July 16, 2009

US Environmental Protection Agency

Attention Docket ID No. EPA- HQ-OAR-2008-0053

1200 Pennsylvania Avenue, NW

(Mailcode: 2822T)

Washington, DC 20460

RE:	National Emissions Standards for Hazardous Air Pollutants: Area
Source Standards for Paints and Allied Products Manufacturing; Proposed
Rule: NPCA/FSCT Comments

To Whom It May Concern:

The National Paint and Coatings Association/FSCT (NPCA/FSCT) is
submitting comments concerning the above referenced rulemaking
(hereinafter referred to as the “Proposed Rule”).  NPCA/FSCT is a
voluntary, nonprofit trade association working to advance the needs of
the paint and coatings industry and the professionals who work in it.
The organization represents paint and coatings manufacturers, raw
materials suppliers, distributors, and technical professionals.
NPCA/FSCT serves as an advocate and ally for members on legislative,
regulatory and judicial issues, and provides forums for the advancement
and promotion of the industry through educational and professional
development services.

This rulemaking is of great interest to NPCA/FSCT since we are the
primary organization representing the US paint and coatings industry,
the subject of this rulemaking.  In addition, this rulemaking will
impact primarily small business members – EPA’s own analysis shows
that out of the 2,510 paint and allied products manufacturing sites that
will be impacted by this rule, 2,190 (87%) are small businesses and 50%
of those businesses have less than 10 employees.  Thus, NPCA/FSCT is
gravely concerned that EPA has not provided adequate opportunity for
review and comment on this rulemaking by the regulated community. In
fact, EPA denied NPCA/FSCT’s request for an extension of the comment
period and provided little to no support for the industry’s public
hearing, which most notably did not even include representation from
EPA’s Office of General Counsel. Providing only 30 days to review and
comment on a highly complex rule that will affect virtually the entire
paint and coatings industry, is woefully inadequate. Again, this
condensed time period with which to provide meaningful comment is even
more troubling as this rule will disproportionally impact small
businesses. While NPCA/FSCT appreciates the fact that EPA is under a
court ordered deadline to promulgate this rulemaking (in fact, NPCA/FSCT
intervened on behalf of EPA in this court case), sacrificing fair and
reasonable stakeholder input in favor of arbitrarily set deadlines, is
unacceptable.  Thus, NPCA/FSCT reserves the right to supplement these
comments after the filing deadline.

I. Introduction

NPCA/FSCT seriously questions the need for this regulation.  As
discussed in depth below the original listing for the Paint and Allied
Products Source Category listing was predicated on old data that does
not accurately reflect the industry’s emission profile of today.
While industry was not able to comment on the original listing, during
the course of this rulemaking, NPCA/FSCT has provide the Agency with
ample information and improved data with which to correct this error.
Thus, NPCA/FSCT believes that not regulating this source category and/or
limiting the rulemakings impact (particularly on small businesses) by
reevaluating, clarifying and/or subcategorizing the source category is
consistent with EPA’s Integrated Urban Air Toxics Strategy (Strategy).
 In the Strategy, EPA states that they will use updated

“…information as part of our process to reevaluate the source
categories listed in the Strategy. Based on this updated information, we
may decide to remove an area source category listed here if, for
example, the reason for the listing was inaccurate (e.g., faulty
reporting to TRI) or if no urban area sources exist. We believe this
iterative approach is consistent with the general scheme for listing and
regulating area sources under section 112 of the Act.”

In addition, NPCA/FSCT notes that the economic analysis EPA undertook
for this rulemaking is fatally flawed.  EPA did not use actual facility
data, even though it was provided to them, but instead based the
rulemaking on estimates using inaccurate emission estimates and faulty
model plant assumptions.  In addition, EPA’s cost estimates for
control devices and work practice standards are orders of magnitude
below what the actual costs to a facility would be under the Proposed
Rule.  Regardless, even using EPA’s own faulty estimates, the rule is
unwarranted as the Proposed Rule will only reduce the listed urban metal
HAP by 0.13 tons/year and the listed urban volatile HAP by 5.1 tons/year
nationwide, but will cost an astronomical annual amount of more than
$590,000 per ton of urban HAP. Thus, NPCA/FSCT requests that EPA
appropriately reevaluate this category for regulation.

If, over the objection of NPCA/FSCT and the clear weight of the improved
data and accurate economic analysis, EPA promulgates a final regulation
for this source category, NPCA/FSCT has presented regulatory and legal
precedence in these comments for appropriate clarification of the source
category and/or subcategorization and exemptions to the category.  In
addition, NPCA/FSCT has presented burden reduction and pollution
prevention provisions to mitigate to the extent possible the costs and
burden associated with any final rulemaking on the industry, which is
appropriate given that the rulemaking will have little to no
environmental benefit.  Lastly, NPCA/FSCT has recommended numerous
clarifying provisions and requested administrative changes to the
Proposed Rule in order to appropriately limit the scope of the rule and
provide for workable compliance and enforcement provisions.

II. There is No Need For This Regulation

A.	EPA did not Provide Adequate Notice and Opportunity to Comment on the
Area Source Category Listings

On November 22, 2002 EPA promulgated revisions to its area source
category list under the Strategy.  The notice added 23 new area source
categories to the list of industries to be regulated by air toxic
standards, including the Paint and Allied Products Area Source Category.
 Even though EPA states in the first paragraph of the notice that
“[t]he Strategy’s area source category list constitutes an important
part of EPA’s agenda for regulating stationary sources of air [toxics]
emissions” (emphasis added), stakeholders were not afforded the
opportunity to comment on the area source category list.  Instead, EPA
stated “These revisions to the list of area sources have not been
reflected in any previous notices and are being made without public
comment on the Administrator’s own motion.  Such revisions are deemed
by EPA to be without need for public comment based on the nature of the
actions.” (emphasis added)  NPCA/FSCT believes the “nature of the
actions” – listing the area sources to be regulated, was just as EPA
stated – an important part of its regulatory framework and thus,
should have provided those impacted with an opportunity for comment.  In
fact, NPCA/FSCT believes that if we had had the opportunity to comment,
we would have shown that there was no need for this regulation.
Considering that the 2002 listing was based on outdated emissions data
from 1990, the listing simply does not reflect current industry
practices or emissions.

NPCA/FSCT documented concerns with the data EPA used as a basis for the
Paint and Allied Products Area Source Category listing in a letter to
EPA in 2004. In this letter, NPCA mentioned numerous errors with the
National Emissions Inventory (NEI) database, including duplicative
facility listings and at least 50 major source facilities listed as area
sources (e.g., one “so called area source” had HAP emissions of 567
tons per year). Further, a large number of the sources were simply not
paint or allied manufacturing operations.  In fact, as described later
in these comments, much of the methylene chloride emissions are from
paint stripper packaging operations, and many of the metal HAPs are from
pigment manufacturing operations – both of which should be excluded
since they are not paint and allied products manufacturing. These
errors, among others, in the NEI database resulted in the overestimation
of contributions of the Urban HAP’s from the paint and allied products
manufacturing industry, and an erroneous areas source listing.

III. EPA Must Take Into Consideration Changes in Industry Since Listing

A.	Business Conditions and Technology has Changed Dramatically Since
1990

The coatings manufacturing industry has changed drastically over the
last two decades, with significant improvements over the last five
years.  The industry is a customer and technology driven industry.
NPCA/FSCT members have consistently led the regulatory curve in reducing
the toxicity, the Volatile Organic Compound (VOC), and Hazardous Air
Pollution (HAP) concentrations of our products.  For example, the
introduction of high solids, low VOC paints and the use of low vapor
pressure solvents have resulted in lower air emissions from paint and
allied products manufacturing facilities (the emissions are generally at
least an order of magnitude less then emissions of methyl ethyl ketone
or toluene, which were prevalent in the 1980's).  Moreover, the
increasing use of powder coatings has also significantly reduced
toxicity, VOC and HAP emissions from our manufacturing processes as well
as end user applications.  These changes have been made in response to
market forces, which in turn leads to a response in technology.

Business conditions have also led to dramatic changes in our
manufacturing processes.  One example is smaller batch sizes.  As
business pressures have increased on both the manufacturing and surface
coating side, inventory levels of paints have been reduced.  Our
industry has become more of a “made to order” oriented business then
a “made to stock” business.  This has, in turn, lead to
manufacturing and other technological advances.  It is anticipated that
this will not change, but in fact, smaller batch sizes and shorter lead
times will prevail, especially in the industrial and specialty coatings
arenas.  The predominance of smaller batch sizes generally means paints
and coatings are made in one container or tank and not transferred into
multiple tanks, which eliminates emissions from transfer/loading
operations during manufacturing.

The increasing prevalence of blend systems/plants, or making paints and
coating in one container, eliminates emissions from our manufacturing
processes. These systems are computer controlled manufacturing processes
where raw materials are added via dispense heads into a final shipping
container (drum or pail), mixed, and then shipped.  The emissions
profile of a system such as this is much less then a typical paint
manufacturing process.  These business conditions and technology
improvements have drastically altered the emission profile of the paint
and coatings industry.  However, EPA does not take into consideration
these issues or ignores the ramification of such, when in fact; this
should be the basis for reducing the stringency of this regulation
accordingly.

B.	Industry Emissions Have Been Significantly Reduced Since the Listing
1990

In addition, with the concurrent implementation of the National Emission
Standards for Hazardous Air Pollutants (NESHAPs) for Miscellaneous
Coating Manufacturing (MCM) and the numerous Surface Coating categories
under Section 112 of the CAA (hereinafter referred to as “Surface
Coating MACTs”), our customers have and will continue to demand even
lower VOC and HAP coatings (to avoid the imposition of expensive control
technology at their facilities), further driving coatings technology and
manufacturing to reduce both VOC and HAP concentrations in finished
products.  It appears that EPA failed to take the impact of these
regulations, nor other Federal, state and local air regulations, into
consideration when formulating the Proposed Rule's standards or in
calculating the true costs of this rulemaking on industry.

While EPA recognized in the Proposed Rule that the coatings industry has
made significant emission reductions since 1990 through product
reformulation, process and cleaning changes, installation of control
equipment, and as a result of OSHA regulations (1998 OSHA PEL for
methylene chloride and new Hexavalent Chrome PEL), they did not reduce
the burden of the rulemaking sufficiently to compensate for such.
Information from EPA’s own report on the industry through its Sector
Strategies Program, confirms that not only have emissions of VOC and HAP
been reduced in the industry, use and emissions of the very HAP the
industry was listed for have been virtually eliminated.  EPA’s reports
that benzene and cadmium are no longer used in our industry and there
has been a significant decrease in use of methylene chloride, lead,
chromium and nickel.  This is based on 2003 data, so we would expect
with current data that the use of these target HAP (benzene, methylene
chloride, cadmium, chromium, lead, and nickel) would be even further
reduced with a corresponding reduction in emissions from these HAP.
EPA has documented the following:

Urban Air Toxics – 81% reduction since 1990

Total Air Toxics (including HAPs) – 61% reduction since 1990

Metal Air Toxics – 90% since 1990

Benzene – no facility reported emissions since 1998

Methylene Chloride – 80% reductions since 1990

Lead – 90% reduction since 1990

Cadmium – no facility emissions since 1991

Chromium – 90% reduction since 1990

Nickel – 90% reduction since 1990

It is important to note that most of the methylene chloride emissions
documented by EPA are from facilities that package paint stripper/paint
remover products. Since these products are specifically excluded from
this rulemaking as they do not leave a dried film of solid material on
the substrate – EPA should discount any emissions that result from
packaging of methylene chloride based paint strippers and paint
removers. In addition, one company that produces nickel-based coatings
accounted for most nickel emissions from the industry. Again, EPA should
discount the nickel emissions since they are from only one company.
Finally, it appears that EPA inadvertently included several pigment
manufacturing operations in the NEI database that resulted in increased
metal emissions for the industry. If EPA were to remove the emissions
associated with paint stripper/paint remover packaging; the one company
that produces unique nickel based coatings and the emissions from
pigment manufacturing operations – the emission reductions from the
coatings manufacturing industry would be even greater than the amounts
listed above.

