[Federal Register: October 29, 2009 (Volume 74, Number 208)]
[Rules and Regulations]
[Page 56007-56056]
[DOCID:fr29oc09-26]

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Part IV

Environmental Protection Agency

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40 CFR Part 63

National Emission Standards for Hazardous Air Pollutants for Chemical
Manufacturing Area Sources; Final Rule

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 63

[EPA-HQ-OAR-2008-0334; FRL-8972-6]
RIN 2060-AM19

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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is issuing national emission standards for the control of
hazardous air pollutants for nine area source categories in the
chemical manufacturing sector: Agricultural Chemicals and Pesticides
Manufacturing, Cyclic Crude and Intermediate Production, Industrial
Inorganic Chemical Manufacturing, Industrial Organic Chemical
Manufacturing, Inorganic Pigments Manufacturing, Miscellaneous Organic
Chemical Manufacturing, Plastic Materials and Resins Manufacturing,
Pharmaceutical Production, and Synthetic Rubber Manufacturing. The
standards and associated requirements for the nine area source
categories are combined in one subpart. This final rule establishes
emission standards in the form of management practices for each
chemical manufacturing process unit as well as emission limits for
certain subcategories of process vents and storage tanks. The rule also
establishes management practices and other emission reduction
requirements for subcategories of wastewater systems and heat exchange
systems.

DATES: This final rule is effective on October 29, 2009.

ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-HQ-OAR-2008-0334. All documents in the docket are listed in the
http://www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., confidential business
information or other information whose disclosure is restricted by
statute. Certain other material, such as copyrighted material, is not
placed on the Internet and will be publicly available only in hard copy
form. Publicly available docket materials are available either
electronically through http://www.regulations.gov or in hard copy at
the EPA Docket Center, Public Reading Room, EPA West, Room 3334, 1301
Constitution Ave., NW., Washington, DC. The Public Reading Room is open
from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal
holidays. The telephone number for the Public Reading Room is (202)
566-1744, and the telephone number for the Air Docket is (202) 566-
1742.

FOR FURTHER INFORMATION CONTACT: Mr. Randy McDonald, Coatings and
Chemicals Group (E143-01), Sector Policies and Programs Division,
Office of Air Quality Planning and Standards, Environmental Protection
Agency, Research Triangle Park, North Carolina 27711, telephone number:
(919) 541-5402; fax number:<PHONE_NUMBER>; e-mail address:
<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION: Outline. The information in this preamble is
organized as follows:

I. General Information
    A. Does this action apply to me?
    B. Where can I get a copy of this document?
    C. Judicial Review
II. Background Information for this Final Rule
III. Summary of Major Changes Since Proposal
    A. Applicability
    B. Emission Standards
    C. Initial Compliance
    D. Monitoring, Recordkeeping, and Reporting
    E. Startup, Shutdown, and Malfunction (SSM)
    F. Title V
IV. Summary of Final Rule
    A. Applicability
    B. Compliance Dates
    C. Standards
    D. Initial Compliance Requirements
    E. Continuous Compliance Requirements
    F. Notifications, Recordkeeping, and Reporting Requirements
V. Summary of Comments and Responses
    A. Applicability
    B. Compliance Dates
    C. Standards
    D. Initial Compliance Demonstrations
    E. Monitoring Requirements
    F. Recordkeeping and Reporting
    G. Requirements During Periods of Startup, Shutdown, and
Malfunction (SSM)
    H. Title V Permitting
VI. Impacts of Final Area Source Standards
    A. What are the air impacts?
    B. What are the cost impacts?
    C. What are the economic impacts?
    D. What are the non-air health, environmental, and energy
impacts?
VII. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children From
Environmental Health Risks and Safety Risks
    H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
    I. National Technology Transfer and Advancement Act
    J. Executive Order 12898: Federal Actions to Address
Environmental Justice in Minority Populations and Low-Income
Populations
    K. Congressional Review Act

I. General Information

A. Does this action apply to me?

    The regulated categories and entities potentially affected by this
action are shown in the table below. This final rule applies to each
chemical manufacturing process unit (CMPU) that uses as feedstocks,\1\
generates as byproducts, or produces as products any of the following
15 hazardous air pollutants (HAP): 1,3-butadiene; 1,3-dichloropropene;
acetaldehyde; chloroform; ethylene dichloride; methylene chloride;
hexachlorobenzene; hydrazine; quinoline (i.e., ``chemical manufacturing
organic urban HAP'' or ``Table 1\2\ organic HAP''); or compounds of
arsenic, cadmium, chromium, lead, manganese, or nickel (i.e.,
``chemical manufacturing metal urban HAP'' or ``Table 1 metal HAP'').
Consistent with the proposed rule, the standards do not apply to
hydrogen halide and halogen HAP (i.e., hydrogen chloride, chlorine, and
hydrogen fluoride) at affected sources, except when these HAP are
generated in combustion-based emission control devices that are used to
meet the proposed standards for organic HAP on Table 1.\3\ The affected
source for this rule is the facility-wide collection of CMPUs that use,
generate, or produce one or more of the Table 1 HAP and the wastewater
systems and heat exchange systems associated with the CMPUs that use
Table 1 HAP. A CMPU includes all process equipment and activities
involved in the production of a material described by North American
Industry Classification System (NAICS) Code 325.\4\ If a CMPU uses,
generates, or

produces one of the chemical manufacturing organic urban HAP listed
above, then the standards apply to all listed Clean Air Act (CAA)
section 112(b) organic HAP emitted from that CMPU. Similarly, if a CMPU
uses, generates, or produces one of the chemical manufacturing metal
urban HAP listed above, then the standards apply to all listed CAA
section 112(b) metal HAP emitted from that CMPU.
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    \1\ Feedstocks are reactants, solvents, or any other additives
to the process.
    \2\ ``Table 1'' refers to Table 1 in the final rule.
    \3\ Collectively, the Table 1 organic and metal HAP are referred
to as the ``chemical manufacturing urban HAP'' or ``Table 1 HAP.''
    \4\ The CMPU is defined by a facility's production of materials
described by NAICS code 325. A facility producing such a material
(or family of materials) may use more than one train or series of
equipment to make it. All equipment (i.e., unit operation) used to
produce a specific product (as well as all the vents and activities
associated with making this product) are considered to be part of a
single CMPU for purposes of this rule. For example, facility X makes
a pharmaceutical product that requires the use of methylene chloride
as a solvent. The product is produced in any of three different size
reactors, depending on the quantity needed or equipment
availability. All of the reactors; other process equipment (e.g.,
for separation, drying, etc.); connecting piping and related pumps,
valves, etc.; storage tanks; transfer operations; surge control
vessels; bottoms receivers; and other activities (e.g., routine
cleaning) are part of a single CMPU.
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    The regulated categories and entities potentially affected by this
action include:

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

    Area sources in NAICS 325 not specifically identified in the chart
above may also be affected by this action. To determine whether your
chemical manufacturing area source is regulated by this action, you
should examine the applicability criteria in 40 CFR 63.11494 of subpart
VVVVVV (National Emission Standards for Hazardous Air Pollutants for
Chemical Manufacturing Area Sources). For additional information about
applicability provisions, see sections III.A, IV.A, and V.A of this
preamble. If you have any questions regarding the applicability of this
action to a particular entity, consult either the air permit authority
for the entity or your EPA regional representative as listed in 40 CFR
63.13 of subpart A (General Provisions).

B. Where can I get a copy of this document?

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

C. Judicial Review

    Under section 307(b)(1) of the CAA, judicial review of this final
rule is available only by filing a petition for review in the United
States Court of Appeals for the District of Columbia Circuit by
December 28, 2009. Under section 307(b)(2) of the CAA, the requirements
established by this final rule may not be challenged separately in any
civil or criminal proceedings brought by EPA to enforce these
requirements.
    Section 307(d)(7)(B) of the CAA further provides that ``[o]nly an
objection to a rule or procedure which was raised with reasonable
specificity during the period for public comment (including any public
hearing) may be raised during judicial review.'' This section also
provides a mechanism for EPA to convene a proceeding for
reconsideration, ``[i]f the person raising an objection can demonstrate
to EPA that it was impracticable to raise such objection within [the
period for public comment] or if the grounds for such objection arose
after the period for public comment (but within the time specified for
judicial review) and if such objection is of central relevance to the
outcome of this rule.'' Any person seeking to make such a demonstration
to us should submit a Petition for Reconsideration to the Office of the
Administrator, U.S. EPA, Room 3000, Ariel Rios Building, 1200
Pennsylvania Ave., NW., Washington, DC 20460, with a copy to both the
person listed in the preceding FOR FURTHER INFORMATION CONTACT section,
and the Associate General Counsel for the Air and Radiation Law Office,
Office of General Counsel (Mail Code 2344A), U.S. EPA, 1200
Pennsylvania Ave., NW., Washington, DC 20460.

II. Background Information for This Final Rule

    Section 112(d) of the CAA requires EPA to establish national
emission standards for hazardous air pollutants (NESHAP) for both major
and area sources of HAP that are listed for regulation under CAA
section 112(c). A major source is any stationary source that emits or
has the potential to emit 10 tons per year (tpy) or more of any single
HAP or 25 tpy or more of any combination of HAP. An area source is a
stationary source that is not a major source.
    Section 112(k)(3)(B) of the CAA calls for EPA to identify at least
30 HAP which, as the result of emissions from area sources, pose the
greatest threat to public health in the largest number of urban areas.
EPA implemented this provision in 1999 in the Integrated Urban Air
Toxics Strategy, (64 FR 38715, July 19, 1999) (Strategy). Specifically,
in the Strategy, EPA identified 30 HAP that pose the greatest potential
health threat in urban areas, and these HAP are referred to as the ``30
urban HAP.'' Section 112(c)(3) of the CAA requires EPA to list
sufficient categories or subcategories of area sources to ensure that
area sources representing 90 percent of the emissions of the 30 urban
HAP are subject to regulation. We selected the nine chemical
manufacturing area source categories based on these requirements. A
primary goal of the Strategy is to achieve a 75 percent reduction in
cancer incidence attributable to HAP emitted from stationary sources.
    Under CAA section 112(d)(5), EPA may elect to promulgate standards
or requirements for area sources ``which provide for the use of
generally available control technologies or management practices (GACT)
by such sources to reduce emissions of hazardous air pollutants.''
Additional information on GACT is found in the Senate report on the
legislation (Senate Report Number 101-228, December 20, 1989), which
describes GACT as:

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

Consistent with the legislative history, we can consider costs and
economic impacts in determining GACT, which is particularly important
when developing regulations for source categories that have many small
businesses.
    Determining what constitutes GACT involves considering the control
technologies and management practices that are generally available to
the area sources in the source category. We also consider the standards
applicable to major sources in the same industrial sector to determine
if the control technologies and management practices are transferable
and generally available to area sources. In appropriate circumstances,
we may also consider technologies and practices at area and major
sources in similar categories to determine whether such technologies
and practices could be considered generally available for the area
source category at issue. Finally, as we have already noted, in
determining GACT for a particular area source category, we consider the
costs and economic impacts of available control technologies and
management practices on that category.
    We are issuing these national emission standards in response to a
court-ordered deadline that requires EPA to issue standards for nine
source categories listed pursuant to CAA section 112(c)(3) and
(k)(3)(B) by October 16, 2009 (Sierra Club v. Johnson, no. 01-1537,
D.D.C., March 2006).

