products manufacturing source categories that emit one or more
of the target HAP. These four process operations are: (1) Preassembly
and premix, (2) pigment grinding, milling, and dispersing, (3) product
finishing and blending, and (4) product filling and packaging.
    For premix and assembly, the final rule addresses the target HAP
emissions that are generated during the addition of pigments and other
solid materials to the process or mixing vessels. The preassembly and
premix step involves the collection of raw materials that will be used
to produce the desired coating product. These materials are added to a
high speed dispersion or mixing vessel. The types of raw materials that
are used for solvent-based coatings include resins, organic solvents,
plasticizers, dry pigment, and pigment extenders; water, ammonia,
dispersant, pigment, and pigment extenders are used for water-based
coatings.
    The final rule addresses HAP emissions from pigment grinding,
milling, and dispersing. Pigment grinding or milling entails the
incorporation of the pigment into the paint or ink vehicle to yield
fine particle dispersion. The three stages of this process include
wetting, grinding, and dispersion, which may overlap in any grinding
operation. The wetting agent, normally a surfactant, wets the pigment
particles by displacing air, moisture, and gases that are adsorbed on
the surface of the pigment particles. Grinding is the mechanical
breakup and separation of pigment clusters into isolated particles and
may be facilitated by the use of grinding media such as pebbles, balls,
or beads. Finally, dispersion is the movement of wetted particles into
the body of the liquid vehicle to produce a particle suspension.
    For product finishing and blending, the final rule addresses the
HAP emissions that occur during heat-up losses during operation of the
mixers; surface evaporation during mixing and blending; and the
addition of pigments and other solid materials to the process or mixing
vessels.
    For product filling and packaging, the final rule addresses HAP
emissions from the addition of small amounts of pigments, solids, or
liquids to achieve the required color or consistency of the final
product.

D. What are the emissions control requirements?

    The following is a description of the control requirements for the
paints and allied products manufacturing process described in section
IV.C above. The control requirements only apply when an operation is
being performed at a process vessel that uses materials containing HAP.
As stated earlier, the regulations define ``materials containing HAP''
as a material containing benzene, methylene chloride, or compounds of
cadmium, chromium, lead, and/or nickel, in amounts greater than or
equal to 0.1 percent by weight, as shown in formulation data provided
by the manufacturer or supplier for the material, such as the Material
Safety Data Sheet.\4\ For example, an area source may have two process
vessels, one containing tetrachloroethylene (which is not one of the
target HAP) and the other containing methylene chloride, and, under
this rule, only the process vessel containing methylene

chloride (one of the target volatile HAP) would be part of the affected
source and as such, subject to the process vessel standards.
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    \4\ The CAA section 112(k) inventory was primarily based on the
1990 Toxics Release Inventory (TRI), and that is the case for the
paints and allied products manufacturing area source category as
well. The reporting requirements for the TRI do not include de
minimis concentrations of toxic chemicals in mixtures, as reflected
in the above concentration levels; therefore, the CAA section 112(k)
inventory would not have included emissions from operations
involving chemicals below these concentration levels. See 40 CFR
372.38, Toxic Chemical Release Reporting: Community Right-To-Know
(Reporting Requirements). Accordingly, the scope of the listed
source category is limited to facilities using materials containing
one or more of the target HAP in quantities greater than 0.1
percent.
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1. Standards for Metal HAP Emissions
    This final rule requires owners or operators of all existing and
new affected facilities to operate a particulate control device during
the addition of pigments and other solids that contain compounds of
cadmium, chromium, nickel, or lead, and during the grinding and milling
of pigments and solids that contain compounds of cadmium, chromium,
nickel, or lead.
    Particulate control devices that vent to the atmosphere must be
maintained such that visible emissions from the particulate control
device shall not exceed 10 percent opacity when averaged over a six-
minute period. Affected sources using particulate control devices that
do not vent to the atmosphere are not subject to the requirements of
this rule, as there are no emissions to the atmosphere.
2. Standards for Volatile HAP Emissions
    This final rule requires new and existing affected sources to equip
process and storage vessels that store or process materials containing
benzene or methylene chloride with covers or lids. The covers or lids
can be of solid or flexible construction, provided they do not warp or
move around during the manufacturing process. The covers or lids must
maintain contact along at least 90 percent of the vessel rim and must
be maintained in good condition. Mixing vessels that process or store
materials containing one or more of the target volatile HAP must be
equipped with covers that completely cover the vessel, except for safe
clearance of the mixer shaft. All vessels that store or process
materials containing benzene or methylene chloride must be kept covered
at all times, except for quality control testing and product sampling,
addition of materials, material removal, or when the vessel is empty.
    The final rule requires that leaks and spills of materials
containing benzene or methylene chloride must be minimized and cleaned
up as soon as practicable, but no longer than 1 hour from the time of
detection. Rags or other materials that use a solvent containing
benzene or methylene chloride for cleaning must be kept in a closed
container. The closed container may contain a device that allows
pressure relief but does not allow liquid solvent to drain from the
container.

E. What are the initial compliance requirements?

    To demonstrate initial compliance with this final rule, owners or
operators of affected new or existing sources must certify that they
have implemented all required control technologies and management
practices and that all equipment associated with the processes will be
properly operated and maintained. In addition, a visual emission test
using EPA Method 203C is required to be performed on the particulate
control device on or before the compliance date.

F. What are the continuous compliance requirements?

    This rule requires owners and operators of affected facilities to
inspect the particulate control device annually to check the structural
integrity of the particulate control device, and to perform a visual
emission test using EPA Method 22 on the particulate control device
every 3 months. If visible emissions are observed for two minutes of
the required 5 minute Method 22 observation period, a Method 203C (40
CFR part 51, appendix M) test must be conducted within 15 days of the
time when visible emissions were observed. If the Method 203C test
indicates an opacity greater than 10 percent, you must take corrective
action and retest using Method 203C within 15 days. The owner/operator
will continue to take corrective action and retest each 15 days until a
Method 203C test indicates an opacity equal to or less than 10 percent.
Failure to meet the 10 percent opacity standard is a deviation and must
be reported in your annual compliance report along with the corrective
actions taken.