More information and additional reasons for decreased HAP emissions
since 1990 (and in the future) are documented in Attachment A.  Given
the fact that this industry was not able to comment on the listing of
our source category and given the significant past emission reductions
and anticipated future reductions there is no need to further regulate
this industry.  While we understand that since the category was listed,
even if erroneously, that EPA must promulgate the rulemaking, NPCA/FSCT
expects EPA to reduce the costs and burden of this rulemaking on
industry as much as possible given the fact that the final rule will
ultimately have little to no environmental benefit commensurate with its
costs and will have a significant small business impact.  Thus, EPA must
include provisions in the final rule providing a de minimis threshold,
exempting certain facilities, and providing pollution prevention and
burden reduction options for others, as outlined below.

III. EPA Must Clarify the Source Category in the Applicability of the
Rule

A.	An Exemption for De Minimis Volumes Must be Provided

NPCA/FSCT supports the proposed rule’s applicability section in that
unless a facility is using one of the target HAP, it is not subject to
the regulation.  However, NPCA requests that an applicability de minimus
threshold (beyond the proposed OSHA threshold) also be included in the
final rule that would exempt a facility that emits less than a certain
quantity of the target HAP.  This is important given the fact that the
majority of the target HAP in this case are metals, which may be found
in trace amounts or as contaminants in many raw materials and may or may
not be known to the manufacturer.  NPCA/FSCT is concerned that as
proposed, a facility that inadvertently processes or uses a raw material
containing methylene chloride, benzene, cadmium, chromium, lead or
nickel above the OSHA de minimis of 0.1 percent would be subject to the
rule.  Further, as proposed once a facility is in for one of these HAPs,
then the proposed standards would apply to all organic and metal HAPs.
If this occurred after the effective date, the facility would be a new
source and would need to install particulate controls and covers
immediately.  Clearly, one mistake with regard to a raw material MSDS
could result in extreme burden for that facility, especially if that
facility is a small business facility.

NPCA/FSCT believes that EPA including such an applicability deminimis is
warranted since there is precedence for de minimus threshold (beyond the
OSHA de minimis threshold) in several earlier NESHAP rulemakings, as
will be discussed herein.  In these rules, EPA determined that the use
of coatings containing urban air toxics below certain thresholds do not
negatively impact human health and the environment.

In the Area Source Rule for Chemical Manufacturing, EPA evaluated
impacts for two groupings or subcategories for metal HAPs and considered
a threshold because of an observed difference in operation depending on
the emission rate. EPA also realized that there was a difference between
facilities with higher HAP emissions that manufactured products
containing HAPs as an intended part of the product and a majority of
facilities with low emissions where the HAP originated from impurities
in raw materials.

NPCA/FSCT suggests that there is also a similar observed difference in
operation depending on the emission rate for the paint and allied
products industry as well and such groupings or subcategories are
warranted. 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. This could include military coatings where
hexavalent chromium pigment is added as a corrosion inhibitor; lead
pigments added to road marking paints; or niche coatings containing
large amounts of nickel.

Further, it is important to note 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/yr were not included in the 1990 baseline emissions
inventory that was used in the basis for the area source category
listing - only those above the 50 ton year were in the basis for listing
so only those facilities are covered by the rule.

NPCA believes the same is true for the paint and allied products rule
– emissions from larger facilities made up the basis for listing,
emissions from smaller emitting facilities were not included in the 1990
baseline emissions inventory that was used in the basis for the Paint
and Allied Product Area Source category listing. This trend continues
since EPA had to greatly estimate emissions in the rule since the 2002
NEI only included emissions for 991 of the 2502 facilities in the
industry. As such, consistent with the Clay Manufacturing Area Source
Rule, EPA is warranted in including an applicability de minimis
threshold.

i.	“Large Emission” Area Source Paint Manufacturers versus “Small
Emission” Area Source Paint Manufacturers

In addition, the suggested 100 lb/yr Paints and Allied Products
Manufacturing HAP actual emission threshold helps minimize burden for
smaller facilities since it’s typically the larger production
facilities that tend to be above the 100 lb/year emission threshold.
Further, the 100 lb/year actual emission threshold makes sense from a
cost perspective as well.

NPCA/FSCT’s analysis of area sources in the Paint and Allied Products
category indicates that there are significant differences in processes
and size of facilities within the source category that warrant
subcategorization.  NPCA’s review of available data demonstrated
significant differences between larger and smaller facilities based on
production levels.  As EPA estimated, 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.  Based on these differences, the subcategorization
of the Paint and Allied Products source category is justified.
Consequently, EPA should subcategorize the Paint and Allied Products
source category into “small emission” and “large emission”
facilities based on the 100 lb/year Paints and Allied Products
Manufacturing HAP actual emission threshold.  As mentioned earlier the
threshold that should be selected to distinguish between large and small
facilities is a Paints and Allied Products Manufacturing HAP actual
emission threshold of 100 lb/year, which represents the characteristics
mentioned above.

Nearly three times as many small facilities would need to be controlled
with particulate controls, as opposed to large facilities.  EPA
estimated that the cost for large facilities to install particulate
controls would be approximately $300,000 per ton of HAP metals.    For
the small facilities to install particulate controls would result in an
estimated cost-effectiveness value of approximately $1,750,000 per ton
of HAP.  Because of the cost-ineffectiveness of requiring particulate
controls for small Paint and Allied Products facilities, facilities with
less than 100 lb./year actual emissions of cadmium, chromium, nickel or
lead emissions should be excluded from the applicability of the rule.

ii.	Legal Basis for Subcategorization

The legal basis for EPA’s subcategorization of the Paint and Allied
Products source category into large and small facilities is well
established.  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).  In the analysis above, NPCA has provided the factual basis
for such subcategorization.

Likewise, the Clean Air Act clearly supports an EPA determination that
work practice standards and general management practices constitute GACT
for small Paint and Allied Products sources.  Section 112(d)(5) of the
Act, “Alternative standard for area sources,” unambiguously provides
that:

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.

42 U.S.C. § 7412(d)(5) (emphasis added).   Section 112(d)(5) applies to
those categories and subcategories of area sources listed pursuant to
section 112(c).  EPA listed the Paint and Allied Products area source
category pursuant to section 112(c).  For area sources listed pursuant
to section 112(c)(3), EPA “may, in lieu of” the authorities provided
in section 112(d)(2) and 112(f), elect to promulgate standards pursuant
to section 112(d)(5).   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, section 112(d)(5)
authorizes EPA to promulgate standards under section 112(d)(5) that
provide for the use of GACT, instead of issuing MACT standards pursuant
to section 112(d)(2) and (d)(3).  The statute does not set any condition
precedent for issuing standards under section 112(d)(5) other than that
the area source category or subcategory at issue must be one that EPA
listed pursuant to section 112(c)(3).  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.
Furthermore, the legislative history supporting section 112(d)(5)
clearly 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.

See Senate Report on the 1990 Amendments to the Act (S. Rep. No.
101-228, 101st Cong. 1st session. 171-172)(emphasis added).  Congress
plainly recognized that area sources differ from major sources, which is
why Congress directed 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).

EPA is clearly allowed, moreover, to identify work practice standards
and management practices that have been implemented at a significant
number of small Paint and Allied Products facilities.  Of the management
practices identified, two in particular 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 identified, NPCA found that large Paint and
Allied Products facilities frequently used baghouses to reduce PM/HAP
emissions, while smaller (less than 100 lb/year emission) facilities
most often did not.

EPA has objected to subcategorization, based on cost considerations
alone, although NPCA/FSCT disagrees with that legal
interpretation. However, in this case, as in the nonferrous foundry
rule (promulgated June 25, 2009 - see page 32 of draft final rule posted
online   "… EPA did not select GACT, based on cost alone…"), EPA
indicated that it could create a separate subcategory based on a finding
that one group of facilities only used work practices to control HAPs,
and the larger subcategory of  facilities frequently employed add-on
controls.  That is the case here. Therefore, EPA can rely on both cost
and industry practice/processes to derive these subcategories.

In consideration of cost effectiveness in establishing GACT, EPA’s
views on what is a cost-effective requirement under section 112(d)(5)
are relevant.  The U.S. Court of Appeals for the D.C. Circuit has stated
that cost effectiveness is a reasonable measure of cost as long as the
statute does not mandate a specific method of determining cost. See
Husqvarna AB v. EPA, 254 F.3d 195, 201 (D.C. Cir. 2001)(finding EPA's
decision to consider costs on a per ton of emissions removed basis was
reasonable because CAA section 213 did not mandate a specific method of
cost analysis).

NPCA believes the consideration of costs and economic impacts is
especially important for determining GACT for small Paint and Allied
Products 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.

An EPA determination that work practice standards and management
practices are GACT for small Paint and Allied Products facilities is
fully consistent with two recent decisions of the U.S. Court of Appeals
for the District of Columbia Circuit on standard-setting under section
112 of the Clean Air Act.  See Sierra Club v. EPA, 479 F.3d 875 (D.C.
Cir. 2007) (the Court held unlawful EPA’s imposition of work practice
standards instead of emission standards in the Brick MACT rulemaking),
and Natural Resources Defense Council v. EPA, 489 F.3d 1364 (D.C. Cir.
2007)(the Court struck down EPA’s creation of a “low risk”
subcategory in the MACT rulemaking for the plywood and composite wood
product source category).  Both of these cases involved major sources of
HAP and the CAA’s requirements for establishing MACT standards, not
areas sources or the determination of GACT.  Neither the Sierra or NRDC
case addressed EPA’s specific responsibilities under section 112(d)(5)
to consider economic impacts on area sources or the technical
capabilities of area sources to operate and maintain control systems.
While the Court in NRDC cited in passing the language of section
112(d)(1) – the general requirement for emission standards (“EPA
shall promulgate regulations establishing emission standards for each
category or subcategory of major sources and area sources of hazardous
air pollutants”) – it did not interpret section 112(d)(1) to take
precedence over section 112(d)(5) where area sources are involved.  In
sum, nothing in either of these two Court decisions limits in any way
EPA’s authority to determine that work practice standards and
management practices constitute GACT for small area sources.  Indeed,
EPA can reasonably use its section 112(d)(5) authority to exempt
low-emitting sources from an area source rulemaking altogether by
establishing a de minimis exemption for such sources.

iii.	Legal Basis for Creating a De Minimis Area Source Threshold

EPA clearly has ample inherent authority to set de minimis thresholds
under Section 112(d)(5).  The seminal case in de minimis jurisprudence
is Alabama Power Co. v. Costle, 636 F.2d 323 (D.C. Cir. 1979).  In that
case, the Court explained that categorical exemptions from the
requirements of a statute may be permissible “as an exercise of agency
power, inherent in most statutory schemes, to overlook circumstances
that in context may fairly be considered de minimis.”  Alabama Power
Co., 636 F.2d at 360.  The Court explained that:

It is commonplace . . . that the law does not concern itself with
trifling matters, and this principle has often found application in the
administrative context.  Courts should be reluctant to apply the literal
terms of a statute to mandate pointless expenditure of effort . . . .
The ability, which we describe here, to exempt de minimis situations
from a statutory command is not an ability to depart from the statute,
but rather a tool to be used in implementing the legislative design.