III. Summary of Major Changes Since Proposal

A. Applicability

    In the proposed rule, we proposed that the affected source include
the entire facility if the facility emitted any of the chemical
manufacturing urban HAP. Specifically, under the proposal, all process
vents, storage tanks, transfer operations, wastewater systems, and
cooling towers at the facility would be subject to the standards if any
emissions source at the facility emitted one of the chemical
manufacturing urban HAP. In response to comments, we narrowed the scope
of applicability of this final rule, and we made several changes to
clarify the applicability provisions. The most significant change is
that only CMPU that emit one or more of the 15 chemical manufacturing
urban HAP and the wastewater systems and heat exchange systems
associated with those CMPUs are subject to the rule. A CMPU includes
all process equipment and activities involved in the production of a
material (or family of materials) described by NAICS code 325.
Additionally, a CMPU includes each surge control vessel, bottoms
receiver, pump, compressor, agitator, pressure relief device, sampling
connection system, open-ended valve or line, valve, connector, storage
tank, transfer rack, and instrumentation system associated with the
production of a subject NAICS 325 material. The final rule provides
that a CMPU consists of one or more processing steps used in the
production of the subject NAICS 325 material.
    The final rule further specifies that each CMPU within an affected
source that emits one of the chemical manufacturing urban HAP is
subject only to requirements that apply to the same type of HAP that
triggered applicability, not requirements for all types of HAP. For
example, a CMPU that uses only chemical manufacturing organic urban HAP
is required to control all CAA section 112(b) organic HAP. Similarly, a
CMPU that uses only chemical manufacturing metal urban HAP is required
to control all CAA section 112(b) metal HAP. For the purposes of this
provision, hydrazine is considered to be an organic HAP.
    In response to comments, we are clarifying that the rule does not
extend to structural items (e.g., piping) and items that exist as
``articles'' as defined in 40 CFR 372.3, and are used under normal
conditions, because these items do not emit any HAP, including the
chemical manufacturing urban HAP.\5\
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    \5\ ``Article'' means a manufactured item: ``(1) Which is formed
to a specific shape or design during manufacture; (2) which has end
use functions dependent in whole or in part upon its shape or design
during end use; and (3) which does not release a toxic chemical
under normal conditions of processing or use of that item at the
facility or establishment.'' 40 CFR 372.3.
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B. Emission Standards

1. Management Practices
    EPA proposed management practices for a number of emission points,
including for process vents (batch, continuous, and metal HAP); storage
tanks; transfer operations; and equipment leaks. The proposed
management practices for process vents included covering all process
tanks and mixing vessels during operation; maintaining covers in the
closed position on all openings and access points in other process
vessels; conducting quarterly inspections to check for leaks from the
process vessels and determining the integrity of the process vessels
and ensuring covers are being used; and repairing leaks within 15 days.
EPA proposed these management practice requirements for all affected
sources. For storage tanks, EPA proposed GACT as management practices
consisting of quarterly inspections for leaks, minimizing and promptly
cleaning up spills, and ensuring all openings and access points are
closed for all storage tanks. For transfer operations, EPA proposed to
minimize emissions using management practices, such as minimizing
spills, cleaning up spills promptly, covering open containers when not
in use, and minimizing discharges to open waste collection systems.
    In the final rule, the separate proposed management practices for
process vents, storage tanks, transfer operations, and equipment leaks
were consolidated and simplified into one comprehensive set of
management practices that are applicable to each CMPU. The
comprehensive management practices in the final rule include
requirements to equip each process vessel with a cover or lid that must
be in place at all times when the vessel contains HAP, except for
material addition and sampling. The management practices also include
sensory-based inspections of process vessels and equipment in each
CMPU. Changes to management practices specific to small heat exchange
systems are described in section III.B.2.f of this preamble.
2. Emission Limits and Emission Control Requirements
a. Continuous Process Vents and Batch Process Vents
    For continuous process vents with a total resource effectiveness
(TRE) index of 1 or less, EPA proposed management practices and 95
percent emission reduction of organic HAP emissions. After
consideration of the public comments, we are finalizing management
practices and the 95 percent emission reduction requirement for organic
HAP emissions from continuous process vents. Based on public comments,
the final rule includes a definition of continuous process vent that is
based on the process vent definition in 40 CFR part 63, subpart F of
the Hazardous Organics NESHAP (HON). In addition, the final rule
includes a mass emission threshold of 0.1 pound per hour (lb/hr) or
less, below which the TRE index calculation is not required.
    For facilities with batch process vents, EPA proposed management
practices and a 90 percent organic HAP emission

reduction if the collective uncontrolled total organic HAP emissions
from the sum of all batch process vents within the affected facility
was 19,000 pounds per year (lbs/yr) or greater. The final rule requires
management practices and 85 percent control (90 percent for new
sources) if the total organic uncontrolled HAP emissions from batch
process vents within a CMPU are 10,000 lbs/yr or greater. We
established the control efficiency of 85 percent as GACT for existing
area sources based on additional information provided by commenters.
Under the final rule, emissions from any batch process vents may be
estimated based on process knowledge, engineering assessment, and/or
test data. The proposed requirement to use the calculation methodology
in 40 CFR 63.1257(d)(2)(i) for certain types of emission episodes is
not required, but it is authorized under the final rule. The final rule
also includes an expanded definition of batch process vent that
includes examples of batch process vents and lists types of equipment
and gas streams that are not batch process vents.
b. Metal HAP Process Vents
    EPA proposed management practices and 95 percent metal HAP emission
reduction if the collective uncontrolled total metal HAP emissions from
the sum of all metal HAP process vents was greater than 400 lbs/yr on a
facility-wide basis. In addition to the 400 lbs/yr level, EPA co-
proposed a metal HAP threshold level of 100 lbs/yr on a facility-wide
basis, and asked for public comment on the appropriate threshold to use
for purposes of subcategorizing metal HAP process vents based on the
factors discussed in the proposed rule. For metal HAP process vents
with total uncontrolled metal HAP emissions less than the threshold,
management practices would be required to reduce HAP emissions. After
considering public comments, the final rule requires management
practices and 95 percent reduction in metal HAP emissions from each
CMPU with uncontrolled metal HAP process vent emissions of 400 lbs/yr
or greater.
c. Storage Tanks
    The proposed rule cross-referenced the thresholds for control, as
well as the standards and compliance procedures in 40 CFR part 60,
subpart Kb. The final rule replaces the references to subpart Kb with
references to the standards and compliance procedures in 40 CFR part
63, subparts SS and WW and by directly specifying the applicable
thresholds for control in Table 5 to the final rule. The capacity and
maximum true vapor pressure thresholds for control in the final rule
are the same as at proposal, but the final rule specifies that the
maximum true vapor pressure (MTVP) threshold is to be based on the
organic HAP content of the stored liquid, not the volatile organic
liquid (VOL) content as specified in subpart Kb. As in other NESHAP, we
intended to require MTVP determinations based on the organic HAP
content in the stored liquid, but we inadvertently neglected to
override the reference to VOL in the MTVP definition in subpart Kb. The
standards and compliance procedures are essentially the same as at
proposal, but the final rule references standards and compliance
procedures in 40 CFR part 63 (Subparts SS and WW, and the General
Provisions, Subpart A). The final rule also includes a vapor balancing
compliance alternative that provides at least equivalent levels of HAP
emission reductions as the GACT requirements that we are finalizing.
Based on public comments, we have determined that GACT for storage
tanks that vent to a control device includes alternative procedures
during periods of planned routine maintenance of the control device.
Therefore, the final rule specifies that no material may be added to
the storage tank during periods of planned routine maintenance, and
periods of planned routine maintenance may not exceed 240 hours per
year (hrs/yr).
    Surge control vessels and bottoms receivers were included in the
proposed definition of storage tank because we proposed that these
types of vessels would be subject to the same standards as storage
tanks. Surge control vessels and bottoms receivers remain subject to
the storage tank standards in the final rule. However, based on public
comments, we removed surge control vessels and bottoms receivers from
the definition of storage tank, and instead explicitly specify in
section 63.11496(h) of the final rule that the storage tank standards
apply to surge control vessels and bottoms receivers that meet the
applicability criteria for storage tanks set forth in Table 5 of the
final rule. All storage tanks that store liquid containing organic HAP
and are part of a CMPU subject to the final rule are subject to the
management practice requirements. In addition, the definition of
storage tank in the final rule is changed to make the definition
consistent with definitions in other NESHAP such as the Miscellaneous
Organic NESHAP (MON), HON, and Pharmaceutical maximum achievable
control technology (MACT) standards by excluding wastewater storage
tanks and tanks storing liquid containing organic HAP only as
impurities.
d. Wastewater
    EPA proposed to subcategorize wastewater streams based on the size
of the wastewater stream and determined that large wastewater streams
were those with partially soluble HAP (PSHAP) concentrations of 10,000
parts per million by weight (ppmw) or greater. For wastewater streams
with PSHAP concentrations of less than 10,000 ppmw discharge, we
proposed as GACT to send the wastewater stream to an onsite or offsite
wastewater treatment process, and, for wastewater streams containing
PSHAP concentrations of 10,000 ppmw or greater, we proposed as GACT use
of gravity separation or other techniques to separate organic and water
layers and to send the water layer to a wastewater treatment process.
We proposed that the organic layer must be recovered and reused in a
process, used as a fuel, or disposed of as hazardous waste.
    Based on comments, we are revising our subcategorization
determination to account for wastewater streams with PSHAP
concentrations of 10,000 ppmw or greater that do not have a separate
organic layer. The separation techniques that we established as GACT
for larger wastewater streams will not work for wastewater streams that
contain only a water phase. For this reason, we are also now
considering the type of stream in our subcategorization determination
to account for the wastewater streams that do not separate at PSHAP
concentrations of 10,000 ppmw. In the final rule, the larger wastewater
stream subcategory is defined as those wastewater streams with PSHAP
concentrations of 10,000 ppmw or greater that also have a separate
organic layer.
    As stated above, the proposed GACT requirement for a wastewater
stream that contains PSHAP concentrations of 10,000 ppmw or greater was
to separate the stream into the organic and aqueous phase and treat
them according to the requirements in the proposed standards. The final
rule retains these provisions for the newly defined large wastewater
systems subcategory and also provides an alternative compliance option
to hard-pipe the total stream to a combustion unit or other onsite
hazardous waste treatment facility (or to a tank from which it is
collected and shipped offsite). This alternative provides at least
equivalent levels of HAP emission reductions as the emission control
requirements contained in this proposed rule. We are also finalizing
the proposed requirement