G. What are the notification, recordkeeping, and reporting
requirements?

    New and existing affected sources are required to comply with
certain requirements of the General Provisions (40 CFR part 63, subpart
A). Each new source is required to submit an Initial Notification no
later than 180 days after initial startup of the operations or June 1,
2010, whichever is later. Existing affected sources must submit the
Initial Notification no later than June 1, 2010. Notification of
Compliance Status reports are required to be submitted according to the
requirements in 40 CFR 63.9 in the General Provisions no later than
June 3, 2013 for existing sources, or no later than 180 days after
initial startup, or by June 1, 2010, whichever is later for new
sources.
    The affected source is required to prepare an annual compliance
certification report. The annual compliance certification report
contains the company name and address, a statement signed by a
responsible official that certifies the truth, accuracy, and
completeness of the certification report, and a statement of whether
the source has complied with all of the relevant standards and other
requirements of this rule. If there are any deviations from the
requirements of this subpart, the facility must submit this annual
compliance certification report with any deviation reports prepared
during the year. The deviation reports must describe the circumstance
of the deviation and the corrective action taken.
    Facilities are also required to maintain all records that
demonstrate initial and continuous compliance with this final rule,
including records of all required notifications and reports, with
supporting documentation; and records showing compliance with
management practices. Owners and operators must also maintain records
of the following, if applicable: Date and results of the particulate
control device inspections; date and results of all visual
determinations of visible emissions, including any follow-up tests and
corrective actions taken; and date and results of all visual
determinations of emissions opacity, and corrective actions taken.

V. Summary of Comments and Responses

    We received a total of 27 comments on the proposed NESHAP from
industry representatives, trade associations, Federal and State
agencies, and the general public during the public comment period.
Sections V.A through V.F of this preamble provide responses to the
significant public comments received on the proposed NESHAP.

A. Applicability

1. General Applicability
    Comment: Several commenters believe that the proposed rule subjects
all retail and commercial paints and allied products operations that
add and mix pigments to pre-manufactured products per customer
specifications to the requirements in this rule. The commenters believe
that this was not the intent of the rule, as demonstrated by the
discussion of the affected number of sources, and economic impacts of
the rule. The commenters suggest that EPA revise its definitions of
``paints and allied products,'' ``paints and allied products
manufacturing,'' and ``paints

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

However, the preamble to the proposed rule (74 FR 26147) stated that
the requirements of the rule would apply when any operation is being
performed that processes, uses, or generates any HAP. EPA intended to
propose regulatory text that required that the rule's requirements
apply when any operation is being performed that processes, uses, or
generates any of the target HAP. The regulatory text in the final rule
has been revised accordingly to state that the control requirements
only apply when the facility is processing, using, or generating any of
the target HAP.
    The commenters requested that the GACT requirements only apply when
the target HAP are being processed, used, or generated. They did not
claim that EPA lacks the authority under Sec.  112(d) of the Clean Air
Act to regulate HAP other than the target HAP, but rather based their
arguments on claims of potential burdens of expanding the rule beyond
the target HAP. However, these commenters did not provide specific
information regarding the potential additional burden to support these
assertions. We believe there may be a minimal increase in the burden
associated with controlling emissions in the instances when a non-
target HAP is being used (without a target HAP also being present).
Facilities that process, use, or generate one or more of the target HAP
must have the required controls in place, and these same controls will
control other metal and/or volatile HAP.
    We did make changes in the final rule to clarify our original
intent that the requirements apply only when a target HAP is processed,
used, or generated. We also further refined this to specify that the
requirement to keep process and storage vessels covered only applies
when the vessel contains target volatile HAP.
    Comment: Several commenters suggested that EPA include an
applicability exemption for process tanks under a prescribed size. The
commenters recommend an exemption for process tanks smaller than 250
gallons, both for consistency with the Miscellaneous Coatings
Manufacturing Maximum Achievable Control Technology (MACT) rulemaking
and to limit burden. One commenter stated that it is more difficult to
install particulate controls on high dispersion process tanks that are
less than 250 gallons and install covers on process tanks less than 250
gallons. In addition, if the 250 gallon threshold is not included,
every ``process tank'' would need to be covered, including very small
containers like 5 gallon containers and 55 gallons drums.
    Another commenter noted that EPA has already determined in other
Part 63 NESHAP regulations (such as the HON in subpart G container
definition at Sec.  63.111) and the RCRA Hazardous Waste Subpart CC
regulations at 40 CFR 264/265.1080(b)(2) that containers of a capacity
less than or equal to 0.1 cubic meters (m[sup3]) produce insignificant
emissions and thus are exempted from the regulations. Additionally, the
commenter stated that the HAP mandated to be regulated should be
specifically listed in order to avoid any confusion.
    Response: From the permit information we obtained for the
rulemaking, we found that 8 out of 30 facilities are required to cover
storage tanks or process vessels that contain VOC or organic solvents
to prevent vaporization of VOCs. In a separate study, the Washington
State Department of Ecology found that the 18 facilities that they
visited or surveyed used lids or covers on all vessels.\5\  The survey
also stated that the use of covers or lids is considered to be a
standard practice by the paint manufacturing industry. Industry
representatives also provided estimates that around 90-95 percent of
facilities use covers on their process and storage tanks to prevent
product loss; these data do not provide any information on tank size.
---------------------------------------------------------------------------

    \5\ Paint and Coatings Manufacturing Sector, Pollution
Prevention Assessment and Guidance, Washington State Department of
Ecology, Hazardous Waste and Toxics Reduction Program, Publication
98-410, Revised November 2002.
---------------------------------------------------------------------------

    None of the information that we found limited the use of lids or
covers to the size of the tank. Therefore, we believe it is appropriate
to require the use of lids or covers on all process and storage tanks
that contain one or more of the target HAP, regardless of the size of
the tank. The commenters did not provide any information to explain why
covering a process tank of less than 250 gallons is burdensome. The
commenters also provided no information to support adopting different
requirements for smaller process tanks, nor do they provide any
information explaining that process tank covers for the smaller tanks
are not generally available control technology. The volatile HAP to be
controlled are listed at Sec.  63.11599(3).
3. Pollution Prevention Alternative Exemption
    Comment: The commenters stated that a facility should be able to
``opt out'' of this rule in the future if the facility eliminates the
processing, use, production or generation of the target HAP; otherwise,
there is no incentive for coatings manufacturers or their raw material
suppliers to move away from these HAP. Additionally, several commenters
stated that facilities that do reformulate or cease producing a certain
product that subjected them to the rulemaking in the first place will
be mandated to continue to operate costly and energy-consuming control
equipment (e.g., particulate controls) for no environmental benefit.
The facility's continued recordkeeping and reporting would be
additional cost and burden.
    One commenter believes that EPA's 1995 ``once in/always in'' policy
applies to major sources subject to MACT standards and would not apply
to this area source regulation. The commenter requested that EPA
officially confirm that this policy does not apply to this final
rulemaking and/or facilities that no longer use the target HAP after
the date of implementation have the ability to opt-out of the rule.
    Response: The comment concerning the ``once in/always in'' policy
is not relevant to this rule. The regulated entities subject to this
rule include the owner/operator of a facility that performs paints and
allied products manufacturing is an area source of HAP emissions and
processes, uses, or generates materials containing the following target
HAP: Benzene, methylene chloride, and compounds of cadmium, chromium,
lead, or nickel. If a facility that was covered under the rule
discontinues processing, using, or generating the target HAP through
pollution prevention practices or otherwise, then that facility is no
longer covered by the rule. However, should the same facility reinstate
processing, using or generating the target HAP, it would once again be
subject to the requirements of this rule, including notification,
recordkeeping, and reporting. Additionally, terminating use of the
target HAP would require submittal of a report pursuant to Sec.
63.9(j) and also require maintenance of the record as required by Sec.
63.1(b)(3).