Id. (emphasis added).  The Court also stated that:

Categorical exemptions may . . . be permissible as an exercise of agency
power, inherent in most statutory schemes, to overlook circumstances
that in context may fairly be considered de minimis.  Th[at] ability . .
. is not an ability to depart from the statute, but rather a tool to be
used in implementing the legislative design.  [W]e think most regulatory
statutes, including the Clean Air Act, permit such agency showings in
appropriate cases.

Id.  More recently, in Environmental Def. Fund, Inc., v. EPA
(“EDF”), 82 F.3d 451 (D.C. Cir. 1996), the Court set forth the
existing de minimis standard:

As long as the Congress has not been extraordinarily rigid in drafting
the statute . . . there is likely a basis for an implication of de
minimis authority to provide an exemption when the burdens of regulation
yield a gain of trivial or no value.

Id. at 466 (quotations omitted and emphasis added).

The D.C. Circuit has upheld EPA’s exercise of its de minimis authority
because it allows the Agency to avoid undertaking continuing regulatory
action where no meaningful risk exists.  See Ohio v. EPA, 997 F.2d 1520
(D.C. Cir. 1993).  In Ohio, the Court found reasonable EPA’s exemption
of certain remediated hazardous waste sites from a CERCLA review
requirement because the exemption “square[d] with the
health-protective purpose of the statute.”  Id. at 1535.  The Court
stated that, “[t]o go beyond that [the statutory purpose] is to
adjudge Congress incompetent to fashion a rational legislative
design.”  Id. at 1534-35.

As EPA itself has recognized, the Agency’s exercise of its de minimis
authority, as well as its treatment by reviewing courts, uniformly has
turned on the degree of risk at issue, not on the mass of emissions to
be regulated.  In a 1994 publication on de minimis emissions rates under
Section 112(g) of the Act, EPA’s Emission Standards Division noted
that “the concept of de minimis has been used by the courts for
providing authority to regulatory agencies to make exceptions for
regulation when the regulatory burdens of those affected by the rule
would ‘yield a gain of trivial or no value.’”  EPA explained that
the Agency’s exercise of de minimis authority is important because it
is “intended to prevent trivial emissions increases to be considered .
. . subject to regulation and needlessly drain administrative
resources”(emphasis added).

EPA’s practice of providing de minimis exemptions from CAA mandates
was later articulated by then-EPA General Counsel Jonathan Cannon in a
discussion of EPA’s proposal for implementing the then-recently
promulgated NAAQS standards.  In an October 6, 1997 letter to
Congressman Bliley, Chairman of the House Commerce Committee, Cannon
stated that:

In providing common sense solutions to problems, EPA has previously
applied de minimis principles where the strict application of the
literal text of the Clean Air Act would produce trivial or non-existent
environmental benefits (emphasis added). . . . For example, EPA believed
it appropriate under de minimis principles to exempt the
“submarginal” and “incomplete data” ozone nonattainment areas
referred to above from the otherwise applicable requirement of Section
172(c)(9) to submit SIPs providing for certain contingency measures.

EPA has frequently relied on the de minimis principle in past Clean Air
Act rulemakings to exempt small emission sources from regulation,
including the following:

Miscellaneous Plastic Parts and Products MACT (Subpart PPPP) – EPA
limited the applicability of the rule to facilities using 100 gallons or
more a year of coatings that contain a HAP.

Miscellaneous Metal Parts and Products MACT (Subpart MMMM)  - EPA
limited the applicability of the rule to facilities using coatings in
volumes of less than 50 gallons per year provided that the total volume
per year did not exceed 250 gallons.

Clay Ceramics Manufacturing Area Source Rule (Subpart RRRRRR) – EPA
limited the applicability of the rule to only those area source clay
ceramic manufacturing facilities using >50 TPY of wet clay with atomized
spray glazing and/or a kiln firing glazed ceramic ware.

Glass Manufacturing Area Source Rule (Subpart SSSSSS) –EPA limited the
applicability of the rule to only those area source glass manufacturing
facilities with glass manufacturing furnaces producing at least 50 tons
of glass per year.

Municipal Solid Waste Landfills (Subpart AAAA) – The final rule does
not apply to area source landfills (including bioreactors) with a design
capacity less than 2.5 million Mg or 2.5 million cubic meters. It also
does not apply to conventional area source landfills that have estimated
uncontrolled emissions of less than 50 Mg/yr NMOC.

Aluminum, Copper, and Other Nonferrous Foundries (Subpart ZZZZZZ) –
EPA limited the applicability of the rule to existing foundries with an
annual aluminum, copper, and nonferrous metal melt production of 600
tons per year (tpy) or greater and new foundries with a capacity of 600
tpy.

Thus, EPA has applied de minimus rationale even to MACT standards as
well as GACT (area source) standards.  The legal basis for such is even
more assured for GACT standards, however, where EPA can freely take
costs and benefits into account when exercising its inherent power not
to regulate de minimis circumstances.  If it is legally permissible, and
sensible, to determine the costs of GACT regulation by reference to the
ability of smaller sources to operate under those costs, it should be
just as permissible – because it is just as sensible – to conclude
that, at some point, the amount of emissions reductions at a source are
so miniscule or inconsequential that they do not warrant any cost of
regulation.  Sources emitting urban HAPs below that threshold should be
exempt from the rule.  Under Alabama Power, this ability to consider
costs and benefits also gives EPA the flexibility not to impose any
requirements at all on sufficiently small area sources.  Given the
cost-ineffectiveness of applying the proposal to sources processing de
minimis quantities of urban HAPs, EPA should use that power to exempt
such sources.

iv.	State Regulations Include Applicability De Minimis Thresholds

As EPA correctly stated, there is a general absence of specific State or
local rules for Paint and Allied Products Manufacturing. However, those
state rules that do exist include applicability de minimus thresholds
that exclude lower volume production facilities, waterborne production
facilities, and small volume process tanks. Since EPA can look to State
regulations as part of the GACT analysis and these rules include de
minimus applicability thresholds – EPA has the authority to institute
the suggested 100 lb/year emission de minimus threshold in the rule.

Thus, NPCA/FSCT requests that an applicability de minimis level be added
(in addition to the proposed OSHA de minimus threshold) to the Area
Source rule for Paint and Allied Products manufacturing at a minimum of
100 lb/yr emissions of Paints and Allied Products Manufacturing HAP,
establishing a bright line between small emission area source facilities
and large emission areas source facilities and those who intend on using
the target HAP for their products and those who do not.  NPCA/FSCT
recommends the following revision to Section 40 CFR §63.11599(a):

“(a) 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) actual emissions above 100 lb/yr
of one or more of the following HAP: benzene, methylene chloride, and
compounds of cadmium, chromium, lead and nickel.”

B.	Limit the Rule’s Applicability to the Target HAP

Again, NPCA/FSCT supports the fact that EPA has proposed to limit the
initial applicability of the rulemaking to only those paint
manufacturing operations that process, use, produce or generate any of
the target HAP.  However, once a facility is subject to the rulemaking
based on the use of one or more target HAP, the Proposed Rule then
arbitrarily expands the applicability to all organic HAP emissions and
all metal HAP emissions.  The intent of the area source regulations was
to regulate the 30 Urban Air toxics.  Thus, by expanding the rule beyond
the target HAP, EPA is significantly increasing the burden on industry
– especially small businesses – again, without commensurate
environmental benefit.  EPA states that there is little if any
additional cost for implementing controls across all emission sources,
however, NPCA believes EPA’s costs estimates are in error.  While EPA
may have the legal authority to expand the scope of this rulemaking –
given the fact that the paint and allied products category listing is
suspect in and of itself and that the industry has made significant
reductions in the use of the target HAPs as well as emissions of all
HAP, we believe it unnecessary and overly burdensome for EPA to expand
the rule’s applicability in this manner.  There is precedent for this
approach under 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.  NPCA/FSCT
requests that EPA 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 HAP.  NPCA/FSCT
recommends the following revision to Section 40 CFR §63.11599(b):

“(b) The affected source consists of all paints and allied products
manufacturing processes at the facility that process, use, or generate
materials containing one or more of the HAP listed in (a) in amounts
greater than or equal to 1.0 percent by weight or 0.1 percent by weight
for carcinogens as defined in 29 CFR 1910.1200(d)(4).”

C.	Exemption for Paste, Solution or Slurry Form

Another exemption from the applicability of the rule that would reduce
the costs and burden associated with this rulemaking without
environmental harm would be to exempt facilities and/or processes that
only use the raw materials containing the target metal HAP in paste,
solution or slurry form.  EPA correctly concluded in the Proposed Rule
that after the addition processes, pigments and associated metal HAP are
in solution and metal HAP emissions are minimal.  The same is true for
raw materials and pigments in paste, solution or slurry format – the
risk of PM emissions is minimal given that fact that any solid matter is
bound in solution.  Since there are minimal PM emissions from the use of
pigments and raw materials in this form, NPCA requests that that EPA
exempt facilities and processes using pastes and slurries from the
applicability of this rule.  NPCA/FSCT recommends the following
revisions to Section 40 CFR §63.11599(a):

“(a) 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) actual emissions above 100 lb/yr
of one or more of the following HAP: benzene, methylene chloride, and
compounds of cadmium, chromium, lead and nickel, except where these HAP
are contained in slurry, solution or paste form.”

D.	Exemption for Architectural Coatings

EPA solicited comment on potential subcategories for this source
category. NPCA/FSCT believes that there are certain portions of the
coatings industry that do not use benzene, methylene chloride, and
compounds of cadmium, chromium, lead and nickel. Specifically, NPCA/FSCT
does not believe that facilities that are exclusively manufacturing
architectural house paints utilize any of these target HAP.  This is not
only because of reformulation and process changes as discussed
previously, but because of the many consumer oriented regulations
governing these products, including but not limited to:

Consumer Product Safety Improvement Act of 2008 that lowered lead levels
in consumer paints from 600 ppm (1978 levels) to 90 ppm. All consumer
paints will be required to meet the 90 ppm standard by August 14, 2009.

Green Seal Green Building Standard (GS-11) for Architectural paints that
since 1993 has limited the use of methylene chloride, benzene, cadmium,
lead and chromium. GS-11 was recently revised in 2008 and bans the use
of HAP in Architectural Coatings as well.  Please note that GS-11 is the
basis of many other green building standards including the Leadership in
Energy and Environmental Design (LEED) certification system.

Toxics in Packaging Legislation, through the Coalition of Northeastern
Governors that has been adopted in 19 states limits the concentration of
lead, cadmium and chromium in our products.

As discussed earlier, EPA has the authority to subcategorize under this
rulemaking and apply different standards to different categories of
paint and allied products manufacturing.  NPCA/FSCT believes that EPA is
warranted in exempting architectural coatings manufacturing operations
from the applicability of the final rulemaking.  In addition, again, as
EPA correctly stated there is a general absence of specific State or
local rules for Paint and Allied Products Manufacturing, however, those
state rules that do exist include exclusions for waterborne production
facilities. Since nearly 80% of architectural coatings are waterborne,
exempting architectural coatings facilities from the rule would be
consistent with State and/or local rules.  NPCA/FSCT recommends the
following language be added to 40 CFR §63.11599 ((d)(2) through (7) are
discussed herein).