for single phase wastewater streams and the aqueous phase for two phase
streams that requires the wastewater streams be sent to a wastewater
treatment process.
    Based on public comments, we also revised the definition of
wastewater stream to be consistent with MON and HON wastewater stream
definitions.
e. Transfer Operations
    EPA proposed that management practices to minimize evaporation
losses and use of submerged loading were GACT for transfer operations.
After considering public comments on the transfer operations
requirements, we have replaced in some cases and revised in others the
management practices for transfer operations and are promulgating a
comprehensive management practice requirement (see discussion in
section III.B.1 of this preamble), which includes inspection of
transfer operations. In addition to the management practices, we have
determined that GACT for most material transfers is the use of
submerged loading or bottom loading. In response to public comments, we
have added an alternative compliance option to route emissions to a
fuel gas system or process in accordance with 40 CFR part 63, subpart
SS. This alternative provides at least equivalent levels of HAP
emission reductions as the GACT requirements that we are finalizing.
    Based on public comments, we have also determined that submerged or
bottom loading is neither general industry practice nor GACT for the
transfer of reactive and resinous materials because sources do not
currently employ submerged or bottom loading for these materials due to
operational issues. Therefore, the final rule defines reactive and
resinous materials and requires sources to include in the initial
Notifications of Compliance Status a list of any materials that meet
these definitions. Source must also keep records of the use of these
materials and report in the semiannual compliance report the use of any
additional resinous or reactive materials occurring during the
reporting period. Reactive materials are defined in the final rule as
energetics, organic peroxides, and other unstable chemicals such as
chemicals that react violently with water and chemicals that vigorously
polymerize, decompose, condense, or become self-reactive under
conditions of pressure or temperature. Resinous materials are defined
in the final rule as viscous, high-boiling point material resembling
pitch or tar that sticks to or hardens in the fill pipe under normal
transfer conditions.
f. Heat Exchange Systems
    The proposed rule used the term ``cooling tower'' systems; however,
we intended to regulate ``heat exchange'' systems as is consistent with
the HON. We also intended to include ``once-through'' systems as part
of the affected source. Therefore, the final rule uses the term ``heat
exchange system'' in place of the proposed term ``cooling tower
system.'' The final rule also includes a definition of ``heat exchange
system'' that is consistent with the definition in 40 CFR 63.101 of the
HON and clearly specifies that once-through systems are included.
    After considering public comments, we have retained the proposed
inspection and leak repair requirements for small heat exchange systems
and monitoring and leak repair requirements for large heat exchange
systems as the GACT requirements in the final rule. The proposed rule
also required compliance with 40 CFR 63.104(a), and several commenters
did not understand what that requirement meant. To address the
confusion caused by the proposed rule, we clarified in the final rule
that heat exchange systems meeting the conditions set forth in 40 CFR
63.104(a) are not subject to the inspection or monitoring requirements
contained in the final rule, as that is what we intended when we
proposed the rule.
    As a compliance alternative to the requirement to perform repairs
after an inspection of a small heat exchange system reveals indications
of a potential leak into cooling water, the final rule also allows the
owner or operator to demonstrate that the HAP concentration in the
cooling water does not constitute a leak, as defined in 40 CFR
63.104(b)(6). For both large and small heat exchange systems, the final
rule also allows compliance with the HON heat exchange system
requirements in 40 CFR 63.104(b) or (c). For equipment that meets
Current Good Manufacturing Practice (CGMP) requirements in 21 CFR part
211, the physical integrity of the reactor may be used as the surrogate
indicator of heat exchange system leaks under 40 CFR 63.104(c). These
compliance alternatives provide at least equivalent levels of HAP
emission reductions as the emission control requirements contained in
this final rule.
g. Equipment Leaks
    As discussed in section III.B.1 of this preamble, the proposed
equipment leak requirements have been incorporated as part of the
management practice requirements that apply to each CMPU subject to the
final rule. However, following review of public comments, we added an
alternative for equipment leaks in the final rule that allows an owner
or operator to use Method 21 in lieu of sensory-based leak detection.
Method 21 is at least equivalent to the leak inspection requirements we
are finalizing in this rule.
h. Overlapping Rules
    The final rule specifies that when equipment at an affected source
is subject to both this rule and the provisions of another rule,
compliance with the requirements of the other rule constitutes
compliance with this final rule for the subject equipment if the owner
or operator determines that the other emission control, monitoring,
recordkeeping, and/or reporting requirements provide at least
equivalent levels of HAP emission reductions and compliance assurance
as the requirements in the final rule. For example, if the control
requirements in the other rule are at least as stringent as those
provided in this rule, but the monitoring, recordkeeping, or reporting
requirement in the other rule are not as stringent or comprehensive,
the source may comply with the control requirements from the other
rule, but must comply with the more stringent monitoring,
recordkeeping, and reporting requirements in this rule. The final rule
requires a source that is subject to overlapping standards to identify
in its Notification of Compliance Status all of the alternative
requirements with which the source will be complying and provide an
explanation of why the selected requirement is more stringent than this
rule. The final rule also states that sources are responsible for
making accurate determinations concerning the more stringent standard
and noncompliance with this rule is not excused if it is later
determined that the source was in error in its initial notification of
compliance and, as a result, is violating this rule. Compliance with
this rule is the responsibility of the affected source regardless of
any notification of compliance.

C. Initial Compliance

    For some control devices, the proposed rule allowed initial
compliance to be demonstrated using either design evaluations or
performance tests, but performance tests were required for certain
other control devices. In response to comments, the final rule allows
design evaluations as an alternative to performance tests for all
control devices.

    To clarify the initial compliance requirements for batch process
vents and continuous process vents, some of the language from 40 CFR
part 63, subpart FFFF that was referenced in Table 2 to the proposed
rule has been written directly into 40 CFR 63.11496(g) of the final
rule.

D. Monitoring, Recordkeeping, and Reporting

    The proposed rule referenced parts of the General Provisions as
well as subparts SS, FFFF, and NNNNNN in 40 CFR part 63 for all control
device monitoring requirements. With two exceptions, these monitoring
requirements are retained in the final rule. One change in the final
rule is that pH may be measured once per day rather than continuously
for any halogen scrubber. The second change from proposal is that Table
9 to the final rule specifies that 40 CFR 63.8(a)(2) does not apply to
affected sources under this rule. We made this change so that EPA
Performance Specification 17 (PS-17) and EPA Quality Assurance
Procedure 4, when finalized, will not apply to affected sources under
this rule.
    In addition to monitoring requirements, the proposed rule
referenced recordkeeping requirements in several other rules. To
clarify these requirements, 40 CFR 63.11501(c) of the final rule lists
all of the recordkeeping requirements and references the specific
section in each rule that requires it. The notification and reporting
requirements have also been revised in the final rule. For example,
additional notification requirements have been incorporated into the
final rule for certain transfer operations and overlapping rules as
discussed above.

E. Startup, Shutdown, and Malfunction (SSM)

    During the comment period of the proposed rule, the United States
Court of Appeals for the District of Columbia Circuit vacated two
provisions in EPA's CAA Section 112 regulations governing the emissions
of HAP during periods of startup, shutdown, and malfunction (SSM).
Sierra Club v. EPA, 551 F.3d 1019 (D.C. Cir. 2008). Specifically, the
Court vacated 40 CFR 63.6(f)(1) and 40 CFR 63.6(h)(1), that are part of
a regulation, commonly referred to as the ``General Provisions Rule,''
that EPA promulgated under section 112 of the CAA. When incorporated
into CAA Section 112(d) regulations for specific source categories,
these two provisions exempt sources from the requirement to comply with
the otherwise applicable CAA section 112(d) emission standard during
periods of SSM.
    Industry intervenors appealed the December 2008 Sierra Club
decision by filing petitions for rehearing. On July 30, 2009, the
District of Columbia Circuit denied these petitions. On August 5, 2009,
EPA filed a motion seeking a 60-day stay of the mandate. On August 6,
2009, industry intervenors filed a motion to stay the mandate pending
their appeal of the decision to the United States Supreme Court. The
Court recently denied industry intervenors' motion to stay the mandate
and granted EPA's motion, directing the Clerk of the Court not to issue
the mandate prior to October 6, 2009. Until the District of Columbia
Circuit issues the mandate effectuating the vacatur, 40 CFR 63.6(f)(1)
and (h)(1) remain in effect.
    The proposed rule included a reference to 40 CFR 63.6(f)(1) and
(h)(1). In light of Sierra Club v. EPA, we revised Table 9, which
addresses the applicability of the Part 63 General Provisions to the
source categories at issue in this rule, to state that 40 CFR
63.6(f)(1) and (h)(1) do not apply. As such, the final emission
standards summarized in section IV of this preamble apply at all times.
As noted in section IV of this preamble, we are setting a separate
emission standard for the nine source categories at issue here that
applies to continuous process vents during periods of startup and
shutdown, and that standard is 85 percent control, instead of the 95
percent control required at all other times. We are establishing a
separate emission standard for these periods because they are
characterized by activities such as the filling, emptying, and inerting
of vessels, which generally result in significantly different emissions
than normal operations. As for batch processes, startup and shutdown
are part of their normal operations and, therefore, are already
addressed by the standards. In addition, storage tanks, heat exchange
systems, and transfer operations do not include startup and shutdown
activities.
    We have also added language making clear that, to the extent this
rule incorporates by reference emission standards from other CAA
section 112(d) rules, and those rules contain an exemption from the
applicable emission standard during periods of SSM, that exemption does
not apply for purposes of this rule.

F. Title V

    Pursuant to section 502(a) of the CAA, the Administrator may ``in
the Administrator's discretion and consistent with the applicable
provisions of [the Act], promulgate regulations to exempt one or more
[non-major] source categories (in whole or in part) from the
requirements of [title V] if the Administrator finds that compliance
with such requirements is impracticable, infeasible, or unnecessarily
burdensome on such categories. * * *'' We proposed to exempt the
sources in the chemical manufacturing area source categories subject to
this rule from compliance with the requirements of title V. Since
proposal, we have reconsidered the proposed exemption and determined
that it is not appropriate to finalize the exemption for certain
synthetic area sources. Specifically, in proposing the exemption for
these categories, we did not consider the large number of synthetic
area sources that reduced their HAP emissions to below the major source
thresholds by installing air pollution control devices. The oversight
occurred because most sources subject to the other area source rules
that exempted facilities from title V permitting have very low
emissions before control (and most emit metal HAP). Conversely, for the
chemical manufacturing area source category, we estimate 75 facilities
are synthetic area sources for HAP and at least 10 percent of these
facilities have uncontrolled HAP emissions over 100 tpy. Therefore, in
the final rule, title V permits are required for area sources in the
nine chemical manufacturing source categories that are synthetic area
sources by virtue of the fact that they have reduced their HAP
emissions to below the major source thresholds by installing air
pollution control devices. We are, however, finalizing the exemption
from the requirements of title V for those synthetic area sources that
limited their HAP emissions to below the major source thresholds solely
by complying with operational limits (e.g., limiting the hours the
facility can operate) and for natural area sources, which are sources
that neither installed controls nor took operational limits to become
an area source. The analysis in the proposed rule finding that
compliance with title V is unnecessarily burdensome on these source
categories remains accurate for the sources we are exempting.
    Based on our additional review of the source categories since
proposal, we conclude that exemption for the synthetic area sources
that installed controls is not appropriate given the facts associated
with these sources as set forth below, and we do not believe title V is
unnecessarily burdensome on these area sources. Unlike many other area

source categories that we have exempted from title V while implementing
the requirements of CAA sections 112(c)(3) and 112(k)(3)(B), the nine
chemical manufacturing area source categories include a large number of
synthetic area sources that installed air pollution controls to become
area sources. We evaluated other area source categories and determined
that most sources subject to the other area source rules that exempted
facilities from title V permitting have very low emissions before
control. For the chemical manufacturing area source categories, we
estimate that at least seven of the 47 facilities that are synthetic
area sources for HAP by virtue of installing controls would have
uncontrolled HAP emissions over 100 tons per year. Synthetic area
sources that installed controls represent more than 10 percent of the
total number of sources that will be subject to the final rule. In
fact, these sources are much more like the major sources of HAP subject
to the HON and the MON. In addition, many of these sources are located
in cities, and often in close proximity to residential and commercial
centers where large numbers of people live and work. The record also
indicates that many of these synthetic area sources have significantly
higher emissions potential when uncontrolled than the other sources in
the nine chemical manufacturing area source categories. For example, we
have identified seven facilities that have uncontrolled emissions that
exceed 100 tpy.
    For these reasons, we believe that the additional public
participation and compliance benefits of additional informational,
monitoring, reporting, certification, and enforcement requirements that
exist in title V should be the same for a major source that installed a
control device after 1990 to become an area source as for a source that
is major and installed a control device to comply with an applicable
major source NESHAP, and thereby reduced emissions below major source
levels (10 tpy of a single HAP or 25 tpy of total HAP). Many of the
synthetic area sources that became area sources by virtue of installing
add-on controls are large facilities with comprehensive compliance
programs in place because their uncontrolled emissions would far exceed
the major source threshold. We maintain that requiring additional
public involvement and compliance assurance requirements through title
V is important to ensure that these sources are maintaining their
emissions at the area source level and, while there is some burden on
the affected facilities, we think that the burden is not significant
because these facilities are generally larger and more sophisticated
than the natural area sources and sources that took operational limits
to become area sources.
    For these reasons above, we have decided not to finalize the title
V exemption for these facilities. The final rule requires title V
permits for major sources of HAP emissions that installed controls
after 1990 to become area sources of HAP emissions. We estimate that
approximately 150 sources that will be subject to this rule are
required to have title V permits because of criteria pollutants and the
final rule will require an additional 47 affected area sources to
obtain title V permits.
    We are not requiring title V permits for sources that reduced their
emissions to area source levels by taking operational restrictions,
such as restricting hours of operation or production, or for natural
area sources. We conclude that our analysis in the proposed rule that
title V is unnecessarily burdensome for sources in the Chemical
Manufacturing source categories remains accurate for the sources we are
exempting.