B. Compliance/Implementation Dates

    Comment: Two commenters state that Sec.  63.11603(a)(1) requires
existing sources to notify EPA within 60 days of publication of the
final rule, and for new sources within 60 days of startup. The
commenters state that the notification of Compliance Status found in
Sec.  63.11603(a)(2) requires that all sources report on their
compliance status within 120 days of their respective compliance date.
The commenters recommended that the deadlines be changed to 180 days in
all cases, to provide time for small sources to comply and to be
consistent with other similar Federal rules.

    Response: We agree with the commenters that because most of the
affected facilities are small businesses, and some might be complying
with EPA regulations for the first time, they should be provided
additional time to comply with the requirements. Per the General
Provisions, we have pushed back the initial notification date to 120
days from the date of publication of the final rule. The compliance
date is 180 days from the date of publication of the final rule.

C. De Minimis Thresholds and Subcategorization

1. De Minimis Thresholds
    Comment: Several commenters suggest that EPA exempt small paints
and allied products manufacturing facilities from the final regulation.
The commenters propose using a de minimis level of 100 lbs/year of one
or more of the target HAP. The commenters claim that sources with lower
emissions levels were not included in the 1990 baseline emissions
inventory. Another commenter suggests a mass-based de minimis level of
2.0 Megagrams (2.2 tons per year) for target HAP that are processed,
used, produced, or generated. Alternatively, commenters suggested
subcategorization of the source category into ``small emission'' and
``large emission'' facilities based on a 100 lb/year HAP actual
emission threshold, and then exempting the small emission subcategory
from all requirements.
    The commenters claim that EPA has provided de minimis exemptions in
previous area source rules, including Clay Ceramics, Glass
Manufacturing, and the Benzene NESHAP for Waste Operations. One
commenter states that precedence for a de minimis threshold (beyond the
Occupational Safety and Health Administration (OSHA) de minimis
threshold) is established in earlier NESHAP rulemakings, where EPA
determined that the use of coatings containing urban air toxics below
certain thresholds do not negatively impact human health and the
environment. Specifically, the commenter notes that in the Clay
Manufacturing Area Source Rule, EPA included an applicability de
minimis based on the argument that emissions from facilities with
annual production of less than 50 tons/year were not included in the
1990 baseline emissions inventory that was used in the basis for the
area source category listing. The commenter states that only those
above the 50 ton/year threshold were in the basis for listing, so only
those facilities are covered by the rule. The commenter believes the
same is true for the paints and allied products manufacturing rule.
Other commenters stated that state rules for paints and allied products
manufacturing contain de minimis thresholds that exclude lower volume
production facilities, waterborne production facilities, and small
process tanks. The commenters state that since EPA can look to state
regulations as part of the GACT analysis, EPA has the authority to
adopt a 100 lb/year emission de minimis threshold. Several commenters
believe that without a de minimis emission threshold, a facility that
relies on a supplier MSDS may find itself out of compliance if, for
example, a supplier reports a new trace metal constituent on the MSDS.
The commenters note that the metals of concern are often contaminants
in purchased raw materials. The commenters note that if the supplier's
raw material source changes and the supplier's analysis begins to show
higher traces of a metal, a manufacturer would be out of compliance
upon receiving this new MSDS, even though no reportable emissions of
the metal have occurred.
    Response: EPA does not believe it is appropriate to establish a de
minimis threshold exempting sources emitting less than 100 lb/year of
the target HAP, or sources processing, using, or producing less than
2.0 Megagrams (2.2 tons per year) of the target HAP from the final
regulations. Section 112(c)(3) requires that EPA list categories or
subcategories of area sources sufficient to ensure that area sources
representing 90 percent of the area source emissions of the 30 HAP that
present the greatest threat to public health in the largest number of
urban areas are regulated. EPA listed the Paints and Allied Products
Manufacturing area source category in 2002 as one of the categories
needed to ensure that 90 percent of such area source emissions are
regulated. The listed source category included sources emitting less
than 100 lbs/year of the target HAP for the Paints and Allied Products
Manufacturing source category. Therefore, were EPA to exempt those
sources from regulation, the statutory requirement to regulate area
sources representing 90 percent of area source emissions of the urban
HAP would not be met. For this reason, EPA does not believe a de
minimis exemption would be appropriate. The rules commenters cite where
de minimis thresholds were established were issued under section
112(d)(2) for major sources (i.e., MACT standards), not for area
sources under section 112(d)(5). Therefore, those major source
categories were not part of the list of source categories established
to meet EPA's obligation under section 112(c)(3). Further, commenters'
claims that EPA established de minimis exemptions in several area
source rules are incorrect. In these rules, after examining the record
on which the initial listing was based, EPA clarified the scope of the
listed source category. Contrary to commenters' assertion, EPA did not
create any exemptions in those rules. For example, in the case of Clay
Ceramics, EPA stated:

    ``With this action, we are also clarifying that artisan potters,
small ceramics studios, noncommercial entities, and schools and
universities with ceramic arts programs, which typically have annual
production rates of 45 Mg/yr (50 tpy) or less, are not a part of the
source category listed pursuant to section 112(c)(3) and (k)(3)(B),
and are, therefore, not covered by this area source standard. Urban
HAP emissions from these facilities were not included in the 1990
baseline emissions inventory that was used as the basis for the area
source category listing.''

EPA set standards in each of the area source rules cited above for all
sources that were part of the listed source category to meet the
statutory obligation in section 112(d)(3) to regulate sources
representing 90 percent of area source emissions of the urban HAP. EPA
also notes that the commenter's reference to state law requirements is
irrelevant. EPA is required to establish area source standards pursuant
to the requirements of section 112(d), and cannot create exemptions to
those standards based on state law requirements.
    Finally, commenters are concerned that without a de minimis
emission threshold, a facility that relies on a MSDS may find itself
out of compliance if a raw material source changes and the supplier's
analysis begins to show higher traces of a metal, and those higher
levels are not reflected on the MSDS. The CAA section 112(k) inventory
was primarily based on the 1990 Toxics Release Inventory (TRI), and
that is the case for the paints and allied products manufacturing area
source category as well. The reporting requirements for the TRI do not
require reporting of de minimis concentrations of toxic chemicals in
mixtures, as reflected in the above concentration levels; therefore,
the CAA section 112(k) inventory would not have included emissions from
operations involving chemicals below these concentration levels. See 40
CFR 372.38, Toxic Chemical Release Reporting: Community Right-To-Know
(Reporting Requirements). Accordingly, the scope of the listed source
category is limited