 “(d) The requirements for paints and allied products manufacturing
area sources in this subpart do not apply to operations described in
paragraphs (d)(1) through (7) of this section.

(1) Architectural coating manufacturing facilities, defined as a coating
to be applied to stationary structures or their appurtenances at the
site of installation, to portable buildings at the site of installation,
to pavements, or to curbs. Coatings applied in shop applications or to
non-stationary structures such as airplanes, ships, boats, railcars, and
automobiles, and adhesives are not considered architectural coatings.”

E.	Chromium Compounds Must Be Distinguished

The proposed rule defines “Material containing HAP” as any material
that contains more than 0.1% by weight of a “Paints and Allied
Products Manufacturing metal HAP.”  EPA bases their classification as
carcinogens by the Occupational Safety and Health Administration (OSHA)
in 29 CFR §1910.1200(d)(4).  However, not all chromium compounds are
considered carcinogenic.  The National Toxicology Program only
identifies hexavalent chromium compounds (i.e. Cr+6) as carcinogenic.
Other chromium compounds (i.e. trivalent chromium or Cr+3) are not
identified as carcinogens or possible carcinogens by OSHA.  This is
consistent with EPA’s Toxic Release Inventory program where Hexavalent
Chromium Compounds are subject to a 0.1% de minimis concentration while
Trivalent Chromium Compounds are subject to a 1.0% de minimis
concentration.

Therefore, the definition for “Material Containing HAP” should be
modified as follows:

“Material containing HAP means a material containing benzene,
methylene chloride, or compounds of hexavalent chromium, lead, and/or
nickel, in amounts greater than or equal to 0.1 percent by weight, and
trivalent chromium in amounts greater than or equal to 1.0% by weight,
as defined in 29 CFR 1910.1200(d)(4), and as shown in the formulation
data provided by the manufacturer or supplier, such as the Material
Safety Data Sheet for the material.”

F.	Powder Coating Manufacturing Operations Should be Exempted

As mentioned at the June 16, 2009 EPA Public Hearing for the Paint and
Allied Product Area Source Rule, NPCA/FSCT and our membership are
concerned about powder coating manufacturing operations and how these
facilities are to comply with the Paint and Allied Products Area Source
Rule, especially since the rule seems to be written more from a liquid
coating perspective. Of great concern are inspection/enforcement
implications of a compliance inspector trying to apply liquid coating
requirements on a powder coating manufacturing facility.

In general, powder coating manufacturing operations do have
premix/assembly operations which may include pigment additions, powder
plants do not really have process vessels. Further, these operations
utilize particulate baghouses as part of the process to collect powders,
however these do not vent to the atmosphere so the requirements for
particulate controls in the rulemaking are not really applicable to
powder coating operations. Since profitability is based on how much of
the powder coatings are captured in the production line, these
facilities have an incentive to have little to no particulate emissions.
Overall, powder coatings are the next progression of “green” coating
technology since very little HAP and VOC emissions are generated during
the production and use of powder coatings.

It is clear that EPA did not develop the proposed Paint and Allied
Products Area source rule for powder coating manufacturing operations,
in fact there is only one indirect reference to powder coatings in the
proposed rule/background documents. EPA mentions that “paints and
allied products may be manufactured in liquid or solid form.” EPA did
not include powder manufacturing in the model plant development,
baseline HAP emissions calculation, nor the control option and impact
analysis.  Further, given the fact that powder coatings are a relatively
new technology, that have been developed since the 1990 EPA emissions
inventory – EPA did not include powder coating manufacturing
facilities in the baseline emissions inventory, nor in the basis for
listing the paint and allied products area sources.

As such, NPCA recommends that EPA exempt powder coatings manufacturing
operations from the rulemaking since consistent with the Clay
manufacturing area source rule, powder coatings manufacturing operations
were not included in the 1990 baseline emissions inventory and basis for
listing this source category. In addition, if EPA were to analyze the
cost effectiveness of controls for powder coating manufacturing they
would be exponentially higher than liquid coatings manufacturing since
particulate, HAP and VOC emissions from powder coating manufacturing
operations are negligible.  Further, exempting powder coating operations
from the rule would alleviate industry concerns over compliance issues
related to applying the “liquid coating” provisions of the proposed
rule to powder coating operations. Finally, exempting powder coating
manufacturing from the rulemaking would provide further incentive for
manufacturers to minimize their environmental footprint and move from
higher HAP/VOC liquid coatings to powder coatings.  NPCA/FSCT recommends
the following language be added to 40 CFR §63.11599 ((d)(3) through (7)
are discussed herein):

“(d) The requirements for paints and allied products manufacturing
area sources in this subpart do not apply to operations described in
paragraphs (d)(1) through (7) of this section.

(2) Powder coating manufacturing facilities and/or operations.”

G.	Process Tanks Less Than 250 Gallons Should be Exempted From the
Rulemaking

NPCA suggests that EPA include in the final Paint and Allied Products
Area Source rule an applicability exemption for process tanks less
than 250 gallons. This exemption is warranted both for consistency and
to limit burden since the  Miscellaneous Coatings Manufacturing MACT
rulemaking exempted process tanks less than 250 gallons.
Further, 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 covered, including very small containers like 5
gallon containers and 55 gallons drums.  NPCA/FSCT recommends the
following language be added to 40 CFR § 63.11607:

“Process vessel means any stationary or portable tank or other vessel
with a capacity of greater than or equal to 250 gallons and in which
mixing, blending, diluting, dissolving, temporary holding, and other
processing steps occur in the manufacturing of a coating.”

H.	Overlap With Other NESHAPs and Ancillary Activities Needs to be
Addressed

	i.	Co-Located Chemical Manufacturing Area Sources

While the Proposed Rule definition of “paints and allied product
manufacturing” makes it clear that the rule does not apply to raw
material production, such as resins, pigments and solvents used in the
production of paints and coatings, to be sure that there is no overlap
between the Chemical Manufacturing Area Source, as some larger area
source facilities will be co-located with chemical or resin operations,
NPCA/FSCT requests that EPA revise the definition of “Paints and
Allied Product Manufacturing Process” as follows:

“Paints and allied product manufacturing process means all the
equipment which collectively functions to produce a paint[s] or allied
product. 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. Quality assurance and quality control laboratories are not
considered part of a paints and allied product manufacturing process.”

Surface Coating Facilities, Industrial Maintenance, Research and
Development Facilities and Quality Assurance/Quality Control
Laboratories

EPA's definition of paint and allied product manufacturing and lack of
specificity in the applicability section of the Proposed Rule may
have the unintended consequence of expanding the rulemaking well beyond
the defined area source category – with the potential to
affect virtually all surface coating operations at area sources.  As
written, the rule can be interpreted to apply to all types of painting
operations at virtually any area source facility, regardless of the
manufacturing industry.  This includes industrial maintenance
activities at manufacturing sites, such as painting tanks, pipes or
facility structures, as well as facilities that coat products for any
segment of the manufacturing industry.

In fact, based on the rule’s definition of “paint and allied
product manufacturing processes," defined as including “any, all, or
a combination of, weighing, blending, mixing, grinding, tinting,
dilution or other formulation,” EPA broadens the rule so that it could
even be interpreted to apply to a homeowner, small business owner, or
retail outlet, that mixes solvent or pigment into tint bases to adjust
for color or viscosity.  The rule’s applicability and definition
also cover nonproduction. Thus, the rule’s applicability must be
narrowed to the subject source category – other area sources and
product surface coating operations must be specifically exempt as well
as industrial maintenance coating operations at all manufacturing
facilities, QA/QC operations at paint manufacturing facilities, and
Research and Development Facilities.

There is precedence for exempting these activities in the major source
NESHAPS for the MCM as well as the MACT and Areas Source standards
for various surface coating categories.   Without critical
clarification of rule’s scope in the final rule, EPA will subject
thousands of facilities and activities to a rulemaking beyond its
authority.  NPCA/FSCT recommends additions to Section 40 CFR §63.11599
– most of which are boilerplate provisions that should have been
included in the Proposed Rule ((d)(1) and (2) discussed above):

“§63.11599(d) The requirements for paints and allied products
manufacturing area sources in this subpart do not apply to operations
described in paragraphs (d)(1) through (7) of this section.

(3) Research or laboratory facilities, as defined in section 112(c)(7)
of the Clean Air Act.

(4) Facility maintenance operations, defined as operations performed as
part of the routine repair or renovations of equipments, machinery, and
structures that comprise the infrastructure of the affected facility and
that are necessary for the facility to function in its intended
capacity.  Facility maintenance also includes operations associated with
the installation of new equipment or structures, and any processes as
part of janitorial activities.  Facility maintenance include operations
on stationary structures or their appurtenances at the site of
installation, to portable buildings at the site of installation, to
pavements, or to curbs.

(5) Affiliated operation located at surface coating manufacturing
facilities.  Affiliated operations include, but are not limited to,
mixing or dissolving of coating ingredients; coating mixing for
viscosity adjustment, color tint or additive blending, or pH adjustment;
cleaning coating lines or coating line parts; handling and storage of
coatings and solvent; and conveyance and treatment of wastewater.

(6) Incidental business activities, including pour-off of paint, paint
blending, and paint tinting activities occurring at paint manufacturing
locations, distribution centers or paint retail stores.

(7) Quality assurance/quality control laboratories.”

In addition, the definitions of “Paint and Allied Product
Manufacturing” and Paint and Allied Product Manufacturing Process”
should be revised to the following:

“Paints and Allied Product Manufacturing means the original
manufacture and production of paints inks, adhesives, stains, varnishes,
shellacs, putties, sealers, caulks, and other coatings, for sale to or
use by downstream industrial, commercial and consumer users, as defined
by the term Paints and Allied Product Manufacturing Process in this
subpart, the intended use of which is to leave a dried film of solid
material on a substrate.  Paints and allied product manufacturing does
not include the manufacture of:

(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 such as the weighing, mixing, tinting, blending,
diluting, or thinning of paints or allied product by users of paints and
allied product to ready those materials for application.

“Paint and Allied Product Manufacturing Process means all the
equipment which collectively functions to originally manufacture and
produce a paint[s] or allied product at a paint or allied product
manufacturing facility that creates and supplies these product materials
for sale to or use by downstream industrial, commercial and consumer
users.  It does not cover mixing, blending, diluting, stabilizing
tinting, or any other handling by downstream users of these product
materials (e.g., industrial blenders of paint products; retail home
improvement stores). 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. Quality assurance and quality control
laboratories are not considered part of a paints and allied product
manufacturing process.”

I.	EPA Should Allow Facilities to “Opt-Out”

In addition to these exemptions and clarifications to the applicability
section, NPCA/FSCT requests that EPA include a pollution prevention
alternative that would exempt a facility from the rule’s requirements
if a facility eliminates all use of the target HAPs.  In other words, a
facility subject to this rule could “opt out” of the rule in the
future if the facility eliminated the processing, use, production or
generation of the target HAPs.  Such an incentive would result in a
“synergistic win-win-win effect” in that HAP removed from coatings
products also result in HAP reductions all along the supply chain. For
example, a no HAP resin used in coatings would reduce HAP emissions from
the upstream resin manufacturing, the coating manufacturing operation,
as well as the downstream surface coating facility.  If EPA does not
include an opt-out provision, there is no incentive for coatings
manufacturers or their raw material suppliers to move away from these
HAPs.  Additionally, 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.  In fact, the operation of this equipment in the absence of HAP
may result in environmental harm – with the consumption of more
electricity and natural gas, the generation of more greenhouse gases,
and the increased potential of landfill disposal of removed particulate
material.  Just the cost and burden of the continued recordkeeping and
reporting the facility would still be subject to despite using no target
HAP should be ample reason to provide this pollution prevention
alternative.