IV. Summary of Final Rule

A. Applicability

    The final NESHAP applies to each CMPU that is located at an area
source of HAP emissions that uses as feedstocks, generates as
byproducts, or produces as products any of the Table 1 HAP, where the
Table 1 HAP are present in the feedstocks or are generated and present
in the process fluid at concentrations greater than 0.1 percent for
carcinogens, as defined by the Occupational Safety and Health
Administration, and greater than 1.0 percent for noncarcinogens. A CMPU
includes all process equipment, vents, and activities involved in the
production of a material described by NAICS code 325, and it consists
of one or more unit operations and all associated recovery devices. A
CMPU also includes each surge control vessel, bottoms receiver, pump,
compressor, agitator, pressure relief device or valve, sampling
connection system, open-ended valve or line, valve, connector, storage
tank, transfer rack, and instrumentation system associated with the
production of NAICS code 325 materials. An affected source is the
facility-wide collection of all CMPUs that use, generate, or produce
one or more Table 1 HAP. An affected source also includes each heat
exchange system and wastewater system that is associated with any CMPU
that uses, generates, or produces one or more Table 1 HAP.
    The nine chemical manufacturing area source categories include
production of most of the materials classified under NAICS 325. The
final rule specifies applicability based on CMPUs that are used to
produce chemicals classified under NAICS 325, except for production of
materials in NAICS 325 that are subject to other area source standards,
as specified in the rule, see 40 CFR 63.11494(c)(1), and specific
operations that are not considered to be chemical manufacturing, such
as photographic paper (NAICS 325992), as described in 40 CFR
63.11494(c)(2) of the final rule.
    To be subject to the rule, the CMPU must use as feedstocks,
generate as byproducts, or produce as products any of the 15 chemical
manufacturing urban HAP. If the CMPU is subject to the final rule, the
standards apply to all CAA section 112(b) organic HAP emitted from the
CMPU and all CAA section 112(b) metal HAP emitted from the CMPU,
depending on the type of HAP that triggers applicability under the
rule. Specifically, a CMPU using only Table 1 organic HAP is required
to control all CAA section 112(b) organic HAP from the CMPU, a CMPU
using only Table 1 metal HAP is required to control all CAA section
112(b) metal HAP from the CMPU, and a CMPU using both metal and organic
Table 1 HAP is required to control all CAA section 112(b) metal and
organic HAP

B. Compliance Dates

    All existing area source facilities with operations subject to this
final rule must comply with the final rule requirements for their
existing operations no later than October 29, 2012. A new area source
must comply with the final rule requirements by October 29, 2009 or
upon startup, whichever is later. For the purposes of determining
compliance with the rule, a new source is a source that commenced
construction or reconstruction after October 6, 2008.

C. Standards

    For each CMPU that is part of an affected source, the final rule
requires you to implement management practices that apply to all
process equipment and other equipment (e.g., pumps, valves, and
connectors) in the CMPU. In addition to the management practices, the
final rule requires compliance with numerical emission limits and
additional emission control requirements for certain process vents,
storage tanks, surge control vessels, bottoms receivers, wastewater
systems,

and heat exchange systems that meet specified conditions. Management
practice requirements and all numerical emission limits and other
emission control requirements, except the emission limit for batch
process vents, are the same at existing and new sources.
1. Management Practices
    Owners and operators of CMPUs subject to this rule are required to
comply with the following management practice requirements. All process
vessels must be equipped with a cover or lid that is in place at all
times when the vessel contains HAP, except for material addition and
sampling. Transfer of liquids containing chemical manufacturing organic
urban HAP to tank trucks or railcars must be conducted using submerged
loading or bottom loading, except for reactive or resinous materials.
You must identify each reactive or resinous material in your
Notification of Compliance Status or the semiannual compliance report
that covers the period when the material is first transferred. You must
also conduct inspections of equipment within the CMPU quarterly to
demonstrate compliance with the above management practices and confirm
that all CMPU are sound and free of leaks. Any leaks must be repaired
within 15 days of finding the leak or you must document the reason for
the delay. In addition, you must keep records of the inspection dates,
inspection results, and the dates of equipment repairs.
    Owners or operators of small heat exchange systems that are part of
a CMPU subject to this subpart with a cooling water flow rate of less
than 8,000 gallons per minute (gal/min) and that do not meet the
criteria in 40 CFR 63.104(a) are required to develop a heat exchange
system inspection plan that describes the inspections that will be
performed to identify hydrocarbons in the cooling water. The
inspections must be conducted quarterly and may include a number of
sensory inspection options for determining indications of a leak, such
as visible floating hydrocarbon, hydrocarbon odor, discolored water, or
chemical addition rates. You must either perform repairs to eliminate
indications of a leak or take samples and determine there is no leak
(as defined in 40 CFR 63.104(b)(6)). Repairs must be completed within
45 days after the inspection during which you observe indications of a
leak, or you must document the reason for the delay. In addition, you
must keep records of the heat exchange system inspection dates,
inspection results, and the dates of leak repairs.
    As an alternative to the management practice requirements for small
heat exchange systems, the final rule allows compliance with the
requirements for large heat exchange systems with flow rates of 8,000
gal/min or greater (i.e., the HON heat exchange system requirements in
40 CFR 63.104(b) or (c)).
2. Standards for Batch Process Vents
    Owners and operators of a CMPU with collective uncontrolled organic
HAP emissions greater than or equal to 10,000 lbs/yr from all batch
process vents associated with an affected CMPU must meet emission
limits for the organic HAP emissions. Examples of batch process vents
include, but are not limited to, vents on reactors, filters,
centrifuges, condensers used for product recovery, and process tanks.
These vents include intermittent emissions from continuous operations
as well as emissions from batch operations.
    For an existing source, one control option is to reduce the
collective uncontrolled organic HAP emissions from the CMPU by at least
85 percent by venting emissions from a sufficient number of vents
through one or more closed vent system to any combination of control
devices (excluding a flare). Alternatively, you may route uncontrolled
organic HAP emissions from one or more batch process vents within the
CMPU through one or more closed vent systems and meet an outlet
concentration limit of 20 parts per million by volume (ppmv) (as total
organic carbon or total organic HAP) or through a closed vent system to
a flare, and comply with the 85 percent reduction for the remaining
vents in the CMPU. For a new source, the requirements are the same as
for an existing source, except the required reduction is 90 percent
instead of 85 percent.
    When halogenated organic HAP compounds from batch process vents are
controlled by combustion, you must also reduce the hydrogen halide and
halogen HAP generated in the combustion device by at least 95 percent,
to no more than 0.45 kilograms per hour (kg/hr), or to no more than 20
ppmv. As an alternative to post-combustion halogen control, you may
instead reduce the halogen atom mass emissions prior to the combustion
device to no more than 0.45 kg/hr or 20 ppmv.
3. Standards for Continuous Process Vents
    We are finalizing the proposed GACT requirements for organic HAP
emissions from each continuous process vent with a TRE index value less
than or equal to 1.0. Specifically, organic HAP emissions from each
continuous process vent with a TRE index value less than or equal to
1.0 must meet any one of several emission control alternatives. One
option is to reduce the organic HAP emissions by at least 95 percent by
routing through a closed vent system to one or more control devices.
Alternatively, you may route the emissions to a flare, or you may meet
the concentration option described above for batch process vents.
Because a continuous process vent is determined after the last recovery
device, another option is to use a recovery device from which the vent
stream is determined to have a TRE greater than 1.0. In addition, we
are establishing a requirement to reduce the organic HAP emissions from
continuous process vents with a TRE less than 1.0 by at least 85
percent during periods of startup and shutdown. Halogenated organic
emissions from continuous process vents are subject to the same
requirements described above for halogenated organic HAP emissions from
batch process vents.
4. Standards for Metal HAP Process Vents
    Owners and operators are required to reduce metal HAP emissions by
at least 95 percent from each CMPU with uncontrolled metal HAP
emissions of 400 lbs/yr or more. The metal HAP process vent emissions
must be routed through a closed-vent system to a control device.
5. Standards for Storage Tanks, Surge Control Vessels, and Bottoms
Receivers
    We are finalizing the proposed emission controls for emissions from
storage tanks, surge control vessels, and bottoms receivers that have
(1) a capacity of 40,000 gallons or greater with vapor pressure of
total organic HAP of 5.2 kilopascals (kPa) or greater and less than
76.6 kPa or (2) a capacity of 20,000 gallons or greater and less than
40,000 gallons with vapor pressure of total organic HAP of 27.6 kPa or
greater and less than 76.6 kPa. Control options in the final rule
include: (1) Use of an internal or external floating roof; (2) venting
through a closed vent system to a control device that reduces organic
HAP emissions by at least 95 percent; (3) vapor balancing to the tank
truck or railcar from which the tank is filled; (4) routing to a flare;
or (5) routing to a fuel gas system or process. Storage tanks, surge
control vessels, and bottoms receivers with capacity of 20,000 gallons
or greater with vapor pressure of total organic HAP of 76.6 kPa or
greater must be controlled using any of the above

options except a floating roof. Storage tanks, surge control vessels,
or bottoms receivers with a vent stream that contains halogenated
compounds and that is controlled by combustion must also meet the same
requirements described above for halogenated batch process vents.
6. Standards for Wastewater Systems
    All wastewater discarded from a CMPU subject to the rule must be
treated. In addition, each process wastewater stream and each
maintenance wastewater stream in which the total PSHAP concentration is
10,000 ppmw or greater, and which contains both an organic and an
aqueous phase, must be decanted or separated by other techniques.
Alternatively, wastewater streams that meet these conditions may be
hard piped to onsite treatment as hazardous waste or hard piped to a
collection tank or other vessel and shipped offsite for any of the same
types of treatment. If the wastewater is separated into organic and
aqueous layers, the organic material must be recycled to a process,
used as fuel, or disposed of as hazardous waste. The separated aqueous
phase, like other process wastewater and maintenance wastewater that
does not separate into an organic and an aqueous phase, must receive
some type of treatment, either onsite or offsite, as described above.
7. Standards for Heat Exchange Systems
    Owners or operators of heat exchange systems with cooling water
flow rate of 8,000 gal/min or greater must develop and operate in
accordance with a monitoring plan that documents the procedures to be
used to detect leaks of process fluids into cooling water. The plan
must require monitoring of one or more surrogate indicators or
monitoring of one or more process parameters or other conditions that
indicate a leak. You must conduct the monitoring at least quarterly.
Leaks must be repaired within 45 calendar days after detection unless
specified conditions for delay of repair are met. You must keep records
of leaks detected by methods described in your monitoring plan or by
other methods, and you must keep records of the dates of repairs. A
compliance alternative has been incorporated into the final rule that
allows compliance with the HON heat exchange system requirements in 40
CFR 63.104(b). This alternative provides at least equivalent levels of
HAP emission reductions as the standards that we are finalizing today.