to facilities using materials containing one or more of the target HAP
in quantities greater than 0.1 percent.
    In addition, EPA believes the regulations as proposed adequately
address the commenters' concern regarding reliance on the MSDS. For
facilities that rely on a supplier MSDS, the manufacturer would only be
out of compliance if the materials containing one or more of the target
HAP greater than 0.1 percent are used in the process, without the
required controls in place. Therefore, a manufacturer would be required
to submit the appropriate forms if the manufacturer intends to use the
material containing HAP greater than 0.1 percent by weight in the
manufacturing process. Commenters provide no evidence to indicate that
MSDS from suppliers will be inaccurate and will result in noncompliance
with the regulation.
2. Subcategorization
    Comment: One commenter states that the legal basis for EPA's
subcategorization of the Paints and Allied Products Manufacturing area
source category into large and small facilities is well established.
The commenter asserts that section 112(d)(1) of the Clean Air Act
provides that EPA ``may distinguish among classes, types, and sizes
within a source category or subcategory in establishing such
standards.'' 42 U.S.C. 7412(d)(1). The commenter also notes that the
Clean Air Act supports an EPA determination that work practice
standards and general management practices constitute GACT for small
Paints and Allied Products Manufacturing sources.
    According to the commenter, a review of the commenter's internal
data show significant differences between larger and smaller facilities
based on production levels, matching EPA estimates that the metal HAP
emissions for a typical ``small emission'' area source facility are
only about 10 percent of the level of emissions for a typical ``large
emission'' area source facility.
    The commenter states that in the area source rule for Chemical
Manufacturing, EPA evaluated impacts for two groupings or subcategories
for metal HAP and considered a threshold because of an observed
difference in operation depending on the emission rate. The commenter
further notes that EPA realized that there was a difference between
facilities with higher HAP emissions that manufactured products
containing HAP as an intended part of the product, and a majority of
facilities with low emissions where the HAP originated from impurities
in raw materials. The commenter believes there is a similar observed
difference in operations depending on the emission rate for the paints
and allied products manufacturing industry as well. The commenter
states that facilities with actual emissions of paints and allied
products manufacturing metal HAP (cadmium, chromium, nickel and lead)
above 100 lb/yr produce products that contain the HAP as an intended
part of the product. The commenter also asserts that EPA has the
discretion to create subcategories of area sources, and that EPA should
do so in the paints and allied products manufacturing rule based on
cost considerations, as well as differing industry practices and
processes.
    The commenter claims that two of the management practices EPA
proposed to identify as GACT are used frequently: (1) Sweeping/
cleaning, and (2) purchasing only materials that are free (to the
greatest extent possible) of HAP metals. Of the particulate matter (PM)
control technologies EPA proposed as GACT, the commenter claims that
large paints and allied products manufacturing facilities frequently
use baghouses to reduce PM/HAP emissions, while smaller (less than 100
lb/year emission) facilities most often do not. The commenter also
states that the consideration of costs and economic impacts is
especially important for determining GACT for small paints and allied
products manufacturing facilities because, given their extremely low
level of HAP emissions, requiring additional controls would result in
only marginal reductions in emissions at very high costs for modest
incremental improvement in control.
    Response: EPA does not believe that subcategories in the Paints and
Allied Products Manufacturing area source category are warranted. In
particular, EPA has no information demonstrating that paints and allied
products manufacturing facilities that emit more than 100 lbs/year of
HAP are of a different class, type, or size than similar facilities
with lower emissions. In contrast, in the Chemical Manufacturing Area
Source rule, EPA had information to support a conclusion that
facilities above a certain total resource effectiveness value had
different continuous process vents than facilities below that TRE
value. See 73 FR 58352, 58364-65 (Oct. 6, 2008). We do not have any
such information for the Paints and Allied Products Manufacturing
source category. Absent such a demonstration, the Agency has no basis
to support subcategorizing facilities with higher emissions from those
with lower emissions. Further, while the commenters assert that larger
facilities use baghouses while smaller ones do not, the commenter
provided no data or information to support this assertion, and EPA has
no data or information to substantiate this claim.

D. Emission Standards and Management Practices

1. Generally Available Control Technology
    Comment: One commenter stated that, as described in Sec.
112(k)(1), the purpose of the area source program is to ``achieve a
substantial reduction in emissions of hazardous air pollutants from
area sources and an equivalent reduction in the public health risks
associated with such sources * * *.'' 42 U.S.C. 7412(k)(1). For area
sources, EPA may set either MACT standards, or alternative standards
(sometimes referred to as ``GACT'' standards) that ``provide for the
use of generally available control technologies or management practices
* * * to reduce emissions of hazardous air pollutants.'' 42 U.S.C.
7412(d)(5).
    The commenter stated that EPA provides no explanation for its
decision to issue GACT standards instead of MACT standards for the
Paints and Allied Products Manufacturing area source category.
    Response: As the commenter recognizes, in CAA section 112(d)(5),
Congress gave EPA explicit authority to issue alternative emission
standards for area sources. Specifically, CAA section 112(d)(5), which
is entitled ``Alternative standard for area sources,'' provides:

    With respect only to categories and subcategories of area
sources listed pursuant to subsection (c) of this section, the
Administrator may, in lieu of the authorities provided in paragraph
(2) and subsection (f) of this section, elect to promulgate
standards or requirements applicable to sources in such categories
or subcategories which provide for the use of generally available
control technologies or management practices by such sources to
reduce emissions of hazardous air pollutants.

See CAA section 112(d)(5) (Emphasis added).
    There are two critical aspects to CAA section 112(d)(5). First, CAA
section 112(d)(5) applies only to those categories and subcategories of
area sources listed pursuant to CAA section 112(c). The commenter does
not dispute that EPA listed the area source category noted above
pursuant to CAA section 112(c)(3). Second, CAA section 112(d)(5)
provides that, for area sources listed pursuant to CAA section 112(c),
EPA ``may, in lieu of'' the authorities provided in CAA section
112(d)(2) and 112(f), elect to promulgate standards pursuant to CAA
section 112(d)(5). CAA

Section 112(d)(2) provides that emission standards established under
that provision ``require the maximum degree of reduction in emissions''
of HAP (also known as MACT). CAA section 112(d)(3), in turn, defines
what constitutes the ``maximum degree of reduction in emissions'' for
new and existing sources. See CAA section 112(d)(3).\6\ Webster's
dictionary defines the phrase ``in lieu of'' to mean ``in the place
of'' or ``instead of.'' See Webster's II New Riverside University
(1994). Thus, CAA section 112(d)(5) authorizes EPA to promulgate
standards under CAA section 112(d)(5) that provide for the use of GACT,
instead of issuing MACT standards pursuant to CAA section 112(d)(2) and
(d)(3). The statute does not set any condition precedent for issuing
standards under CAA section 112(d)(5) other than that the area source
category or subcategory at issue must be one that EPA listed pursuant
to CAA section 112(c), which is the case here.\7\
---------------------------------------------------------------------------