NPCA/FSCT 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, and while EPA staff has unofficially
indicated they support this view, NPCA requests that EPA officially
confirm that this policy does not apply to this final rulemaking and/or
facilities who no longer use the target HAP after the date of
implementation have the ability to opt-out of the rule.

J.	A Pollution Prevention/Product Stewardship Incentive for Trivalent
Chromium Should be Incorporated

If over the objection of NPCA/FSCT, EPA does not include either a higher
OSHA de minimis threshold (1.0%) for trivalent chromium or a mechanism
for a facility to opt out of the Paint and Allied Products Manufacturing
rulemaking, EPA must instead include a pollution prevention/product
stewardship incentive for trivalent chromium in the final rulemaking.

With respect to Chromium – EPA is aware that there is a significant
difference between “hexavalent chrome” and “trivalent chromium.”
Trivalent chromium has a relatively benign nature as compared to
hexavalent chrome and the paint and coatings industry has, in fact,
replaced hexavalent chrome where possible.  EPA recognized this trend
in the Area Source Standards for Nine Metal Fabrication and Finishing
Source Categories.  However, the Proposed Rule continues to list
“Chromium Compounds” instead of the target HAP of concern –
hexavalent chromium.  NPCA/FSCT suggests that EPA provide industry with
an incentive to reformulate products containing the problematic
hexavalent chromium to trivalent chromium such that if the only HAP of
concern was trivalent chromium being processed, used, produced or
generated that the facility could “opt-out” of the Paint and Allied
Products Manufacturing area source rulemaking.

IV. Proposed Controls/Work Practice Standards Must Be Revised

A.	EPA Should Allow Current Operating Permit Requirements

NPCA/FSCT supports EPA’s approach that facilities are exempt from the
obligation to obtain a permit under 40 CFR part 70 or 71, provided they
are not otherwise required by law to obtain such. As EPA correctly noted
in its preamble to the proposed rule, many of the facilities that would
be affected are small entities “which lack the technical resources
that would be needed to comply with permitting requirements and the
financial resources that would be needed to hire the necessary staff or
outside consultants.”  However, given the fact that many larger
facilities already have operating permits that require the same or
similar work practice standards and particulate controls, EPA should
allow compliance with these permit conditions to satisfy the
requirements of the Area Source standard.  In order to limit duplicative
requirements and decrease regulatory burden, if any equipment at an
affected source that is subject to the Area Source rulemaking is also
subject to requirements under operating permits, at the very least,
compliance with the recordkeeping and reporting requirements under the
operating permit should be deemed to satisfy the recordkeeping and
reporting requirements of the Area Source rule.  Facilities can make
this designation via their initial notification and/or through their
notification of compliance status report.

NPCA/FSCT recommends the following language be added to 40 CFR §
63.11602 (a)(2):

“(2) Ongoing particulate control device inspections and tests.
Following the initial inspections, you must perform periodic inspections
of each PM control device according to the requirements in paragraphs
(a)(2)(i) or (ii) of this section or you may elect to continue to comply
with the inspections, recordkeeping and reporting requirements required
by existing operating permits as designated via the initial notification
and/or notification of compliance status report. If you elect to comply
with requirements in paragraphs (a)(2)(i) or (ii) of this section you
must record the results of each inspection according to paragraph (b) of
this section and perform corrective action where necessary. You must
also conduct tests according to…”

B.	Limit Baghouse Requirement to High Speed Dispersion Tanks Only

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. As stated previously, NPCA/FSCT agrees with EPA that
after the addition processes, the pigments and associated metal HAP are
in solution and emissions are minimal. Please note that grinding and
milling occurs after the addition process when the pigments are in
solution, so NPCA/FSCT questions whether particulate controls are needed
during the grinding and milling stage. Further – many grinding and
milling equipment are fully enclosed so there is no feasible way
emissions could be collected during these processes anyway.  Thus,
particulate controls should only be required when pigments and solids,
not in slurry, solution, or paste form, are added to the high speed
dispersion tanks.  NPCA/FSCT recommends the following language be added
to 40 CFR § 63.11601:

“(a) For each new and affected source, you must capture particulate
emissions and route them to a particulate control device meeting the
requirements of this section during the addition of dry pigments to high
speed dispersion vessels.”

C.	Operators Must have the Ability to Open Covers/Lids on all Vessels

EPA correctly recognized the need for operators to open mixing vessel
covers/lids for quality control testing of the product and/or the
addition of pigments or other materials to meet final product
specifications. However, operators need to open nearly every process or
storage tank at sometime for quality control testing, adding of
materials or removal of product from the vessel – not just mixing
vessels. Therefore, consistent with the MCM, NPCA/FSCT requests that EPA
revise the regulation such that operators be 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.

D.	Vessel Cover and Lid Requirements Are Not Workable

The Proposed Rule mandates that process and storage vessels must be
equipped with covers and lids that can be of solid or flexible
construction, provided they do not warp or move around during the
manufacturing process and maintain contact along at least 90 percent of
the vessel rim. NPCA/FSCT believes these requirements would be nearly
impossible to institute both from a compliance and an enforcement
standpoint.  It is nearly impossible to confirm that a lid or cover
touches at least 90 percent of the vessel rim at any given time.  How
would a person even measure for such?  Further, if a cover is of
flexible construction, it by its very definition will most likely move
around during the manufacturing process.  Similarly, solid lids may
“move around,” and/or warp over time.  NPCA/FSCT believes that the
very covers/lids that EPA used to estimate costs for this rule –
either a sheet of plywood (4 feet by 4 feet) or two sheets of plywood (8
feet by 8 feet) would most likely not meet either of these standards.
For example, even new plywood may be warped or may warp over time, and
it is highly unlikely that EPA’s plywood cover/lids example would
touch at least 90 percent of the vessel rim.  Similarly, flexible
“shower cap” lids may move and shift position during the
manufacturing process.

In addition, the Proposed Rule mandates that process and storage vessels
must be kept covered when not in use.  NPCA/FSCT questions whether or
not this is really EPA’s intent?  Why would you need a cover on a
vessel that was not being used?  Given the fact that it is nearly
impossible to determine compliance with the “90 percent of the vessel
rim” requirement or with such a nebulous concept of a lid that “does
not warp or move around during the manufacturing process” and that
there is no reason to cover vessels that are not in use, NPCA/FSCT
requests that these requirements be deleted from the rule.

Instead, NPCA/FSCT recommends that EPA use the MCM language that states
a manufacturing vessel must be equipped with a cover at all times when
in HAP service, except for material additions, removal of product,
adjustments, and quality assurance/quality control procedures.
NPCA/FSCT recommends the following language for 40 CFR §63.11601(b)(1)
and (2).

“(1) Process and storage vessels, except for process vessels which are
mixing vessels, must be equipped with a cover or lid that must be in
place at all times when the vessel contains a target HAP, except for
operator access for quality control testing of the product, removal of
product, and during the addition of pigments or other material used to
meet the final product specifications.”

“(2) Mixing vessels must be equipped with a cover or lid, except for
safe clearance of the mixer shaft, that must be in place at all times
when the vessel contains a target HAP, except for operator access for
quality control testing of the product, removal of product, and during
the addition of pigments or other material used to meet the final
product specifications.”

E.	Particulate Control Device Records May Not be Available

The Proposed Rule requires that the manufacturer specifications and
recommendations for each particulate control device must be onsite at
all times.  However, there are facilities that have older particulate
control devices for which the manufacturer information may not be
available.  These devices are still effective at capturing and removing
particulates.  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.  If the
original records are not available, the source should follow best
operating practices for the devices.  NPCA/FSCT proposes the following
language for 40 CFR §63.11603(c):

“(3) You must keep a copy of the particulate control device
manufacturer specifications and recommendations on site at all times, if
they are available from the manufacturer.”

F.	A Baghouse Control Threshold Must be Provided

If over the objection of NPCA/FSCT, EPA does not include an
applicability threshold of for facilities with emissions of 100 lbs/year
or less of the target HAP in the final rule for Paints and Allied
Products Manufacturing, EPA must instead include a baghouse control
threshold in the final rulemaking.  The Proposed Chemical Manufacturing
Area source rule established subcategories for both organic HAP and
metal HAP above which add-on control requirements are needed. Management
practices are the only proposed emission requirements for the
subcategory of batch process vents emitting less than 19,000 lb/yr of
organic HAP. This threshold was selected because all facilities with
emissions above this level are expected to be using HAP solvents.
Further, the cost effectiveness values increase significantly above this
threshold.

EPA also evaluated impacts for two groupings or subcategories for metal
HAPs. One set of subcategories is based on a threshold of 100 lb/yr. of
emissions, and the other set of subcategories is based on a threshold of
400 lb/yr of uncontrolled emissions. EPA considered a threshold because
of an observed difference in operation depending on the emission rate.
Nearly all Chemical Manufacturing facilities with uncontrolled emissions
above 400 lb/yr produce a product that contains the metal HAP as an
intended part of the product. On the other hand, metal HAP from a
majority of facilities with emissions below 100 lb/yr. are often from
impurities in raw materials or combustion products.

NPCA suggests that there is an observed difference in operation
depending on the emission rate for the Paint and Allied Products
industry as well and as such groupings or subcategories are warranted.
Facilities with emissions of cadmium, chromium, nickel and lead above
400 lb/yr produce products that contain the metal HAP as an intended
part of the product. This could include military coatings where
hexavalent chromium pigment is added as a corrosion inhibitor, lead
pigments added to road marking paints or niche coatings containing large
amounts of nickel.

It is important to note that EPA has legal authority and precedent for
setting a separate subcategory for baghouse control since numerous MACT
and area source standards have control thresholds.  Not only does a 400
lb/yr particulate add-on control threshold make sense from a cost
perspective, considering the fact that the cost effectiveness values of
both the large and small model plants are very high, whereas the cost
effectiveness value of the 400 lb/yr should be reasonable, it follows
industry practice. Smaller facilities generally do not have baghouses,
where larger facilities, those above the 400 lb/yr generally will.  In
fact, EPA’s own estimates, which are probably low, claim that 21% or
460 facilities that will be subject to the rulemaking do not have
baghouse controls.  Thus, taking into consideration both costs and
industry practices, EPA must establish a baghouse control threshold.

NPCA/FSCT recommends the following language be added to 40 CFR §
63.11601:

“(a) For each new and affected source with uncontrolled Paint and
Allied Products Manufacturing metal HAP emissions above 400 lb./year,
you must capture particulate emissions and route them to a particulate
control device meeting the requirements of this section during the
addition of dry pigments to high speed dispersion vessels.”

V. Monitoring and Recordkeeping Requirements Must be Revised

A.	EPA Should Allow for a Modification to Method 9 Commonly Used in
State Air Permits

Paint and allied products facilities emissions are typically zero or
very low (less than 5% opacity).  In fact, given that the industries
emissions are so low, modifications to Method 9 have been allowed in
permits in a number of jurisdictions.  The modified method generally
follows Method 9 but assumes that a non-certified observer can determine
the presence of any visible emissions, without quantifying the percent
opacity. If any visible emissions are observed then maintenance is
required to promptly check the dust collectors to insure that they are
operating correctly. If it is determined that there is a malfunction,
then corrective action must be taken immediately and then conduct a
follow up inspection.