D. Initial Compliance Requirements

    To demonstrate initial compliance with the management practices in
the final rule, owners and operators of affected new and existing
sources must certify that they have implemented all required management
practices by the compliance date. To demonstrate initial compliance
with the emissions control requirements, by the compliance date, the
source must install and have operational, any required add on control
equipment and/or have implemented any design requirements necessary to
comply with the applicable standard.
    For batch process vents and metal HAP process vents, owners and
operators must either calculate uncontrolled emissions or demonstrate
that organic HAP usage is below 10,000 lb/yr or metal HAP usage is
below 400 lb/yr. The final rule specifies that HAP emissions or usage
may be determined based on process knowledge, engineering assessments,
or test data. For continuous process vents with an organic HAP emission
rate greater than 0.1 lb/hr, owners and operators must determine the
TRE index value. For wastewater streams, owners and operators must
determine if the PSHAP concentration exceeds 10,000 ppmw and contains
separate aqueous and organic layers. All wastewater stream
characterization determinations may be based on process knowledge,
engineering assessments, or test data.
    To demonstrate initial compliance with a percent reduction or
outlet concentration emission limit in this final rule, owners and
operators must conduct either a performance test or design evaluation.
Limits for operating parameters that will be monitored to demonstrate
ongoing compliance must be established during the performance test or
design evaluation.

E. Continuous Compliance Requirements

    Quarterly inspections are required to demonstrate compliance with
the management practice requirements and the standards for large heat
exchange systems. Storage tanks equipped with floating roofs are also
subject to periodic inspections and, for external floating roofs, seal
gap measurements. Control device operating parameters must be
continuously monitored to demonstrate ongoing compliance with percent
reduction or outlet concentration emission limits, and the continuous
presence of a pilot flame must be verified in flares. Closed vent
systems that convey emissions to a control device must be monitored
using Method 21 or by audible, visual, or olfactory (AVO) techniques,
depending on the construction material and the source of the emissions.

F. Notification, Recordkeeping, and Reporting Requirements

    The owner or operator of a new or existing affected source is
required to comply with certain requirements of the General Provisions
to part 63 (40 CFR part 63, subpart A), which are identified in Table 9
of the final rule. Each facility is required to submit an Initial
Notification and a Notification of Compliance Status according to the
requirements in 40 CFR 63.9 of the General Provisions and 40 CFR
63.11501 of the final rule. Among other things, the owner or operator
must submit a compliance report for each semiannual reporting period
during which a deviation occurred, a leak was not repaired within the
specified time period, or a process change occurred that affected a
previous compliance determination or resulted in a new compliance
determination, including changes in the method of compliance.

V. Summary of Comments and Responses

    We received a total of 35 comments on the proposed rule from
industry representatives, trade associations, State and Federal
agencies, industry consultants, one environmental group, and the
general public during the public comment period. In addition, two
speakers provided testimony at a public hearing. Sections V.A through
V.H of this preamble summarize the significant comments and explain our
response. Other comments addressed minor clarifications to this rule or
other issues that we did not consider to be significant; these comments
and our responses to them are provided in the Response to Comments
Document.

A. Applicability

    Comment: Several commenters requested that EPA establish one or
more de minimis applicability thresholds below which area sources that
process or emit small amounts of urban HAP would be exempt from the
rule. For example, some commenters requested a more comprehensive
version of the proposed concentration thresholds of 0.1 and 1.0 percent
urban HAP in feedstocks and products that would also apply to fuels,
by-products, co-products, intermediates, HAP generated in the process,
and/or catalysts. Other commenters requested a mass-based HAP usage or
processing threshold (e.g., 2 megagrams per year or 25,000 lbs/yr),
actual or uncontrolled HAP emissions thresholds between 50

lbs/yr and 6.25 tpy, a threshold based on the quantity of HAP stored
onsite (consistent with the criteria that are used to determine
Superfund Amendments and Reauthorization Act 311/312 Tier 2 reporting
thresholds), or a combination of thresholds.
    Two commenters argued that EPA has legal authority to set de
minimis applicability thresholds. One commenter noted that the courts
have determined that EPA has the authority to establish de minimis
thresholds where the application of the statutory requirements would be
of trivial or no value environmentally (see Alabama Power Co. v.
Costle, 636 F 2d 323.360-61; D.C. Cir. 1979). Another commenter noted
that none of the provisions in the CAA related to EPA's obligation to
regulate area sources expressly prohibits EPA from using thresholds to
define the applicability of GACT standards, and they do not implicitly
mandate that EPA must regulate every HAP emission from an area source.
    Furthermore, one commenter noted that the proposed rule already
includes de minimis thresholds (the 0.1 percent and 1.0 percent urban
HAP concentrations in feedstocks and products), and previous rules have
included de minimis thresholds.
    Response: Regulation of the nine chemical manufacturing area source
categories is necessary for the Agency to meet the requirements of CAA
sections 112(c)(3) and 112(k)(3)(B) to regulate area source categories
representing 90 percent of the emissions of the 30 urban HAP. We listed
the nine chemical manufacturing area source categories because they
emit urban HAP and these categories were necessary to satisfy our
requirement to regulate area sources representing 90 percent of the
area source emissions of 15 of the 30 urban HAP. Area sources are, by
definition, smaller sources and we recognize that the nine area source
categories at issue are comprised of a large number of relatively small
facilities. But we note that, although area sources individually may
emit relatively low amounts of HAP, collectively, the level of
emissions is significant.
    As discussed above and in the preamble to the proposed rule, the
Agency determined that it was necessary to regulate these nine area
source categories to fulfill the mandate of CAA sections 112(c)(3) and
112(k)(3)(B) to regulate area sources accounting for 90 percent of the
emissions of the urban HAP. In listing the nine chemical manufacturing
area source categories at issue, the Agency did not condition the
listing of any of the categories based on a de minimis level of
emissions of the 15 chemical manufacturing urban HAP, beyond the
feedstock and product limitations discussed below and in the proposed
rule. We are, therefore, appropriately issuing emission standards that
regulate the emissions of the 15 chemical manufacturing urban HAP.
    One commenter noted that EPA has included de minimis concentrations
of urban HAP in feedstocks and products for purposes of determining
applicability. In the proposed rule, feedstocks and products were
defined as materials that contain the Table 1 HAP in concentrations
greater than 0.1 percent for carcinogens or greater than 1.0 percent
for noncarcinogens. As we have pointed out in several other area source
rulemakings, the CAA section 112(k) inventory was primarily based on
the 1990 Toxics Release Inventory (TRI), and that is the case for the
chemical manufacturing area source categories as well. The reporting
requirements for the TRI do not include de minimis concentrations of
toxic chemicals in mixtures, as reflected in the above concentration
levels; therefore, the CAA section 112(k) inventory would not have
included emissions from operations involving chemicals below these
concentration levels. See 40 CFR 372.38, Toxic Chemical Release
Reporting: Community Right-To-Know (Reporting Requirements).
Accordingly, the percentages noted above define the scope of the listed
source category; they are not exemptions. We received no adverse
comment on this issue, and we are finalizing the Table 1 HAP thresholds
for feedstocks and products in this rule.
    We have reviewed the listing decision for the nine chemical
manufacturing area source categories and have not identified any
information suggesting that small sources were not included in our
listing decision. As such, we do not believe we can satisfy our
requirement to regulate sources representing 90 percent of the
emissions of the chemical manufacturing urban HAP unless we subject all
sources that emit those HAP to regulation in this rule.
    Comment: Many commenters stated that applicability of the affected
source should be limited to individual emission points, individual
process units, or the group of process units that involve urban HAP,
not all chemical manufacturing operations, as was proposed. According
to the commenters, this change is needed in order to alleviate burden
and establish a cost-effective rule, particularly for specialty batch
manufacturers that may operate processes that use an urban HAP
infrequently. Commenters stated that EPA is not required to regulate
HAP other than the 15 chemical manufacturing urban HAP needed to meet
the 90 percent threshold. One commenter disagreed with EPA's basis for
establishing the two batch process vent subcategories where EPA
concluded that emissions > 19,000 lbs/yr represents solvent based, high
production volume processes with concentrated emission streams. The
commenter stated that this is only valid when applied to individual
processes, but invalid when applied to entire sites. Another commenter
stated that specialty chemical manufacturers would be
disproportionately impacted by the proposed rule because of frequent
variations and changes in product lines along with the unique aspects
of batch processing. This commenter stated that specialty chemical
producers will have to use thermal oxidizers with halogen controls, not
condensers as EPA assumed, if all chemical manufacturing operations are
covered. Commenters noted that costs to characterize wastewater streams
that contain no urban HAP would be significant if all chemical
manufacturing operations are covered. One commenter also expressed
concern that a facility-wide grouping of operations is subject to
various interpretations, which could lead to inconsistent
implementation among the nine industry sectors covered by the rule. On
the other hand, several commenters suggested that applicability be
based on the familiar concept of ``chemical manufacturing process
units'' as in other rules. Also, several commenters noted that a
primary concern is that the proposed rule would require compliance
facility-wide upon startup of any individual process that involves an
urban HAP and that their concerns would be minimized, if not
eliminated, if the affected source were based on process units that
involve urban HAP rather than all chemical manufacturing operations.
    Response: In the preamble to the proposed rule we explained the
Agency's authority to regulate all HAP, not only urban HAP, for those
area source categories needed to achieve the 90 percent requirement in
CAA section 112(c)(3). See 73 FR 58358. In the proposal, we explained
that we were applying the standards to the entire facility and all HAP
because the management practice requirements are equally effective for
all HAP and there is little, if any, additional cost for implementing
the management practices for all emission sources. In addition, where
add-on controls are required, demonstrating compliance for total HAP