    \6\ Specifically, CAA section 112(d)(3) sets the minimum degree
of emission reduction that MACT standards must achieve, which is
known as the MACT floor. For new sources, the degree of emission
reduction shall not be less stringent than the emission control that
is achieved in practice by the best controlled similar source, and
for existing sources, the degree of emission reduction shall not be
less stringent than the average emission limitation achieved by the
best performing 12 percent of the existing sources for which the
Administrator has emissions information. CAA Section 112(d)(2)
directs EPA to consider whether more stringent emission reductions
(so called beyond-the-floor limits) are technologically achievable
considering, among other things, the cost of achieving the emission
reduction.
    \7\ CAA Section 112(d)(5) also references CAA section 112(f).
See CAA section 112(f)(5) (entitled ``Area Sources'' and providing
that EPA is not required to conduct a review or promulgate standards
under CAA section 112(f) for any area source category or subcategory
listed pursuant to CAA section 112(c)(3), and for which an emission
standard is issued pursuant to CAA section 112(d)(5)).
---------------------------------------------------------------------------

    We disagree with the commenter's assertion that we must provide a
rationale for issuing GACT standards under section 112(d)(5), instead
of MACT standards. Had Congress intended that EPA first conduct a MACT
analysis for each area source category, Congress would have stated so
expressly in section 112(d)(5). Congress did not require EPA to conduct
any MACT analysis, floor analysis or beyond-the-floor analysis before
the Agency could issue a section 112(d)(5) standard. Rather, Congress
authorized EPA to issue GACT standards for area source categories
listed under section 112(c)(3), and that is precisely what EPA has done
in this rulemaking.
    Although EPA need not justify its exercise of discretion in
choosing to issue a GACT standard for an area source listed pursuant to
section 112(c)(3), EPA still must have a reasoned basis for the GACT
determination for the particular area source category. The legislative
history supporting section 112(d)(5) provides that GACT is to
encompass:

    ``* * * methods, practices and techniques which are commercially
available and appropriate for application by the sources in the
category considering economic impacts and the technical capabilities
of the firms to operate and maintain the emissions control
systems.''

The discussion in the Senate report clearly provides that EPA may
consider costs in determining what constitutes GACT for the area source
category. Congress plainly recognized that area sources differ from
major sources, which is why Congress allowed EPA to consider costs in
setting GACT standards for area sources under section 112(d)(5), but
did not allow that consideration in setting MACT floors for major
sources pursuant to section 112(d)(3). This important dichotomy between
section 112(d)(3) and section 112(d)(5) provides further evidence that
Congress sought to do precisely what the title of section 112(d)(5)
states, i.e., provide EPA the authority to issue ``alternative
standards for area sources.''
    Notwithstanding the commenter's claim, EPA properly issued
standards for the area source categories at issue here under section
112(d)(5), and in doing so provided a reasoned basis for its selection
of GACT for these area source categories. As explained in the proposed
rule, EPA evaluated the control technologies and management practices
that reduce HAP emissions at paints and allied products manufacturing
facilities, including those at both major and area sources. In its
evaluation, EPA used information on pollution prevention from industry
trade associations, and reviewed operating permits to identify the
emission controls and management practices that are currently used to
control volatile and particulate HAP emissions. We also considered
technologies and practices at major and area sources in similar
categories.
    Finally, even though not required, EPA did provide a rationale for
why it set a GACT standard in the proposed rule. In the proposal, we
explained that the facilities in the source categories at issue here
are already well controlled for the urban HAP for which the source
category was listed pursuant to section 112(c)(3). Consideration of
costs and economic impacts proves especially important for the well-
controlled area sources at issue in this final action. Given the
current, well-controlled emission levels, a MACT floor determination,
where costs cannot be considered, could result in only marginal
reductions in emissions at very high costs for modest incremental
improvement in control for the area source category.
2. Metal HAP Standards
    Comment: One commenter states that although particulate control
devices are generally available, EPA has not adequately supported its
proposal to set an opacity standard rather than a particulate matter
standard. The commenter notes that EPA acknowledged that most of the
State operating permits for facilities in this category impose a
``concentration or mass emission particulate limit that requires
testing using an appropriate particulate test method, in most cases EPA
Method 5.'' The commenter says that EPA rejected this widespread
approach of a concentration or mass emission limit, instead adopting
opacity as a surrogate for assessing mass emissions. The commenter
states that EPA failed to demonstrate that the use of opacity as a
surrogate is sufficient to achieve the levels of reduction that are
already imposed by the State operating permits that rely on particulate
testing. The commenter says that EPA's reliance on a 1991 study of
benefits of opacity monitors applied to Portland Cement Kilns was
unpersuasive. The commenter also notes that in the recently proposed
NESHAP for the Portland Cement Manufacturing Industry, EPA rejected the
use of an opacity standard, stating that ``we do not believe that
opacity is an accurate indicator of compliance with the proposed PM
emissions limit.''
    Another commenter notes that there is no definition of capture or
control efficiency in the proposed rule. The commenter recommends that
EPA consider implementing capture and control system efficiencies
parallel to those in the NESHAP for Nine Metal Fabrication and
Finishing Sources (40 CFR part 63, subpart XXXXXX). In this rule, the
commenter states that the term ``adequate emissions capture methods''
is defined in Sec.  63.11522 to include ``* * * drawing greater than 85
percent of the airborne dust generated from the process into the
control device.'' The commenter continues by saying that the Metal
Fabrication and Finishing NESHAP requires spray paint booths to be
fitted with PM filter technology that is ``* * * demonstrated to
achieve at least 98 percent capture. * * *''
    Response: As the commenter pointed out, particulate control devices
were determined to be GACT for the control of the particulate HAP
emissions. Based on the existing operating permit

requirements for paints and allied products manufacturing, we found a
variety of formats and units, e.g., percent opacity, allowable PM or
PM10 emission rates (pounds per hour or tons per year), and
outlet concentrations (grains per dry standard cubic foot (gr/dscf)).
We evaluated GACT for these format options and determined that an
opacity limit was the most appropriate selection. As discussed below,
there are cost and technical issues associated with demonstrating
compliance with a PM numerical emission limit or a percent reduction
standard, such that they do not constitute GACT for this source
category.
    As was stated in the proposal, we had concerns with the economic
impact of particulate matter testing on the affected facilities, many
being small businesses. A typical EPA Method 5 PM emissions test used
for an emission limit or a percent reduction standard would cost
between $3,000 and $10,000, while the cost of performing a Method 203C
test is approximately $2,000, assuming an off-site contractor conducts
the test.\8\ In addition, the manufacture of paints and allied products
is a batch process. The addition of pigments and solids, when the
particulate control device would need to operated, can be completed in
minutes, whereas the typical Method 5 test is run for sixty minutes.
This presents technical issues with stopping and starting the Method 5
test method in order to capture a representative sample of the
particulate emissions from the particulate control device during the
addition of pigments and solids. Based on these cost and technical
issues, we determined that an opacity standard would minimize the
economic burden on the facilities covered by this rule while still
ensuring that the particulate control device is well-designed and
operated.
---------------------------------------------------------------------------