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 the process
shut down. The certified observer could be either an outside consultant
or a company employee. This modification is common in many local and
state air permits for paint and coatings facility, and should be
incorporated into any final rule for this area source category.

Finally, the proposal envisions that the particulate control devices
exhaust directly to atmosphere.  However, there are facilities where
process particulate control devices are used (powder coating operations)
that do not vent to the atmosphere.  It should be clear that the visible
emission test must be conducted at the exhaust point to the atmosphere,
not at the outlet of the device.

In order to reduce burden on the industry (especially for small
businesses), NPCA/FSCT recommends the following revised language at 40
CFR §63.11602(a)(1)(iv) and (a)(2)(iii) – initial and every 6 months
testing:

“For each particulate control device, you must conduct an initial and
subsequent 30 minute visible emission tests every 6 months using the
following method:

Observe whether any particulate emissions are visible from the
particulate control device. The visible emission test must be conducted
at the point where vapor that passes through the particulate control
device exhausts to the atmosphere.

If no visible particulate emissions are observed then no further
observations are required. A record of the test is to be recorded.

If visible emissions are observed, the dust collector should be checked
to insure that it is operating correctly. If it is determined that there
is a malfunction, then corrective action according to the equipment
manufacturer’s specifications or instructions or best operating
practices and retest within 15 days or document the reason for any delay
in retest.

If visible particulate emissions are observed after maintenance has been
completed, the facility must conduct a 30 minute visible emission test
using Method 9 (40 CFR part 60, appendix A–4) and if the emission
limit is being exceeded the process is to be shut down.”

B.	Dry Particulate Control System Leak Inspections are not Warranted

Most particulate control system ductwork at coatings manufacturing
facilities operate under a vacuum in order to collect and transport
particulates to the control device. Since leaks in ductwork under a
vacuum cannot be visually detected, visual leak inspections of dry
particulate control system ductwork should not be required.  In
addition, EPA has historically exempted the inspection of duct work or
vent systems that are designated as unsafe to inspect, or
difficult-to-inspect. NPCA/FSCT therefore suggests the language at 40
CFR §63.11602(a)(1) be revised as follows:

“(ii) Except for ductwork under negative pressure or vacuum, unsafe,
or difficult to inspect,  you must inspect and maintain each dry
particulate control unit according to the requirements in paragraphs
(a)(2)(ii)(A) and (B) of this section.”

C.	5% Opacity Limit is not GACT

EPA claimed that a review of area source NESHAP opacity limits indicated
several examples of particulate control devices being subject to zero or
very low visible emission tests. As such, EPA believes that an opacity
limit of 5% is an appropriate standard. However, NPCA/FSCT reviewed the
44 area source NESHAP operating permits in the docket for this
rulemaking and found that in fact, only 3 had a 5% opacity limit – as
for the rest, 11 had a 20% limit, 2 had 30% limit, 13 had 40% limit, and
2 had observed or no opacity limit.  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.  Clearly, as very few
facilities have opacity limits of 5% and most have opacity limits of 20%
to 40%, EPA has not appropriately set the standard.  A GACT standard in
this case, would be an opacity level of 30%, which is reasonable and
warranted given what is actually occurring in the industry today.  As
most of the affected sources under this rulemaking are small businesses,
NPCA/FSCT does not believe that EPA should include an opacity emissions
limit requirement in the final rulemaking.  However, if EPA does decide
to codify an opacity emissions level, it should be no less than 30%.

D.	Changes to Recordkeeping and Reporting Requirements are Warranted

Section 63.11602(a)(1) requires initial system testing within 60 days of
the compliance date or within 60 days of startup of a new system.
NPCA/FSCT recommends that consistent with other federal rules, EPA allow
180 days to complete initial inspection and testing.

In addition, Section 63.11603(a)(1) requires that existing sources
notify EPA within 120 days of the publication of the final rule and for
new sources, within 120 days of startup. Notification of Compliance
Status found in §63.11603(a)(2) requires that all sources report on
their compliance status within 120 days of their respective compliance
date. NPCA/FSCT recommends that consistent with other federal rules
these deadlines be extended to 180 days to provide time for facilities
(especially small facilities) to comply.

Further, there seems to be conflict between Section 63.11603(b) that
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.
However, Section III.E of the preamble would require that a responsible
official sign off within 15 days of the end of each month that all the
requirements were met in the preceding month. NPCA/FSCT recommends that
the rule text is warranted since requiring a responsible official to
sign off each month on the various maintenance and inspection logs is
overly burdensome.

VI.  EPA’s Emission Estimation and Cost Effectiveness Estimates are
Arbitrary

A.	  HYPERLINK \l "_Toc12942063"  EPA Overestimated Emissions From The
Paint And Allied Products Industry

As mentioned earlier, most of the methylene chloride emissions
documented by EPA are from facilities that package paint stripper/paint
remover products. Since these products are specifically excluded from
this rulemaking since they do not leave a dried film of solid material
on the substrate – EPA should discount any emissions that result from
packaging of methylene based paint strippers and paint removers. In
addition, one company that produces nickel-based coatings accounted for
most nickel emissions from the industry. Again EPA should discount the
nickel emissions from this one company. Finally, it appears that EPA
inadvertently included several pigment manufacturing operations in the
NEI database that resulted in increased metal emissions for the
industry. NPCA/FSCT 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.

B.	EPA did not use NPCA Facility Data

EPA specifically mentions NPCA/FSCT emission comments from the MCM MACT,
however EPA disregards these comments in the Paint and Allied Products
Area Source Rule. Specifically, EPA mentions that NPCA/FSCT provided VOC
concentration and flow rates for 36 emission streams from 10 facilities.
This data indicated that the majority of emission streams had a flow
rate of 1,750 cfm and a concentration of no more than 300 ppm VOC. It is
important to note that the NPCA/FSCT concentration data was VOC data but
EPA arbitrarily disregarded this data and used AP-42 VOC estimates
instead. EPA used estimated concentrations of 626 ppm for the small
model plant and 3,921 ppm for the large model plant. These estimates are
orders of magnitude above the real data provided to the Agency and as a
result EPA’s estimated emissions for small facilities are probably
double actual emissions and for larger facilities, probably 10 times too
high. Clearly, EPA disregarded NPCA’s comments when it used
arbitrarily high VOC concentrations for the model plant estimates, and
thus, must go back and revise the rule using accurate data.

C.	AP-42 Emission Estimates are not Accurate

EPA used the old and out-dated AP-42 emission factor of 1.5 lbs. VOC/100
lbs of product that were developed based on solvent based coatings from
the 1950’s and are not representative of the today’s  high solids
and waterborne coatings. EPA’s Chapter 8 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.  Since EPA is unclear whether the facilities tested in
preparing this factor actually represent a random sample of the
industry, EPA assigns the AP-42 factor for paint and varnish
manufacturing an emission factor rating of C.  Emission estimates based
on AP-42 are generally double actual emissions and emissions estimated
using EIIP source specific techniques and should not be used for a
rulemaking as significant as this one – particularly with its impact
on small businesses.  EPA must revise its estimates using accurate
models and accurate data.

D.	EPA’s Facility Operation Assumptions are Flawed

EPA assumed that Paint and Allied Product Manufacturing facilities
operate 250 days per year and 8 hours per day, when in fact, many
operate 24 hours a day, 5 days per week. The process of manufacturing a
coating takes several days to complete and as a result many facilities
run 2nd and 3rd shifts.  Given the fact that EPA model plant estimations
are based on this flawed assumption, EPA’s model plant assumptions are
at least 3 times too high.  EPA must revise its estimates using accurate
assumptions.

E.	  HYPERLINK \l "_Toc12942070"  EPA’s Analysis of Thermal Oxidation
is Fatally Flawed

NPCA is concerned that EPA’s estimated thermal oxidation costs are too
low for the small and large model plants. NPCA thermal oxidation
estimates from the MCM MACT were in the $16,000/Mg range and these were
for major source facilities that are much larger than the large model
plant used in the Proposed Rule. It is also important to note that the
NPCA thermal oxidation estimates did not include baghouses and fire
safety equipment and controls (flame arresters, nitrogen purge systems,
fire suppression systems, rupture disks, etc.).  Further, EPA did not
consider the cost of the ductwork which approaches (and even exceeds)
the capital cost of the oxidizer unit itself.  The NPCA estimates did
not even consider secondary impacts like NOx, Sox, CO. or GHG emissions.
 As a result the cost effectiveness of the small and large model plants
are at least double or triple EPA’s estimate.   EPA must revise its
estimates to reflect the true costs associated with this rulemaking.

F.	  HYPERLINK \l "_Toc12942071"  EPA Arbitrarily Used Unrealistic
Design Parameters in Assessing Process Tank Covers

EPA assumed that only 15% of process tanks would be in use at any one
time and therefore would need to be covered. EPA states that it
developed this estimate based on NPCA data. Please note that NPCA
commented that 10-40% of high dispersion tanks could be operating at any
one time – so the use of the 15% assumption for all tanks is not
correct. Further, EPA did not account for the fact that the rule
requires process vessel covers on all process tanks – both mixing and
storage process tanks – even when not in use. Since many tanks are
storing product at any given time, nearly every tank will need a cover.
EPA assumed that 3 vessel lids would be needed for the small plant, and
19 for the large model plant. Using EPA’s estimates – all 42 small
and 180 large process vessels would need covers.

While some facilities may use wood covers for very small process tanks,
most facilities utilize metal covers. EPA did not include costs of
hinges, handles etc, and it is unclear how two sheets of plywood would
be connected in order to cover a larger process tank. Moving sheets of
plywood also creates a worker safety hazard – given the size and
weight of the plywood. Plywood is also combustible, not conductive, will
warp quickly and cannot be cleaned. It is also very unlikely that
plywood would last 10 years; it is likely that it would only last 6
months to 1 year at best.  Splinters from plywood are also a product
contamination issue as well. Lastly, EPA assumed that the largest
process vessel to be covered by plywood would be 1,441 gallons (two
sheets of plywood would be needed).  However, EPA estimated that at
least 39 mixing and storage tanks were greater than 2,500 gallons in
size.  In addition, assuming that half of the process tanks in the size
range 1,001 gallons to 2,500 gallons are greater than 1,441 gallons –
nearly 55 tanks (40 in the large model plant and 15 in the small model
plant) would be greater than EPA’s 1,441 gallon assumption. Clearly,
just from a size perspective – plywood could not be used on all of the
model plant process vessels.

Further, as mentioned earlier it is very unlikely that plywood
(especially two sheets of plywood) cover/lid would touch at least 90
percent of the vessel rim. It is not even clear that the $3,600 dollar
metal lid/cover that EPA estimated in the MCM MACT would meet the “90%
touching the vessel rim” standard. Thus, the $28 and $34 cost
estimates tank covers for the small and large model facilities,
respectively, is grossly inaccurate.  EPA must revise these numbers and
should instead use the MCM estimate of $3,600 per lid.

G.	EPA’s Analysis of Particulate Controls is Problematic

EPA estimated in the MCM MACT the cost of disposing of baghouse dust.
It appears that EPA assumed $150 per year to dispose of collected
baghouse dust. Assuming nearly 5 tons and 35 tons of baghouse dust will
need to be disposed of annually for the small and large model plants at
$1 per pound – the cost of baghouse dust is nearly $10,000 and $70,000
per year respectively.   EPA must revise their estimates using accurate
data.