is less burdensome than demonstrating compliance for speciated HAP and
that the controls are equally effective at reducing non-urban HAP
emissions. We also explained that it was our understanding that process
vents could be ducted together easily so that the cost for controlling
HAP emissions from all process vents would not greatly increase if the
rule so applied. We also assumed when proposing the rule that
facilities in these categories generally have only one or two processes
and that the processes are in close proximity to one another and that
facilities are not changing products or processes on a regular basis.
    Commenters contend that many of our assumptions were in error and
that if we based rule applicability on a CMPU basis instead of a
facility wide basis the cost of compliance with the rule and many of
their concerns would be addressed. As discussed below, based on the
commenters' suggestion and an evaluation of the industry and costs
associated with the proposed rule, we have in the final rule defined
the affected source as the CMPUs that emit the Table 1 HAP and the heat
exchange systems and wastewater systems associated with those CMPUs
instead of requiring compliance for the entire facility if one process
contains Table 1 HAP. As discussed in more detail below, we believe
that most of our assumptions at proposal remain accurate because of
this change.
    In addition, as we stated in the proposal, we continue to believe
that we have the authority to address all CAA section 112(b) organic
and metal HAP for those CMPUs subject to this final rule. Commenters
argue that EPA is not legally required to address all HAP, but they do
not state that the Agency has exceeded its discretion in doing so. For
the reasons set forth in the proposal, we appropriately exercised our
discretion to regulate the HAP at issue in this final rule. Moreover,
the commenter does not refute that the management practices and
emission limits are equally effective at removing non-urban metal and
organic HAP, and that demonstrating compliance for total HAP is less
burdensome than demonstrating compliance for speciated HAP for those
sources required to install add-on controls. For these reasons, the
final rule requires area sources to control all 112(b) organic HAP from
a CMPU that emits a Table 1 organic HAP and control all 112(b) metal
HAP from a CMPU that emits Table 1 metal HAP, as well as the heat
exchange systems and wastewater systems associated with those CMPUs.
    At proposal we estimated four facilities would have uncontrolled
batch process vent emissions greater than 19,000 lbs/yr, we assumed
condensers could be used to control the emissions, and we estimated the
total annual control cost would be $0.1 million/yr. We did not consider
costs for facilities that are currently controlled to levels less than
the proposed 90 percent level. After reevaluating the data, we estimate
that 19 facilities have uncontrolled emissions greater than 19,000 lbs/
yr, including the four uncontrolled facilities from the proposed
analysis and another four facilities with control levels greater than
90 percent. If we had accounted for facilities with low current control
levels, assumed centralized thermal oxidizers would be needed, and
assumed considerably more duct work and related manifolding equipment
was needed to connect numerous vents from several processes rather than
only one or two processes, then the costs would be at least $2.1
million/yr, and the cost-effectiveness would be at least $17,000/ton of
HAP controlled.
    Because of our misunderstanding of the sources' configuration, we
significantly underestimated the costs of compliance with the proposed
rule when we defined the affected source as the entire facility if
Table 1 HAP was emitted from any process. As stated above, we are
revising the rule to require compliance only by CMPUs that emit one of
the Table 1 HAP and heat exchange systems and wastewater systems
associated with those CMPUs. Under the new construct, the cost and
technological assumptions we made in the proposal are correct because
the process vents of a CMPU are most likely to be located in the same
building or otherwise in close proximity. In addition, estimating HAP
in process vents and wastewater on a process basis is more consistent
with normal operating practices for batch processes, and the owner or
operator can estimate annual emissions by tracking the number of
batches.
    With this change, we are addressing the concern raised by some
commenters that for complex facilities (according to a commenter the
number of processes can exceed 100) costs may be significant for
ducting all batch vents to a central control device. The change will
also limit applicability such that the commenters' concern that the
proposed rule would require compliance facility-wide upon startup of
any individual process that involves an urban HAP will be eliminated.
The Agency was mindful of the concern that requiring facility-wide
compliance for each new process using a Table 1 HAP could affect a
source's willingness to experiment with new products containing a Table
1 HAP. In addition, the costs to comply with such a rule would be
significant and sources would not know whether new product lines would
be profitable before being developed or whether the attempts to develop
new products would be successful. Under the final rule, facilities
using, producing, or generating a Table 1 HAP in a CMPU will only have
to comply with the rule for that specific CMPU.
    The change in scope of the affected source in the final rule from
the entire facility to the CMPUs that emit Table 1 HAP is necessary
because of our incorrect assumptions at proposal, as explained above.
The actual costs and environmental benefits for the final rule will be
similar to what was projected in the proposed rule. The rule will
regulate the same number of facilities, the rule will require add-on
controls for approximately the same number of units that we estimated
at the time of proposal, and the rule will achieve comparable
reductions of HAP and particulate matter (PM) emissions.
    Although commenters agreed that EPA has the authority to regulate
non-urban HAP, they suggest that the Agency only regulate the Table 1
HAP to reduce the burden and costs of compliance for some area sources.
We believe we have addressed these concerns by redefining the affected
source to be on a CMPU basis. If the CMPU uses, generates, or produces
one of the chemical manufacturing organic urban HAP, then the standards
apply to all CAA section 112(b) organic HAP in the affected CMPU.
Similarly, if the CMPU uses, generates, or produces one of the chemical
manufacturing metal urban HAP, then the standards apply to all CAA
section 112(b) metal HAP in the process units and the associated vents.
We continue to believe that the costs of controlling all organic or
metal HAP, as applicable, are reasonable. We find here, as we explained
at proposal, that the management practices and control requirements in
this rule that reduce urban organic HAP and urban metal HAP from the
affected sources are equally affective at reducing all CAA section
112(b) organic HAP or metal HAP, respectively.
    Comment: Several commenters suggested exempting biological products
(NAICS 325414), tall oil recovery systems, and carbon monoxide so that
the area source rule is consistent with the MON. One commenter
requested that the rule explicitly state whether or not it applies to
ethanol production facilities.
    Response: We have not exempted the cited processes, including
industrial ethanol production, because they are

included in the scope of the nine listed area source categories (NAICS
325). However, the rule does not apply to beverage alcohol production,
which is in NAICS 312.
    Comment: Several commenters requested that facilities not be
required to consider the presence of urban metal HAP in catalysts when
determining applicability of the rule because the catalysts remain
unchanged in the process equipment for significant periods of time, and
their use results in little, if any, emissions. One commenter observed
that, for catalysts, the potential for emissions is only from their
production and recycling, not their use in fixed beds.
    Other commenters requested exemptions for other forms of metals
(e.g., in nutrients for biological processes and metals in piping).
    Response: We are concerned only with metal HAP emissions. Metal HAP
in structures and metal HAP existing as articles (as defined in 40 CFR
372.3), where no metal HAP is released to the atmosphere, are not
covered by this rule. However, if the use of catalysts in the processes
results in Table 1 metal HAP emissions from the CMPU, then the CMPU is
subject to the applicable standards for the affected CMPU. If the
commenters' assessment of the level of emissions is accurate,
management practices would likely apply in these cases because the
sources would likely not fall within the subcategory for which add-on
emission controls are required.

B. Compliance Dates

    Comment: Several commenters requested adequate compliance time for
existing sources that do not become subject to the rule until a change
introduces urban HAP for the first time after promulgation of the final
rule or the initial compliance date. The commenters indicated that such
a situation would occur if a facility (1) adds a new process, with or
without new equipment, that introduces an urban HAP, or (2) makes a
process change that introduces an urban HAP (perhaps unexpectedly as an
impurity in a feedstock or generated as a byproduct). Several
commenters also requested adequate compliance time for new sources.
    Response: The rule has a compliance period of 3 years for existing
sources as authorized in the Part 63 General Provisions and section
112(i)(3) of the CAA. New processes at an existing source, whether for
a new process unit or to expand an existing process unit, would become
part of the existing source. If an existing source starts using a Table
1 HAP after the compliance date for existing sources has passed, the
affected CMPU must comply with the standards at the time the new
process begins. New sources must be in compliance upon startup or the
date of publication of the final rule in the Federal Register,
whichever is later.

C. Standards

1. General Issues
    Comment: One commenter stated that, while the CAA gives the Agency
the authority to issue GACT standards under section 112(d)(5) for area
sources, EPA's decision to issue GACT standards instead of MACT
standards is only valid if the Agency provides a rational explanation
to support the decision. The commenter further stated that EPA provided
no explanation for its decision to issue GACT standards instead of MACT
standards and that this alone makes the Agency's decision arbitrary and
capricious. The commenter also maintains that the Agency evaluated
proposed GACT measures by considering only cost-effectiveness. The
commenter states that the Agency rejected on cost-effectiveness grounds
the control options for the following emission sources: continuous
process vents with a TRE greater than 1; batch process vents for
facilities emitting less than 19,000 lbs/yr of organic HAP emissions;
metal HAP process vents for facilities emitting less than 100 lbs/yr;
cooling tower systems with cooling water flow rates less than 8,000
gal/min; equipment leaks; and transfer operations. The commenter
maintains that the statute does not direct EPA to set standards based
on cost-effectiveness, and that the Agency cannot and does not argue
that the control measures that were rejected are not appropriate for
application by chemical manufacturing plants. The commenter also argues
that the Agency does not claim that the economic impacts are too great,
explain how profitable the plants are, or how economically significant
the controls would be on the sources if required in this rule. The
commenter maintains that EPA based its decision only on the Agency's
views on cost-effectiveness and that EPA's views on this issue are not
relevant under CAA section 112(d)(5) and, therefore, the standards are
unlawful.
    Response: As the commenter recognizes, in CAA section 112(d)(5),
Congress gave EPA explicit authority to issue alternative emission
standards for area sources. Specifically, CAA section 112(d)(5), which
is entitled ``Alternative standard for area sources,'' provides:

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

See CAA section 112(d)(5) (Emphasis added).
    There are two critical aspects to CAA section 112(d)(5). First, CAA
section 112(d)(5) applies only to those categories and subcategories of
area sources listed pursuant to CAA section 112(c). The commenter does
not dispute that EPA listed the nine area source categories noted above
pursuant to CAA section 112(c)(3). Second, CAA section 112(d)(5)
provides that, for area sources listed pursuant to CAA section 112(c),
EPA ``may, in lieu of '' the authorities provided in CAA section
112(d)(2) and 112(f), elect to promulgate standards pursuant to CAA
section 112(d)(5). CAA Section 112(d)(2) provides that emission
standards established under that provision ``require the maximum degree
of reduction in emissions'' of HAP (also known as MACT). CAA section
112(d)(3), in turn, defines what constitutes the ``maximum degree of
reduction in emissions'' for new and existing sources. See CAA section
112(d)(3).\6\ Webster's dictionary defines the phrase ``in lieu of ''
to mean ``in the place of '' or ``instead of.'' See Webster's II New
Riverside University (1994). Thus, CAA section 112(d)(5) authorizes EPA
to promulgate standards under CAA section 112(d)(5) that provide for
the use of GACT, instead of issuing MACT standards pursuant to CAA
section 112(d)(2) and (d)(3). The statute does not set any condition
precedent for issuing standards under CAA section 112(d)(5) other than
that the area source category or subcategory at issue must be

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

    The commenter argues that EPA must provide a rationale for issuing
GACT standards under CAA section 112(d)(5), instead of MACT standards.
The commenter is incorrect, however. Had Congress intended that EPA
first conduct a MACT analysis for each area source category, and only
if cost or some other reason made applying the MACT standard
inappropriate for the category, would EPA be able to issue a standard
under CAA section 112(d)(5), Congress would have stated so expressly in
CAA section 112(d)(5). Congress did not require EPA to conduct any MACT
analysis, floor analysis, or beyond-the-floor analysis, before the
Agency could issue a CAA section 112(d)(5) standard. Rather, Congress
authorized EPA to issue GACT standards for area source categories
listed under CAA section 112(c), and that is precisely what EPA has
done in this rulemaking.
    Although EPA has no obligation to justify why it is issuing a GACT
standard for an area source category as opposed to a MACT standard, we
did explain at proposal that being able to consider costs and economic
impacts is important when establishing standards for categories like
these with many small sources. Furthermore, EPA must set a GACT
standard that is consistent with the requirements of CAA section
112(d)(5) and have a reasoned basis for its GACT determination. As
explained in the proposed rule and below, in determining what
constitutes GACT for a particular area source category, EPA evaluates
the control technologies and management practices that reduce HAP
emissions that are generally available for the area source category.
See 73 FR 58354. The legislative history supporting CAA section
112(d)(5) provides that EPA may consider costs in determining what
constitutes GACT for the area source category.\8\ EPA cannot consider
cost in setting MACT floors, pursuant to CAA section 112(d)(3).
Congress plainly recognized that area sources differ from major
sources, which is why Congress permitted EPA to consider costs in
setting GACT standards for area sources under CAA section 112(d)(5),
but did not permit that consideration in setting MACT floors for major
sources. This important dichotomy between CAA section 112(d)(3) and CAA
section 112(d)(5) provides further evidence that Congress sought to do
precisely what the title of CAA section 112(d)(5) states--provide EPA
the authority to issue ``[a]lternative standards for area sources.''
---------------------------------------------------------------------------

    \8\ Additional information on the definition of ``generally
available control technology or management practices'' (GACT) is
found in the Senate report on the 1990 amendments to the CAA (S.
Rep. No. 101-228, 101st Cong. 1st session. 171-172). That report
states 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.
---------------------------------------------------------------------------

    Notwithstanding the commenter's claim, EPA properly issued
standards for the area source categories at issue here under CAA
section 112(d)(5), and cost-effectiveness was not the only
consideration in setting the standards. As stated in the preamble to
the proposed rule:

    Determining what constitutes GACT involves considering the
control technologies and management practices that are generally
available to the area sources in the source category. We also
consider the standards applicable to major sources in the same
industrial sector to determine if the control technologies and
management practices are transferable and generally available to
area sources. In appropriate circumstances, we may also consider
technologies and practices at area and major sources in similar
categories to determine whether such technologies and practices
could be considered generally available for the area source category
at issue. Finally, as noted above, in determining GACT for a
particular area source category, we consider the costs and economic
impacts of available control technologies and management practices
on that category.