    \8\ Revision of Source Category List for Standards Under Section
112(k) of the Clean Air Act; and National Emission Standards for
Hazardous Air Pollutants for Area Sources: Ferroalloys Production
Facilities, September 15, 2008.
---------------------------------------------------------------------------

    EPA's statements in the May 6, 2009 proposed amendments for the
Portland Cement NESHAP (74 FR 211360) are not relevant here. Our
statements in that proposal were in relation to the use of an
alternative opacity standard to demonstrate compliance with a numeric
PM limit. In contrast, in the Paints and Allied Products Manufacturing
area source NESHAP the opacity limit is not used to demonstrate
compliance with a numeric PM limit. The opacity limit established in
this rule is a standard and not a surrogate for particulate matter. The
statements in the Portland Cement proposal did not question the use of
an opacity limit for the specific purpose for which EPA is adopting
such a limit in today's action. Therefore, we believe our decision to
establish GACT as the requirement to capture and route PM emissions to
a control device that achieves a specified opacity is warranted. This
format is retained in the final rule.
    In summary, we believe the requirement to capture and route PM
emissions to a control device that achieves a specified opacity limit
is GACT. This technology is generally available, and opacity is a
reasonable and effective means of ensuring that the control device is
functioning correctly and achieving emission reductions.
    Comment: EPA proposed that new and affected sources must capture
particulate emissions and route them to a particulate control device
during the addition of pigments and other solids and during the
grinding and milling of solids. Two commenters agree with EPA that,
after the addition processes, the pigments and associated metal HAP are
in solution and emissions are minimal. Two commenters question whether
particulate controls are needed during the grinding and milling stage,
which occurs after the addition process when the pigments are in
solution. One of the commenters notes that often grinding and milling
equipment is fully enclosed, and there are typically no HAP emissions
from the process. Two commenters suggest that particulate controls only
be required when pigments and solids are added to the high speed
dispersion tanks.
    Response: There are a number of different milling and grinding
methods and equipment that are used in the paints and allied products
manufacturing industry. As the commenters note, many grinding and
milling processes are fully enclosed and typically do not emit HAP from
this process. In addition, there are minimal HAP emissions from the
grinding and milling processes that occur when the pigments are in
solution. Therefore, the final rule has been revised to provide three
additional compliance options other than the use of a particulate
control device. A particulate control device must be used during the
addition of dry pigments or other dry materials that contain HAP to the
grinding and milling equipment. However, the use of pigments or
materials that contain HAP in paste, slurry, or liquid form instead of
in dry form is an alternative means of compliance for this area source
rule. In addition, fully enclosing the grinding and milling equipment
is a second alternative means of compliance, in lieu of using a
particulate control device. In addition, the requirements of the rule
are satisfied if the pigments and solids that contain HAP in the
grinding and milling equipment are in solution. These revisions do not
change the intent of the rule, which is to reduce HAP emissions; in the
case of each of these revisions, minimal HAP are emitted. In other
words, we are not requiring use of a particulate control device during
periods when alternative compliance methods will ensure that
particulate emissions will be controlled. Each of these compliance
alternatives will achieve at least as much reduction of emissions of
the target HAP as will use of a particulate control device. Therefore,
we believe that these revisions address the commenters' concerns
because use of a particulate control device is not required if a
facility does not have any metal HAP emissions, whether it is because
the metal HAP is in paste, liquid, or slurry form during grinding and
milling or because a facility is not venting emissions to the
atmosphere.
    We agree with the commenter that particulate controls should be
used during the addition of solid materials that contain HAP to high
speed dispersion.
    Comment: Several commenters object to the 5 percent opacity limit.
One of the commenters states that most paint facilities with
particulate controls do not have opacity limits, and for those
facilities that do, the existing limits are not as stringent as the
proposed 5 percent opacity limit. Based on the operating permit
information in the docket, the commenter believes that EPA's proposal
of 5 percent is arbitrary and indicated that based on real-world
experiences; they stated that 30 percent opacity is more realistic. Two
of the commenters note that only three of the 44 facilities evaluated
for this rulemaking had a 5 percent opacity requirement. The commenters
indicate that the remaining facilities have opacity requirements of 20
percent or greater. Given these facts, the two commenters believe that
an opacity standard of 20 percent would be more in line with what is
intended by GACT. One commenter reviewed the 44 operating permits in
the docket for this rulemaking and found that only 3 had a 5 percent
opacity limit; 11 had a 20 percent limit, 2 had 30 percent limit, 13
had 40 percent limit, and 2 had an observed or no opacity limit. The
commenter states that since this rule is governed by GACT, EPA is
obligated to determine the control and work practices that are most
commonly used or that are most prevalent. The commenter maintains that
EPA has not

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

tight-fitting stainless steel lids, elasticized plastic ``shower
caps,'' and plywood covers. The 90 percent cover requirement is
designed to remove any uncertainty about whether a vessel is adequately
covered, for both the facility manager and the enforcement personnel.
Therefore, the 90 percent cover requirement is included in the final
rule.

E. Testing, Monitoring, and Inspection Requirements

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

defined in a written management plan developed and implemented by the
coatings manufacturer employing the system. The commenter says that
this graduated type of approach to inspection frequency and the
management plan requirement to define the details of the inspection
parameters as proposed in the preceding paragraphs has been used in the
area source NESHAP for Nine Metal Fabrication and Finishing Sources.
The commenter states that this approach would provide a viable means to
both assure ongoing compliance while minimizing the burden of
compliance on the source.
    Response: We believe that it is important that regular inspections
be conducted to ensure that the integrity of both the capture system
and the control device is maintained, and we agree with the commenters
in regard to the inspections of the rigid ductwork. Therefore, we have
clarified in the final rule that the rigid, stationary portions of the
ductwork only need to be inspected annually. Because the particulate
control system operates infrequently, we believe annual inspections of
the rigid, stationary ductwork is sufficient to ensure the integrity of
the particulate control system. However, we do believe that inspection
of flexible ductwork needs to be conducted more frequently. Therefore,
we retained the weekly inspection requirement for hoods and flexible
ductwork in the final rule. We do not agree with the one commenter who
states that the best approach is to establish the inspection frequency
in site-specific plans. Site-specific plans create additional reporting
burdens for small businesses. In addition, site-specific plans may not
provide the periodic inspections that are needed to ensure that the
particulate control device is operating properly. Therefore, we believe
that the revised inspections will provide the insurance that the
particulate control device is operating properly, while reducing the
burden on the facility.
    We agree that continuous monitoring of pressure drop can be used to
ensure that the control system is operating properly; however, we also
believe that the combination of the system integrity inspections and
the visual emissions monitoring (discussed below) are sufficient for
the source category and at a lower cost than installing, calibrating,
and operating a continuous monitoring system (CMS). Inspections and
visible emissions monitoring of the particulate control device system
provide data indicative of a well-operated and maintained control
device. The inspections will ensure there are no leaks in the duct
work, while the visible emissions monitoring will ensure that the
particulate control device is operating as intended, and that no excess
emissions are emitted. Many of the paints and allied products
manufacturing facilities are small businesses, and incorporating a
continuous monitoring system would create an economic hardship on many
of these businesses. Therefore, we have not incorporated the
commenter's suggestion to require continuous monitoring of pressure
drop. We also reviewed the graduated type of inspections and monitoring
outlined in the NESHAP for Nine Metal Fabrication and Finishing Sources
and believe that this type of inspection and monitoring program is not
appropriate for the paints and allied products industry. Many of the
nine metal fabrication and finishing facilities require continuous
operation of the particulate control device. In contrast, the majority
of paint and allied products are produced in batches and the operation
of the particulate control device is expected to be intermittent.
Therefore, we believe that the proposed inspection and monitoring
requirements for the paints and allied products manufacturing industry
are appropriate.
    While the proposed rule included inspection requirements, it did
not contain any provisions regarding required actions if problems were
found during an inspection. We agree that such a requirement is needed
to ensure that corrective action will be taken promptly. Therefore, we
have incorporated the commenter's suggestion to require that corrective
action be initiated as soon as practicable to mitigate any problems
when system integrity is compromised and that the identified problem be
fully corrected and documented within 15 days of first discovery.