VII.  Additional Concerns

A.	Implementation Date Should be Three Years

NPCA requests that the currently proposed implementation deadline be
increased from 2 years to 3 years.  NPCA believes that the proposed 2
year implementation period is arbitrary and capricious, since nearly
every MACT and Area Source NESHAP published prior to this rule has a 3
year implementation period. Further, EPA notes that some facilities may
be subject to EPA rules for the first time and most of the facilities
subject to this rule are small businesses with 50 percent of these
having less than 10 employees. This is compounded by the fact that this
rule has an unusually short comment period and must be finalized in an
expedited manner – such that many small paint manufacturers may not
even be aware of the rulemaking and extra effort will be necessary to
alert them to the final rule.  Further, small businesses need ample time
to secure funding and engineering resources in order to install
particulate controls and tank covers/lids.  Lastly, a 3 year
implementation period would give paint manufacturing facilities another
12 months to eliminate benzene, methylene chloride, cadmium, chromium,
lead and nickel from their coatings formulations. NPCA believes EPA
would favor pollution prevention reformulations as opposed to burdensome
regulations.  Thus, NPCA requests a 3 year implementation deadline.

B.	Use of Emission Estimation Techniques Needs to be Emphasized

In order to limit the burden on industry NPCA recommends that EPA make
it clear that facilities can utilize the emission estimation techniques
included in EPA’s Emission Inventory Improvement Program (EIIP) Volume
II Chapter 8 Methods for Estimating Air Emissions from Paint, Ink, and
Other Coating Manufacturing Facilities, as well as other “canned”
emission estimation programs, including but not limited to EMACT
software available on the market today. Further, facilities should also
be able to utilize emission estimation techniques from air permit
applications, especially considering the time and expense that would be
needed to redo these emissions estimations.

C. 	Compliance Assistance Tools Must Be Readily Available

NPCA/FSCT requests that EPA provide compliance assistance materials in a
timely manner before the effective date of the final rule.  The Small
Business Regulatory Enforcement Fairness Act (SBREFA) mandates that EPA
provide compliance assistance tools.  SBREFA requires that all federal
agencies prepare plain language “small entity compliance guides” for
every new rule that requires Regulatory Flexibility Act analysis (i.e.,
that has a significant economic impact on a substantial number of small
entities).  In addition, EPA develops compliance assistance guides for
rules based on overall benefit to the regulated community and potential
benefit to public health and the environment.[1]

NPCA/FSCT notes that the Proposed Rule made no reference to compliance
assistance tools or guidelines with regard to this rulemaking.
Compliance assistance planning should have been fully integrated into
the rule development, thereby allowing input from appropriate EPA staff,
State regulators, the regulated community and other stakeholders.
Compliance assistance tools should be made available at the same time,
or shortly after the final rule promulgation.  In order to realize this,
EPA should start developing these tools now.

The EPA Innovative Approached Task Force Discussion Draft dated February
23, 1999, states that compliance tools should be:

       Plain language guides, self-audit checklists and
training materials should be issued at the same time as a new rule;

       In the interest of efficiency, and to ensure the
greatest reliability, these tools should be developed by, or at least
with the active involvement, of the rule writer; and

       To be effective, these tools must be published at the
same time as a new rule; regulated entities cannot wait to come into
compliance.

NPCA/FSCT requests that if EPA has not started developing compliance
tools for the final rule, they do so as soon as practically possible.
This is particularly necessary for NPCA/FSCT’s small business member
companies.  Given the complexity of this regulation and its astonishing
reliance on regulations previously promulgated for other industries, it
is vitally important that EPA develop and publish compliance tools at
the same time as the final rule, in order to assure that the coating
manufacturing industry can appropriately comply with the new
regulations.

VIII.  Conclusion

NPCA/FSCT strongly believes that based on improved data and accurate
economic estimates, the Paint and Allied Product Source category should
be removed through public notice, as EPA has the authority to do so
under its Strategy.  Absent this, EPA must redefine or clarify the
category to exempt those small facilities upon which the category
listing was not based by instituting a de minimis applicability
threshold.  In addition, the rule’s applicability and affected source
category must be limited to those target HAP for which the listing was
predicated; there must be exemptions for those processes and/or
facilities which pose little to no environmental risk; the rule’s
language must be revised to address overlap with other source categories
and boilerplate exemptions must be granted; and the preamble to the
final rule must make it clear that EPA’s “once-in/always-in”
policy does not apply to area source facilities in order to provide
pollution prevention alternatives to the final regulation.  Further, the
final rule’s language must be revised to reduce the costs and burdens
associated with the rulemaking (particularly on small businesses),
including limiting control requirements to those tanks which present the
emission risk and allowing for an emissions threshold before control
technology is required; allow for workable “cover/lid” requirements;
and provide for  achievable monitoring, testing and reporting
requirements. Lastly, EPA must provide a 3 year implementation date for
this rulemaking along with appropriate compliance assistance tools.

In advance, thank you for your consideration of our comments. Please do
not hesitate to contact us should you have any questions or need
additional information.

Sincerely,

David F. Darling, P.E. 				Alison A. Keane, Esq.

Director, Environmental Affairs			Counsel, Government Affairs

Cc: 	Melissa Payne, EPA

	Cortney Higgins, OMB

** Sent in Hard Copy and to the E-Docket **

Attachment A

Reasons for Reduced HAP Emissions in the Coatings Industry

The HAP emissions from the coatings industry have decreased since 1990
and will continue to decrease in the future for the reasons documented
below.

Industry Changes

The coatings manufacturing industry has changed drastically over the
last two decades, with significant improvements over the last five
years.  The industry is a customer and technology driven industry.
NPCA/FSCT members have consistently led the regulatory curve in reducing
both the toxicity and Volatile Organic Compound (VOC) and Hazardous Air
Pollutant (HAP) concentrations of our products.  The introduction of
high solids, low VOC paints; the use of low vapor pressure solvents,
which results in lower air emissions through manufacturing (many times
an order of magnitude less then MEK or toluene, which were prevalent in
the 1980's); and the increasing use of powder coatings, have all
significantly reduced VOC and HAP emissions from our manufacturing
processes as well as end user processes.  These changes have been made
in response to market forces, which in turn leads to a response in
technology.

Business conditions have also led to dramatic changes in our
manufacturing process.  One example is smaller batch sizes.  As business
pressures have increased on both the manufacturing and surface coating
side, inventory levels of paints have been reduced.  Our industry has
become more of a "made to order" oriented business then a "made to
stock" business.  This has in turn led to manufacturing and other
technological advances.  It is anticipated that this will not change,
but in fact, smaller batch sizes and shorter lead times will prevail,
especially in the industrial and specialty coatings arenas.  The
predominance of smaller batch sizes, which means paints are being made
in one container and not transferred, eliminates emissions from
transfer/loading operations during manufacturing. Further the industry
is trending towards using slurries as opposed to dry pigments where
possible to minimize exposure and emission issues related to HAP metals.

The need to achieve compliance status with existing regulations and
action with regard to near term regulations has exacerbated the need for
coating operations to adopt new coatings and/or application and
abatement technologies.  This in turn has fueled a great expansion of
coatings products and technologies developed to achieve regulatory
compliance.  This trend is readily apparent in architectural coatings,
which represent nearly 50% of the total paint sold in the United States.
Water based coatings have continued to displace their solvent based
counterparts and in 2002 accounted for approximately 83% of the volume
and 80% of the value, compared to 72% of the volume and 66% of the value
in 1985.

Additionally, for Original Equipment Manufacturer coatings (OEM), where
coatings must meet very exacting specifications and perform under a
variety of restrictive conditions, plant abatement technologies such as
incineration and recovery, coating reformulation, adoption of newer
coating technologies, improved application equipment and better handling
procedures are all methods used to control VOC and HAP material.
Lastly, special purpose coatings manufacturers, comprised largely of
industrial maintenance and automotive refinishing production, continue
to pursue greener products, such as powder coatings, radiation-cured
coatings, or high solids technologies, but also better end user
housekeeping and transfer efficiency requirements.

The Miscellaneous Coatings Manufacturing (MCM) MACT Will Reduce HAP
Emissions

It is important to note that EPA has implemented Maximum Achievable
Control Technology (MACT) regulations for major source coatings
manufacturers. These facilities have installed air pollution controls
and implemented work practices that will directly reduce HAP emissions.
In fact, EPA has estimated that the MCM will reduce HAP emissions from
the industry by 4,900 tons/year.  Since these reductions are the result
of regulatory actions, these reductions are assured to continue in the
future.

Surface Coating MACT Standards Will Significantly Reduce HAP Emissions
From Coating Manufacturing Facilities

In addition, with the concurrent implementation of the National Emission
Standards for Hazardous Air Pollutants (NESHAP) for the numerous Surface
Coating categories under Section 112 of the CAA (hereinafter referred to
as “Surface Coating MACTs”), our customers have and will continue to
demand even lower VOC and HAP coatings (often to avoid MACT standards at
their facilities), further driving coatings technology and manufacturing
to reduce both VOC and HAP limits.

NESHAP Surface Coatings categories with MACT standards include
shipbuilding, wood furniture, aerospace, fiberglass boat, metal coil,
paper & other web, metal furniture, large appliance, wooden building,
plastic parts, fabric coating, miscellaneous metal parts, auto & light
duty truck, and metal can. These Surface Coating MACTs will
significantly reduce the HAP emissions from coatings manufacturing
facilities, as our industry's customers will increase their already
great demand for compliant coatings since these MACTs will force surface
coating application facilities to use low-HAP coatings in lieu of
installing expensive controls.  With an increased use of low-HAP
coatings by surface coating facilities, the paint production industry
will follow our customers’ lead and produce low HAP "compliant"
coatings.  Most, if not all of these standards, require at least a
90-95% reduction in surface coating HAP emissions.  A majority of these
reductions will be the result of reformulation by the paint production
industry.  Eliminating 90-95% of the HAPs in coating products will
reduce emissions from coating manufacturing facilities as well.

In fact, EPA has estimated that the Surface Coating MACTs will reduce
HAP emissions by more than 260,000 tons/year. HAP reductions at the
surface coating operation are a direct result of the coating
manufacturer reducing the HAP content of the coating during the
manufacturing process.  If the manufacturer reduces the HAP content of
the coating by 90-95%, there will be a direct reduction in coating
manufacturing operations since much less HAP will be unloaded, stored,
added, mixed or transferred during the manufacturing process. Assuming
that 0.5% of HAP throughput is lost in the coating manufacturing
process, HAP emissions from coating manufacturers could be reduced by as
much as 1,300 tons/yr solely due to reformulation efforts for the
Surface Coating MACTs.

Surface Coating Area Source Rulemakings will reduce Urban Air Emissions

The recented finalized Miscellaneous Surface Coating Operation, Auto
Body Refinishing and Metal Fabrication and Finishing Area Source
rulemakings will reduce chromium, lead, manganese, nickel, and cadmium
emissions from coatings manufacturing operations since in the future
many surface coating operations subject to these rules will request
coatings that do not contain these Urban HAPs.

VOC Exemptions and HAP Delistings Will Reduce Air Emissions

EPA’s exemption of VOC’s, delisting of HAP’s, and removal of
chemicals from the Toxic Release Inventory (TRI) chemical list will also
result in decreased TRI air release emissions from the coatings
manufacturing industry:

On November 29, 2004 the U.S. Environmental Protection Agency (EPA)
promulgated a final rule exempting the chemical t-butyl acetate (TBAC)
from control as a volatile organic compound (VOC).