73 FR 58354, October 6, 2008.

    As the commenter noted, EPA proposed emission standards for eight
identified emission sources at chemical manufacturing area sources:
Continuous process vents; batch process vents; metal HAP process vents;
storage tanks; cooling tower systems; equipment leaks; transfer
operations; and wastewater systems. We also proposed to subcategorize
continuous process vents, batch process vents, metal HAP process vents,
storage tanks, cooling tower systems, and wastewater systems based on
variations of the size and type of the facility or the affected
operation. We reviewed the GACT applied at area sources in the chemical
manufacturing source categories at issue for each of the emission
sources covered in the proposed rule. In determining what was generally
available, we first considered what was generally available for each
category or subcategory of emission source based on what was being
applied at facilities or for emissions sources of a similar size and/or
type of facility or emission source. For example, for continuous
process vents, we considered what controls and management practices
were in place for units with a TRE greater than 1 and what controls and
management practices were in place for units with a TRE less than 1.
For batch process vents, we considered what controls and management
practices were in place at facilities that emitted more than 19,000
lbs/yr of organic HAP emissions and what controls and management
practices were in place at facilities that emitted less than 19,000
lbs/yr of organic HAP emissions. We also considered the control
technologies and management practices employed by chemical
manufacturing area sources already subject to standards, by facilities
in other areas source categories, and by chemical manufacturing major
sources. 73 FR 58366.
    After determining what controls and management practices were
generally available to the emission sources in the nine source
categories at issue, we considered the costs and economic impacts
associated with requiring the various controls and management practices
before determining what constituted GACT for each emission source. The
Agency specifically considered the cost-effectiveness of the different
control technologies and management practices on the categories and
subcategories of emission sources as a means of evaluating the costs of
those emission standards. EPA evaluated the controls and management
practices that were generally available and, in certain circumstances,
determined that GACT was not add-on controls because the cost-
effectiveness of such controls would not have been reasonable if
applied to all facilities or emission sources in a given category or
subcategory.
    Contrary to the commenter's assertions, the Agency's consideration
of cost-effectiveness in establishing GACT and the Agency's views on
what is a cost-effective requirement under CAA section 112(d)(5) are
relevant. The United States Court of Appeals for the District of
Columbia 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, 349 U.S. App. D.C.
118, 254 F.3d 195, 201 (D.C. Cir. 2001) (Finding EPA's decision to
consider costs on a per ton of emissions removed basis reasonable
because CAA section 213 did not mandate a specific method of cost
analysis). CAA section 112(d)(5) does

not mandate a specific method for considering cost when setting GACT
standards.
    The commenter has provided no information to support the argument
that add-on control requirements for process vents, storage tanks, and
heat exchange systems are generally available for all such emission
sources in each of the subcategories. The commenter also failed to
provide any information indicating that our cost-effectiveness
determinations were unreasonable and, likewise, failed to provide any
information concerning the economic impacts associated with requiring
the standards that the commenter suggests represent GACT. The commenter
appears to take issue with the manner in which the Agency establishes
GACT but provides no alternative approach, instead only attacking the
Agency's consideration of cost (i.e., cost-effectiveness) as a
consideration in the establishment of GACT. The Agency proposed GACT
standards for the nine chemical manufacturing area source categories
and subcategories that were established consistent with the
requirements of CAA section 112(d)(5).
    Comment: To avoid duplicative and conflicting requirements and to
minimize burden, several commenters requested clarification of
requirements when parts of an affected source under the area source
NESHAP are also subject to requirements under other rules.
Collectively, the commenters requested that the final rule address
overlap with Part 60 NSPS in subparts Kb, VV, VVa, DDD, III, NNN, RRR,
and the proposed YYY; Part 61 NESHAP in subparts V (as referenced from
subparts F and J), L, Y, BB, and FF; subparts AA, BB, and CC in parts
264 and 265; State and local leak detection and repair (LDAR)
requirements; other area source rules; and permit requirements that
incorporate MACT standards. The commenters made three types of
suggestions: (1) Specify that compliance with provisions in the other
rule demonstrates compliance with the requirements in 40 CFR part 63,
subpart VVVVVV, (2) allow compliance with whichever rule is the most
stringent, or (3) exempt sources from the requirements in the area
source rule when another rule applies. For example, one commenter
requested that compliance with any existing Federal, State, local, or
permitted LDAR requirements be allowed to demonstrate compliance with
the subpart VVVVVV equipment leak standards, provided the current
requirements are at least as stringent as the final subpart VVVVVV
standards. This commenter also requested exclusions from the wastewater
standards for any wastewater stream that is subject to 40 CFR part 61,
subpart FF, whether or not treatment is required under subpart FF, and
for any wastewater streams that become subject to 40 CFR part 60,
subpart YYY after the compliance date of subpart YYY. Another commenter
stated that when more than one area source rule applies, sources should
be allowed to opt for compliance with the more stringent requirements.
    Response: Provisions regarding overlap between 40 CFR part 63,
subpart VVVVVV and other rules are included in the final rule.
Compliance with provisions in overlapping rules as a means of
demonstrating compliance with this final rule is allowed to the extent
that requirements in the overlapping rule are at least as stringent as
the requirements in subpart VVVVVV. For example, if the emission
limits, monitoring requirements, and associated recordkeeping and
reporting requirements in the overlapping rule are all at least as
stringent as the requirements in subpart VVVVVV, then compliance with
the overlapping rule demonstrates compliance with subpart VVVVVV.
Conversely, if all of the provisions in subpart VVVVVV are more
stringent than the corresponding requirements in the overlapping rule,
then the final rule requires compliance with all of the provisions in
subpart VVVVVV. In all other situations where some provisions in the
overlapping rule are more stringent and others are less stringent than
those in this final rule, an owner or operator may demonstrate
compliance with the final rule by complying with all of the most
stringent requirements, whichever rule they are from. Specifically, to
comply with any requirement (emission limit, monitoring requirement,
recordkeeping requirement, and/or reporting requirement) in an
overlapping rule as an alternative to the requirement in subpart
VVVVVV, an owner or operator must first determine that the requirement
in the overlapping rule is at least as stringent as the corresponding
requirement in subpart VVVVVV. This determination also must be
documented in the notification of compliance status or, for processes
added in the future, in the semiannual compliance report that covers
the period when the process starts up. The final rule also states that
sources are responsible for making accurate determinations concerning
the more stringent standard and noncompliance with this rule is not
excused if it is later determined that the source was in error in its
initial notification of compliance and, as a result, is violating this
rule. Compliance with this rule is the responsibility of the affected
source regardless of any notification of compliance or semiannual
compliance report.
    Although the final rule includes these provisions for minimizing
the compliance burden associated with overlapping rules, we did not
include all of the commenters' other suggestions, for the reasons
discussed below.
    We disagree with one commenter's suggestion that a wastewater
stream subject to 40 CFR part 61, subpart FF, but exempt from treatment
under subpart FF should also be exempt from treatment requirements
under 40 CFR part 63, subpart VVVVVV. The subpart FF requirements apply
to the benzene content of the stream (or the total benzene in all
waste). The benzene content has no relationship to the urban HAP (or
other PSHAP) content of the stream. Therefore, treatment in accordance
with subpart FF satisfies the treatment requirement under the final
rule, but a stream that contains PSHAP and is exempt from treatment
under subpart FF must receive treatment under this final rule.
    40 CFR part 63, Subpart VVVVVV and another area source rule should
never apply at the same time because the affected sources do not
overlap. However, equipment could be subject to subpart VVVVVV and
either the chemical preparations or paint and allied products area
source rules at different times depending on what is being produced. In
these situations, sources should comply with each rule, whenever it is
applicable. Alternatively, the owner or operator may determine the most
stringent requirements in the applicable rules and comply with that
combination of requirements at all times.
    Coke by-product recovery plants are not part of the chemical
manufacturing area source category (i.e., they are described by NAICS
324199, All Other Petroleum and Coal Products Manufacturing);
therefore, 40 CFR part 61, subpart L does not overlap with 40 CFR part
63, subpart VVVVVV.
    Comment: Several commenters stated that the proposed management
practice requirements for process vents and storage tanks should not be
finalized. Each of these commenters objected to the management practice
requirements for one or more of the following reasons: (1) The proposed
requirements are not GACT because they are not industry practice, are
not required in other rules, achieve little or no emission reduction,
and cost more than EPA has estimated;

(2) some equipment is not designed to operate with covers or enclosed,
often because to do so would jeopardize the physical integrity of the
unit (i.e., pressure/vacuum vents on storage tanks); and/or (3) the
requirements duplicate and/or potentially conflict with the proposed
requirements for equipment leaks.
    Several commenters made additional points. Two commenters stated
that operating under vacuum should be exempted from or allowed as an
alternative to having all closure mechanisms in the closed position.
One commenter stated that equipment integrity verification procedures
that are part of CGMP required by the U.S. Food and Drug Administration
for pharmaceutical production processes should be recognized as an
acceptable alternative to the management practices. One commenter
requested an exemption from inspection requirements for inaccessible
and unsafe openings, and another commenter noted that the burden
estimates did not appear to reflect the cost to inspect openings that
are not generally accessible. One commenter stated that, in order to
protect themselves against disagreements with enforcement agencies,
facilities will feel the need to use instrument-based LDAR techniques
instead of the required sensory-based inspections.
    One commenter indicated that facilities supplement applicable
equipment leak regulations by having operation personnel watch for AVO
indications of a hydrocarbon leak during their rounds, but they do not
specifically check ``openings'' in equipment. Another commenter
suggested that EPA rely on the equipment leak provisions because many
of the elements in the proposed management practice requirements are
already addressed in the equipment leak provisions.
    Several commenters presented estimates of the level of effort and
costs to implement the proposed management practices. One commenter
estimated that total setup and training time would involve 100 hours
for operations personnel, 20 hours of technical time, and 10 hours of
administrative support. This commenter also estimated 20 to 40 hours to
conduct each inspection, and an additional 5 to 10 hours of
administrative support per inspection to manage the program.
    A second commenter estimated 40 hours of engineering time to
develop the initial list of openings and equipment, and 4 hours per
year to maintain the list. In addition, this commenter estimated each
inspection would take 24 hours of technician time, and a cost of
several thousand dollars would be incurred for scaffolding and man-lift
rentals. Overall, this commenter estimated the average cost to be about
$6,000/yr per facility; however, the commenter estimated the cost for
one facility would be cut by a factor of 5 if the rule applied only to
processes using or emitting urban HAP rather than all processes.
    A third commenter estimated the cost for process vent inspections
to be about $1,200/yr rather than the $300/yr estimated by EPA because
of the potentially large number of process vents that would have to be
considered under the proposed applicability requirements.
    A fourth commenter estimated 4 hours per process for setup of the
data management system, 1.25 hours per inspection per process, and a
contractor fee of $125/hr.
    Response: In consideration of the specific comments on management
practices as well as comments above regarding the scope of the affected
source, we have made several changes to the proposed management
practices. We made these changes because the proposed management
practice requirements were redundant for CMPU with both batch and
continuous process vents because the proposed requirements for both
emission points applied to all process equipment. In addition, a more
streamlined approach reduces the compliance burden without causing an
increase in emissions.
    In the final rule, the various proposed management practices for
process vents, equipment leaks, transfer operations, and storage tanks
were consolidated and simplified into one comprehensive set of
management practices that are applicable to each affected CMPU. The
comprehensive management practices in the final rule include
requirements to equip each vessel with a cover or lid that must be in
place when the vessel contains HAP (except for material addition and
sampling) and to conduct sensory inspections for leaks throughout each
affected CMPU on a quarterly basis. The proposed inspections for
equipment leaks are included without change in the final management
practice requirements, but the final rule also requires comparable
inspections for leaks from process equipment in a CMPU (e.g., reactors,
distillation units, process tanks) and for storage tanks that are part
of a CMPU and that store liquid that contains any Table 1 organic urban
HAP.
    We have also reevaluated the costs of the management practices. In
the proposal, we estimated the cost of inspections for equipment leaks
to be $1,187 per year per affected facility. This estimate included
initial costs of $1,200 for 15 hours for planning and training that
were annualized over 10 years plus estimated costs for quarterly
inspection, recordkeeping, and program administration. The average time
for an inspection and related recordkeeping was estimated to be 2 hours
(8 hours per year) per facility, and an additional 7 hours per year
were estimated for administration. We also estimated in the proposal
that management practice inspections for batch process vents,
continuous process vents, metal HAP process vents, and storage tanks
each would take four hours per year, and that recordkeeping related to
the inspections would require 1 hour per year. The total cost per
inspection was estimated to be $276 per year (or $1,100/yr for a
facility with all four types of emission points). This total is
consistent with the low end of the range presented by commenters.
    As discussed in sections III.A and V.A of this preamble, the final
rule includes a narrower definition of the affected source and we
believe that this will result in a lower level of effort for conducting
the inspections required by the management practices. Instead of
facility-wide inspections as anticipated at proposal, the final rule
requires inspections only for CMPUs that use, generate or produce Table
1 urban HAP. Therefore, we think that the overall estimates from
commenters are higher than warranted for the final rule. This is
supported by one commenter's estimate of $240/yr (instead of $1,200/yr)
for management practice costs if the inspections apply only to process
units containing chemical manufacturing urban HAP.
    The overall time estimated for the final management practice
requirements is less than the total time for the proposed equipment
leak inspections and management practices for process vents and storage
tanks. This is due to fewer process units being subject to management
practice requirements under the final rule. For the final standards, we
assumed 3 hours for each inspection of an average affected facility
with organic HAP and 2 hours for each inspection of an average facility
with metal HAP. The estimated time is lower for facilities with metal
HAP because the inspections will be focused more on openings than on
leak points (e.g., inspections of pumps and valves are not relevant
because metal HAP is only released from process units). We also assumed
2 hours per year for recordkeeping at an average facility. Overall, the
inspection and recordkeeping time was estimated to be