F. Reporting and Recordkeeping Requirements

1. Compliance Certification
    Comment: The commenters note that there seems to be conflict
between Section 63.11603(b), which requires the development and
retention of compliance certifications and the development, retention,
and submission of deviation reports when deviations from the
requirements of the rule exist or have existed. Section III.E of the
preamble requires that a responsible official sign off that all the
requirements were met in the preceding month within 15 days of the end
of each month. Two commenters recommend that the required records
suffice in demonstrating compliance. Another commenter believes that
the submission of a deviation report and annual certification when
deviations have occurred during a calendar year will assist regulated
entities in maintaining compliance and will assist the regulatory
agencies in compliance oversight.
    Response: We do not believe that a conflict exists between the
compliance certification requirements and the deviation reports. The
compliance certifications of section 63.11603(b) are the baseline
requirement to demonstrate ongoing compliance with the standard.
However, if a deviation occurs during the previous twelve month period,
the facility must prepare and submit a deviation report, which details
the specific area(s) of noncompliance with the standard and efforts
undertaken to return the source to compliance. These are two separate
requirements, and the latter applies in the event of a deviation.
Submission of the deviation report is necessary so that the regulatory
agency remains apprised of the ongoing compliance status of the
facility and can focus their compliance assistance and enforcement
response efforts.
    However, we believe that section Sec.  63.11603(b)(2)(ii), which
requires that a statement in accordance with Sec.  63.9(h) of the
General Provisions to be signed by a responsible official, is
sufficient to ensure compliance with the regulations, and that no
additional requirement that a responsible official must certify that
all requirements were met in a particular month by the 15th day of the
following month is necessary. Therefore, the final rule does not
include the latter certification requirement.
    These revisions mean that a responsible official must annually
certify that all requirements have been met. We believe that the annual
certification by the responsible official is sufficient to ensure that
the facility has complied with all of the requirements throughout the
year, and that the additional burden of monthly certification is not
warranted. In addition, we agree with the commenter that the submission
of an Annual Compliance Certification and Deviation Report from
facilities where deviations have occurred during the calendar year will
assist regulated entities in maintaining compliance and will assist the
regulatory agencies in compliance oversight.
    Comment: The commenter notes that some facilities have older
particulate control devices, which while still effective, may not have
manufacturer information available. The commenter states that sources
should not be prohibited from using these control

devices if they meet the emission standards of this subpart, even
though they no longer have the original paperwork for the device. The
commenter recommends that if the original records are not available,
the source should follow best operating practices for the devices.
    Response: We recognize that some facilities may not have, and may
not be able to obtain, the manufacturer's instructions, despite their
best efforts. Therefore, we agree with the commenter and will remove
the reference to the manufacturer's instructions in Sec.
63.11602(a)(2)(iii) and also remove Sec.  63.11603(c)(3).

G. Baseline Emissions and Emission Reductions

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

being finalized today will ensure that future emissions from paints and
allied products manufacturing operations will be limited to the same
level that is being generally achieved today and was determined to be
GACT. Without such regulations, there is nothing that would limit
future target HAP emissions from a new paint or allied product
manufacturing product.