On November 29, 2004 the U.S. Environmental Protection Agency (EPA)
promulgated a final rule “delisting” the chemical Ethylene Glycol
Monobutyl Ether (EGBE) from control as a hazardous air pollutant (HAP)
under the Clean Air Act (CAA).

On June 30, 2005 EPA removed as non-toxic the chemical methyl ethyl
ketone (MEK) from the TRI list of reportable chemicals.

On May 30, 2003, EPA proposed to delist the chemical MEK from control as
a HAP under the CAA.

Other Federal, State, and Local Regulations Governing Emissions From
VOCs and Heavy Metals Have And Will Continue To Further Reduce Air
Emissions

Architectural Industrial Maintenance (AIM) and automotive refinish rules
that severely limiting the use of VOCs in paint products have and will
continue to reduce not only VOCs from coatings manufacturing, but HAP
emissions as well.  Many States and local air districts have had AIM
regulations for several decades, however in 1999 EPA promulgated the
National AIM Rule estimated at reducing VOCs by 113,500 tons per year,
and an additional 31,900 tons per year for the National automobile
refinish coatings rule.   In addition, recently many northeast Ozone
Transport Commission (OTC) states have adopted even more stringent AIM
rules.

Importantly, the OTC states, California’s South Coast Air Quality
Management District, and the Lake Michigan Air Directors Consortium
(LADCO) states are currently developing even more stringent AIM
regulations that will probably be promulgated in the next several years.
Collectively, the regulations will drive the TRI release trend downward
for the coatings manufacturing industry in the near future and for years
to come.

In addition, regulations have impacted the amount of metals used in
coatings.  The Coalition of Northeastern Governors (CONEG) formed the
Toxics in Packaging Clearinghouse (TPCH) in 1992 to promote model toxics
in packaging legislation.  This model legislation was originally
drafted by the Source Reduction Council of CONEG in 1989. It was
developed in an effort to reduce the amount of heavy metals in packaging
and packaging components that are sold or distributed throughout the
United States. Specifically, the law is designed to phase out the use
and presence of mercury, lead, cadmium and hexavalent chromium in
packaging within four years in states that enact the legislation. The
legislation has been successfully adopted by nineteen states:
California, Connecticut, Florida, Georgia, Illinois, Iowa, Maryland,
Maine, Minnesota, Missouri, New Hampshire, New Jersey, New York,
Pennsylvania, Rhode Island, Vermont, Virginia, Washington and Wisconsin.
These regulations have in turn reduced metals in coatings products used
on packaging and thus, the coatings themselves.

Further, the California Air Resources Board (CARB) auto refinish
airborne toxic control measure has eliminated hexavalent chromium and
cadmium from automotive refinish coatings. Hexavalent chromium and
cadmium were determined by CARB to be without an identifiable threshold
of exposure level below which no significant adverse health effects
could be anticipated. This control measure will effectively eliminate
the use of hexavalent chrome and cadmium in autorefinish coatings in the
future.

In April 1998, the Occupational Safety and Health Administration (OSHA)
lowered the Permissible Exposure Limit (PEL) for Methylene Chloride.
The PEL for Methylene Chloride was reduced from 100 ppm to 25 ppm.  This
rulemaking, has greatly reduced, if not eliminated, the use of this
chemical as a raw material in paint and as a cleaning substance in paint
production. In addition, it is likely that OSHA will also lower the PEL
for hexavalent chrome in the near future as well.

The Consumer Product Safety Improvement Act of 2008 that lowered lead
levels in consumer paints from 600 ppm (1978 levels) to 90 ppm. All
consumer paints will be required to meet the 90 ppm standard by August
14, 2009.

Since 1993 the Green Seal green building standard (GS-11) for
Architectural paints has limited the use of methylene chloride, benzene,
cadmium, lead and chromium. GS-11 was recently revised in 2008 and bans
the use of HAP in Architectural Coatings as well.  Please note that
GS-11 is the basis of many other green building standards including the
Leadership in Energy and Environmental Design (LEED) certification
system.

The European Parliament and Council Directive (2000/53/EC) known as the
“End of Life Vehicles Regulation” or ELV which was adopted on
September 18, 2000 and prohibits the use of lead mercury, cadmium and
hexavalent chromium in automobiles manufactured or sold in the European
Union. This regulation has directly impacted any and all industries that
have any products that could be used in the manufacture of automobiles,
including coatings.  As a result this regulation has and will continue
to result in TRI air emission reductions for these chemicals.

Lastly, the European Parliament and Council Directive (2002/95/EC) known
as the “Restriction of the Use of Certain Hazardous Substances in
Electronic Equipment Regulation” (RoHS Regulation) will ban the
marketing of new electronic equipment in the EU that contain more than
permitted levels (to be established) of lead, cadmium, mercury,
hexavalent chromium, and both polybrominated biphenyl (PBB) and
polybrominated diphenyl ether (PDDE) flame retardants. These
restrictions are to apply to coatings products applied to electronic
goods, including coatings for plastic parts and casings. The regulations
are to go into effect in July of 2006, however many US-based electronics
companies marketing to the EU are questioning the US coatings suppliers
on the content of the restricted substances in their (coatings)
products. As a result many coatings manufacturers have curtailed or
severely limited the use of these substances in coatings manufactured in
the United States.

Industry's Voluntary Efforts Reduce Air Emissions

The paint and coatings manufacturing industry has historically been
progressive and proactive at putting forth industry programs that
improve safety, health and environmental practices in the manufacturing
setting and among commercial and consumer users of paint and coatings
products.

Coatings Care®, the paint industry’s health, safety and environmental
management initiative was launched in 1995 to help member companies
improve their performance through adherence to five codes of management
practice (Manufacturing Management, Product Stewardship, Transportation
and Distribution, Community Responsibility, and Security).  The Coatings
Care® program is being implemented by manufacturers throughout the US
(more details are available at   HYPERLINK "http://www.paint.org/cc"
http://www.paint.org/cc ), however the program has a global scope as
members of the International Paint and Printing Ink Council (IPPIC) have
embraced the initiative (see   HYPERLINK "http://www.ippic.org/ccis.htm"
 http://www.ippic.org/ccis.htm ) in Canada, Mexico, Europe, Australia
and Japan.  In the US Coatings Care® will be a condition of NPCA/FSCT
membership by January 2003.

In addition, many NPCA/FSCT members are also ACC’s Responsible Care®
participants, certified under ISO14000 and 14001 and were actively
involved in EPA's 33/50 program, as well as many other state and local
voluntary programs focusing on superior environmental performance and
improvement.  In fact, our progressive activities in these arenas have
already improved our environmental performance.

NPCA/FSCT and the paint and coatings manufacturing industry have been
active with EPA's National Environmental Performance Track program.
Performance Track rewards facilities and companies achieving top
environmental improvements – those that go above and beyond legal
requirements. NPCA/FSCT is a Trade Association Partner with EPA's
National Environmental Performance Track and as such promotes
Performance Track to member companies and facilitates enrollment. In
addition, NPCA/FSCT is a Sector Strategies Industry Partner, and as such
is active in developing sector-based strategies to address and overcome
barriers to environmental improvement, promote the use of environmental
management systems and track progress using performance metrics.

Conclusion

Clearly, as outlined above, there are numerous voluntary, regulatory and
industry trends that will continue to drive down TRI air emission for
the paint and coatings manufacturing industry in the future.  Since
these downward trends for both metal and organic chemicals are permanent
there is no need to further regulate the paint and coatings
manufacturing industry via an area source rulemaking.

 74 Fed. Reg. 26142 (June 1, 2009).

 Id at 26145.

 64 Fed. Reg. 38706, 38721 (July 19, 1999).

 67 Fed. Reg. 70427 (November 22, 2002).  See 64 Fed. Reg. 38706 (July
19, 1999) for Integrated Urban Air Toxics Strategy.

 Letter from NPCA to Jeffrey Holmstead, EPA, (June 11, 2004).

 Air Emissions from the Paint and Coatings Sector, EPA Sector Strategies
Division (December 2006).

 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).  Section 112(d)(3), in turn,
defines what constitutes the “maximum degree of reduction in
emissions” for new and existing sources.

 “CERCLA” refers to the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, 42 U.S.C. §§ 9601-9675, as
amended by the Superfund Amendments and Reauthorization Act of 1996,
Pub. L. No. 99-499, 100 Stat. 1613.

 “Documentation of De Minimis Emission Rates – Proposed 40 CFR Part
63, Subpart B, Background Document,” EPA Office of Air Quality,
Emission Standards Division, February 1994, at 3 (quoting Alabama Power
v. Costle, 636 F.2d 323 (D.C. Cir. 1979)).

 Id. at 3-4 (stating that, in the context of CAA § 112(g)(1), EPA
“seeks to demonstrate levels of emissions increases that would result
in a trivial risk to human health”).

 Quoted in, “State Implementation Plans,” 57 Fed. Reg. 13,498,
13,525 (1992) (emphasis added).  Seegenerally, Hays and Wetzler,
“Federal Recognition Of Variances: A Window Into The Turbulent
Relationship Between Science And Law Under The Clean Air Act,” 13
Journal of Environmental Law and Litigation 115 (1998) at n. 211.

 40 CFR Part 63 Subparts HHHHHH and XXXXXX, respectively.

 74 Federal Register 26145. June 1, 2009.

 Report on Carcinogens, Eleventh Edition; U.S. Department of Health and
Human Services, Public Health Service, National Toxicology Program

 “Toxic Chemical Release Inventory Reporting Forms and
Instructions.” Revised 2008 Version. EPA 260-K-08-001 – Table II
(October 2008).

 73 Fed. Reg. 42991 (July 23, 2008).

 73 Fed. Reg. at 58372-73.

 “Preferred and Alternative Methods for Estimating Air Emissions from
Paint and Ink Manufacturing Facilities,” Emission Inventory
Improvement Program, Volume II, Chapter 8, Section 4 (March 1998).

 Id at Section 6, page 1.

 “Compilation of Air Pollutant Emission Factors,” Volume I:
Stationary Point and Area Sources, Fifth Edition, page 4, Office of Air
Quality Planning and Standards, Research Triangle Park, North Carolina
(January 1995).

[1] “Aiming for Excellence: Actions to Encourage Stewardship and
Accelerate Environmental Progress,” EPA100-R-99-006 (July, 1999).

 64 Fed. Reg. 38706, 38720 (July 19, 1999).

 Paint and Coatings "2000" Review and Forecast (3rd Edition).  Kline &
Company, Inc. Little Falls, NJ (1999), page 5.

 Paint and Coatings "2000" Review and Forecast (3rd Edition).  Kline &
Company, Inc. Little Falls, NJ (1999), page 5.

 Id at page 8.

 Id.

 69 Federal Register 69298 (November 29, 2004).

 69 Federal Register 69320 (November 29, 2004).

 70 Federal Register 37698 (June 30, 2005).

 68 Federal Register 32606 (May 30, 2003).

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 The final rules for National Volatile Organic Compound Emission
Standards for Architectural and Industrial Maintenance (AIM) Coatings
and Automobile Refinish Coatings (40 CFR part 59, subpart D) were
published September 11, 1998 (FR 63 48848).

 California Air Resources Board (CARB) website for Auto Refinish
coatings - http://www.arb.ca.gov/coatings/autorefin/autorefin.htm

 Official Journal of European Communities, September 18, 2000.

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