14 hrs/yr per facility for organic HAP and 10 hrs/yr per facility for
metal HAP. We also estimated that the average initial planning and
setup costs for management practices is the same as the proposed
estimate for the equipment leak inspections. As a result, the total
cost was estimated to be $1,500 per year for an affected facility with
organic HAP and $1,200 per year for an affected facility with metal HAP
emissions. These estimates are in reasonable agreement with the
estimates of costs for management practices put forth by several of the
commenters that suggested the applicability of the rule be based on the
CMPUs using Table 1 HAP as opposed to the entire facility as in the
proposed rule.
    One commenter stated that some equipment is not designed to operate
with covers or enclosed, often because to do so would jeopardize the
physical integrity of the unit, but the commenter only listed pressure/
vacuum vents on storage tanks. Because pressure/vacuum vents are not
openings as we contemplate them in the final rule, and are instead part
of the necessary design of certain tanks used for storage, we have
determined that there is no need to amend the final rule to address
this comment.
2. Batch and Continuous Process Vents
    Comment: One commenter supported the proposed GACT control level of
90 percent for batch process vents as a reasonable approach for
pharmaceutical manufacturing area sources. Other commenters, however,
stated that the proposed control levels for both batch process vents
and continuous process vents are too high to be GACT. According to one
commenter, most State implementation plans (e.g., Ohio) contain
volatile organic compounds (VOC) reasonably available control
technology (RACT) requirements that set control efficiency between 81
and 90 percent. Instead of using combustion controls that are typical
at major sources, this commenter further stated that area sources most
likely use condensers, carbon adsorption systems, or other material
recovery systems, which have emission removal efficiencies in the 85 to
95 percent range. Therefore, the commenter encouraged EPA to adopt 85
percent removal as GACT for both batch process vents and continuous
process vents. According to another commenter, the control level at
existing sources should be set at 90 percent for combustion devices
other than flares and 80 percent for process condensers. This commenter
noted that a condenser at one of their facilities is permitted for 85
percent control and pointed out that the efficiency of condensers
varies with changes in ambient temperature, humidity, and the type and
concentration of HAP in the emission stream.
    In addition to (or instead of) changing the required control level,
several commenters suggested that existing controls be grandfathered
because it would not be cost-effective to replace them. For example,
one commenter suggested grandfathering any control equipment currently
in compliance with State air pollution rules and permits until the next
reconstruction or replacement of the control device or 10 years after
the effective date of the rule, whichever occurs first. Another
commenter requested grandfathering provisions for control devices
achieving at least 80 percent reductions, either voluntarily or in
accordance with State rules or permits. Another commenter stated that
EPA should grandfather controls installed recently to meet RACT
requirements.
    Response: Based on comments received on the control efficiency
requirements, we have reviewed and revised the GACT analysis for batch
process vents. At proposal, detailed information on the control levels
achieved at area sources was limited. Because we had limited control
information, we pointed to various control level data at major source
facilities in the source categories of interest and we assumed that
these major source controls were used at or were transferable to area
sources. Multiple commenters pointed out that the control efficiency
requirement in the proposal was too high and reflective of major
sources only and was not consistent with the typical control
efficiencies achieved for batch process vents at their area source
facilities. Multiple comments provided information that the control
efficiency at area sources was lower than the control levels achieved
at major sources. Commenters stated that control efficiency at an area
source is in the range of 81 percent to 95 percent. Commenters also
noted that area sources use condensers and recovery systems with
control efficiencies lower than 90 percent. Based on a revised cost
analysis, which considers existing control devices and efficiencies, we
have determined that the GACT control efficiency for existing batch
process vents should be 85 percent. We estimated that 13 process units
that will be subject to the emission limit for batch process vents in
the final rule are not already controlled to at least 85 percent. The
total annual costs to control the batch process vents in these process
units are estimated to be $360,000 and the cost-effectiveness is
estimated to be $8,500/ton organic HAP. We do not have sufficient
information to estimate the number of process units that have batch
process vents controlled to levels between 85 percent and 90 percent.
Based on the comments, there may be many such processes. However, if
there are as few as two such processes (i.e., total of 15 process units
controlled to less than 90 percent), the total annual costs are
estimated to be $0.43 million/yr, and the incremental cost-
effectiveness relative to the 85 percent control option is estimated to
be $13,500/ton. This cost is unreasonable; therefore, we have
determined GACT for batch process vents at existing sources is 85
percent control and not 90 percent control. We are finalizing the
proposed requirements for batch process vents at new sources (90
percent control) because the estimated cost-effectiveness relative to
uncontrolled vents is reasonable ($2,300/ton as proposed).
    The commenters have provided no legal analysis in support of their
request that we grandfather existing controls as suggested. However,
given the change to the control requirements for batch vents, we
believe we have resolved the commenters' concerns with the proposed
rule and established final GACT standards that reflect the efficiencies
generally available at area sources. We have not revised the GACT
control efficiency for new batch process vents or new and existing
continuous process vents because we continue to believe that the
standards that we are finalizing are generally available and reasonable
from a cost perspective.
    Comment: Several commenters requested that the MON batch process
vent definition be used to be consistent with the preamble, database,
other regulations applicable to chemical manufacturing, and general
industry practice. Another commenter requested exclusions from the
definition for the following: Opening of a safety device, heating,
ventilation, and air conditioning exhaust vents, storage tank vents,
and wastewater treatment unit vents.
    One commenter asked that EPA exclude emissions from bottles and
other containers from the batch process vent definition. According to
the commenter, emissions from these containers are negligible and
controlling them was not considered in the rulemaking record, is not
cost-effective, and does not reflect GACT.
    Response: As noted in the response to a comment about
subcategorization of batch process vents later in this section,

applicability and standards for control of batch process vents in the
final rule are consistent with the MON. Therefore, the definition for
the term ``batch process vent'' is very similar to the definition of
this term in the MON. A key feature of this definition is that it cites
examples of equipment with emissions that may be batch process vents,
and it specifies types of streams that are not batch process vents. For
example, the definition states that storage tanks, surge control
vessels, and bottoms receivers do not have batch process vents (because
they are classified separately and subject to separate standards).
Process tanks, however, do have batch process vents. Process tanks
collect material discharged from a feedstock storage tank or unit
operation within the process, discharge the material to another unit
operation or product storage tank, have emissions related to the
characteristics of the batch cycle, and do not accumulate product over
multiple batches.
    Comment: Several commenters asked that 40 CFR 63.11496(a)(1) be
revised to allow alternatives to the referenced emissions calculations
procedures in 40 CFR 63.1257(d)(2)(i) of the Pharmaceuticals Production
NESHAP because the referenced procedures are difficult, costly, and do
not allow the use of historical information. For example, one commenter
requested that area sources be allowed to use mass balances, other
calculation methodologies published by EPA (such as AP-42 and control
techniques guidelines), and other technically acceptable methods
(otherwise, the commenter estimated that small sources would need to
spend $5,000 to $10,000 for emission estimation software).
    Two commenters encouraged EPA to allow use of the emissions
calculations procedures in 40 CFR 63.1323(b) and (e) of the Polymers
and Resins IV NESHAP. One commenter asked that calculation procedures
in the Batch Alternative Control Techniques (ACT) document be allowed,
and another commenter asked that area sources be allowed to use (1)
engineering estimates (in accordance with 40 CFR 63.1257(d)(2)(ii)) for
any calculation rather than only if the 40 CFR 63.1257(d)(2)(i)
procedures do not apply, (2) existing emissions calculations developed
for compliance with a State or Federal rule for batch process vents,
and (3) procedures to back-calculate uncontrolled emissions using inlet
HAP and VOC concentrations based on controlled outlet permit limits,
control removal capability, or knowledge of HAP and VOC concentrations
in the vent (if not indicated in permit).
    Response: Emissions must be calculated to determine whether the
batch process vents are in the subcategory of greater than or equal to
uncontrolled emissions of 10,000 lbs/yr, which requires management
practices and compliance with emissions limits and control
requirements, or in the subcategory of less than 10,000 lbs/yr of
uncontrolled emissions, which requires only management practices for
the process. For the purpose of this determination at area sources, we
have concluded that all of the methods suggested by the commenters to
calculate uncontrolled emissions at area sources are acceptable. Having
choices also reduces the burden on affected sources. Therefore, the
final rule specifies that organic HAP emissions from batch process
vents may be estimated using process knowledge, engineering
assessments, or test data. The procedures specified in 40 CFR 63.1257
of subpart GGG, in the Polymers and Resins IV rule, or in the Batch ACT
are classified as engineering assessments.
    Comment: One commenter stated that the GACT analysis for batch
process vents is flawed and inconsistent with rule applicability. The
commenter noted that batch process vent control requirements should be
on a process unit basis to better reflect the Agency's analysis,
industry practice, and GACT. This commenter also stated that the
control threshold of 19,000 lb/yr HAP emissions for batch process vents
is GACT, but only if EPA adopts a process unit basis.
    Another commenter asked that EPA sharply limit control requirements
for process vents in order to achieve GACT. To do this, the commenter
suggested limiting source applicability to a process unit basis,
setting a threshold for control at 10,000 lbs/yr/process as in MON, and
requiring only management practices for all affected process units
below 10,000 lbs/yr/process.
    Response: It appears the commenters are addressing the basis for
the proposed subcategorization of batch process vents. As we noted in
the preamble for the proposed rule, the CAA provides EPA authority to
distinguish among classes, types or sizes of sources within a source
category. For the proposal, we concluded that ``factors relating to the
type of operation (high solvent use) and size of operation (based on
the number of batches) provide a reasonable basis for