H. Title V Requirements

    Comment: The commenter supports EPA's proposed rule in the
exemption of the Paints and Allied Products Manufacturing area source
category from Title V permitting requirements. The commenter believes
that the proposed recordkeeping and reporting requirements are
sufficient to determine compliance with the rule, and EPA should
balance these requirements against the level of resources typically
present at such smaller sites and the expected amount of emission
reductions associated with these requirements.
    Another commenter states that to demonstrate that compliance with
title V would be ``unnecessarily burdensome,'' EPA must show, inter
alia, that the ``burden'' of compliance is unnecessary. According to
the commenter, by promulgating title V, Congress plainly indicated that
it viewed the burden imposed by its requirements as necessary as a
general rule. The commenter says that these requirements provide many
benefits that Congress clearly viewed as necessary. Thus, continues the
commenter, EPA must show why for any given category, special
circumstances make compliance unnecessary. The commenter maintains that
EPA has not made that showing for any of the categories it proposes to
exempt.
    Response: EPA does not agree with the commenter's characterization
of the demonstration required for determining that title V is
unnecessarily burdensome for an area source category. As stated above,
the CAA provides the Administrator discretion to exempt an area source
category from title V if she determines that compliance with title V
requirements is ``impracticable, infeasible, or unnecessarily
burdensome'' on an area source category. See CAA section 502(a). In
December 2005, in a national rulemaking, 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''). In addition to interpreting the term
``unnecessarily burdensome'' and developing the four-factor balancing
test in the Exemption Rule, EPA applied the test to certain area source
categories.
    The four factors that EPA identified in the Exemption Rule for
determining whether title V is unnecessarily burdensome on a particular
area source category include: (1) Whether title V would result in
significant improvements to the compliance requirements, including
monitoring, recordkeeping, and reporting, that are proposed for an area
source category (70 FR 75323); (2) whether title V permitting would
impose significant burdens on the area source category and whether the
burdens would be aggravated by any difficulty the sources may have in
obtaining assistance from permitting agencies (70 FR 75324); (3)
whether the costs of title V permitting for the area source category
would be justified, taking into consideration any potential gains in
compliance likely to occur for such sources (70 FR 75325); and (4)
whether there are sufficient implementation and enforcement programs in
place to assure compliance with the NESHAP for the area source
category, without relying on title V permits (70 FR 75326).\9\
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    \9\ In the Exemption Rule, in addition to determining whether
compliance with title V requirements would be unnecessarily
burdensome on an area source category, we considered, consistent
with the guidance provided by the legislative history of section
502(a), whether exempting the area source category would adversely
affect public health, welfare or the environment. See 72 FR 15254-
15255, March 25, 2005. As shown above, after conducting the four-
factor balancing test and determining that title V requirements
would be unnecessarily burdensome on the area source categories at
issue here, we examined whether the exemption from title V would
adversely affect public health, welfare and the environment, and
found that it would not.
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    In discussing the above factors in the Exemption Rule, we explained
that we considered on ``a case-by-case basis the extent to which one or
more of the four factors supported title V exemptions for a given
source category, and then we assessed whether considered together those
factors demonstrated that compliance with title V requirements would be
`unnecessarily burdensome' on the category, consistent with section
502(a) of the Act.'' See 70 FR 75323. Thus, we concluded that not all
of the four factors must weigh in favor of exemption for EPA to
determine that title V is unnecessarily burdensome for a particular
area source category. Instead, the factors are to be considered in
combination, and EPA determines whether the factors, taken together,
support an exemption from title V for a particular source category.
    The commenter asserts that ``EPA must show * * * that the `burden'
of compliance is unnecessary.'' This is not, however, one of the four
factors that we developed in the Exemption Rule in interpreting the
term ``unnecessarily burdensome'' in CAA section 502, but rather a new
test that the commenter maintains EPA ``must'' meet in determining what
is ``unnecessarily burdensome'' under CAA section 502. EPA did not re-
open its interpretation of the term ``unnecessarily burdensome'' in CAA
section 502 in the June 1, 2009 proposed rule for the category at issue
in this rule. Rather, we applied the four-factor balancing test
articulated in the Exemption Rule to the source category. Had we sought
to re-open our interpretation of the term ``unnecessarily burdensome''
in CAA section 502 and modify it from what was articulated in the
Exemption Rule, we would have stated so in the June 1, 2009 proposed
rule and solicited comments on a revised interpretation, which we did
not do. Accordingly, we reject the commenter's attempt to create a new
test for determining what constitutes ``unnecessarily burdensome''
under CAA section 502, as that issue falls outside the purview of this
rulemaking.\10\
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    \10\ If the commenter objected to our interpretation of the term
``unnecessarily burdensome'' in the Exemption Rule, (s)he should
have commented on and challenged that rule. However, any challenge
to the Exemption Rule is now time-barred by CAA section 307(b).
Although we received comments on the title V Exemption Rule during
the rulemaking process, no one sought judicial review of that rule.
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    Furthermore, we believe that the commenter's position that ``EPA
must show * * * that the ``burden'' of compliance is unnecessary'' is
unreasonable and contrary to Congressional intent concerning the
applicability of title V to area sources. Congress intended to treat
area sources differently under title V, as it expressly authorized the
EPA Administrator to exempt such sources from the requirements of title
V at her discretion. There are several instances throughout the CAA
where Congress chose to treat major sources differently than non-major
sources, as it did in CAA section 502. Moreover, although the commenter
espouses a new interpretation of the term ``unnecessarily burdensome''
in CAA section 502 and attempts to create a new test for determining
whether the requirements of title V are ``unnecessarily burdensome''
for an area source category, the commenter does not explain why EPA's
interpretation of the term ``unnecessarily burdensome'' is arbitrary,
capricious or otherwise not in accordance with law. We maintain that

our interpretation of the term ``unnecessarily burdensome'' in section
502, as set forth in the Exemption Rule, is reasonable.
    Comment: One commenter states that exempting a source category from
title V permitting requirements deprives both the public generally and
individual members of the public who would obtain and use permitting
information for the benefit of citizen oversight and enforcement that
Congress plainly viewed as necessary. According to the commenter, the
text and legislative history of the CAA provide that Congress intended
ordinary title V permits. The commenter also says that EPA does not
claim, far less demonstrate with substantial evidence, that citizens
have the same ability to obtain emissions and compliance information
about air toxics sources and to be able to use that information in
enforcement actions and in public policy decisions on a State and local
level. The commenter states that Congress did not think that
enforcement by States or other government entities was enough; if it
had, Congress would not have enacted the citizen suit provisions, and
the legislative history of the CAA would not show that Congress viewed
citizens' access to information and ability to enforce CAA requirements
as highly important, both as an individual right and as a crucial means
to ensuring compliance. According to the commenter, if a source does
not have a title V permit, it is difficult or impossible--depending on
the laws, regulations, and practices of the State in which the source
operates--for a member of the public to obtain relevant information
about its emissions and compliance status. The commenter states that,
likewise, it is difficult or impossible for citizens to bring
enforcement actions. The commenter continues that EPA does not claim--
far less demonstrate with substantial evidence, as would be required--
that citizens would have the same ability to obtain compliance and
emissions information about sources in the categories it proposes to
exempt without title V permits. The commenter also says that EPA does
not claim, far less demonstrate with substantial evidence, that
citizens would have the same enforcement ability. Thus, according to
the commenter, the exemptions EPA proposes plainly eliminate benefits
that Congress thought necessary. The commenter claims that, to justify
its exemptions, EPA would have to show that the informational and
enforcement benefits that Congress intended title V to confer--benefits
which the commenter argues are eliminated by the exemptions--are for
some reason unnecessary with respect to the categories it proposes to
exempt. The commenter concludes that EPA does not even acknowledge
these benefits to title V, far less explain why they are unnecessary,
and that for this reason alone, EPA's proposed exemptions are unlawful
and arbitrary.
    Response: Once again, the commenter attempts to create a new test
for determining whether the requirements of title V are ``unnecessarily
burdensome'' on an area source category. Specifically, the commenter
argues that EPA does not claim or demonstrate with substantial evidence
that citizens would have the same access to information and the same
ability to enforce under these NESHAP, absent title V. The commenter's
position represents a significant revision of the fourth factor that
EPA developed in the Exemption Rule in interpreting the term
``unnecessarily burdensome'' in CAA section 502. For all of the reasons
explained above, the commenter's attempt to create a new test for EPA
to meet in determining whether title V is ``unnecessarily burdensome''
on an area source category cannot be sustained. This rulemaking did not
re-open EPA's interpretation of the term ``unnecessarily burdensome''
in CAA section 502. In any event, EPA's interpretation is reasonable.
Furthermore, the commenter's statements do not demonstrate a flaw in
EPA's application of the four-factor balancing test to the specific
facts of the sources we are exempting, nor do the comments provide a
basis for the Agency to reconsider the exemption as we are finalizing
it.
    EPA reasonably applied the four factors to the facts of the source
category at issue in this rule, and the commenter has not identified
any flaw in EPA's application of the four-factor test to the area