the control technologies and management practices that reduce HAP
emissions that are generally available for the area source category.
See 72 FR 116638. The legislative history supporting section 112(d)(5)
provides that EPA may consider costs in determining what constitutes
generally available control technologies or management practices for
the area source category (GACT).\7\ EPA cannot consider cost in setting
MACT floors,

pursuant to 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
section 112(d)(5), but did not permit that consideration in setting
MACT floors for major sources. This important dichotomy between section
112(d)(3) and section 112(d)(5) provides further evidence that Congress
sought to do precisely what the title of section 112(d)(5) states--
provide EPA the authority to issue ``[a]lternative standards for area
sources.'' EPA properly issued standards for the area source categories
at issue here under section 112(d)(5), and as demonstrated below, EPA
has a reasoned basis for each of its GACT determinations.
---------------------------------------------------------------------------

    \7\ 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 Clean Air
Act (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.
---------------------------------------------------------------------------

    Finally, even accepting, for arguments sake, the commenter's
assertion that EPA must provide a rationale basis for setting a GACT
standard as opposed to a MACT standard, we did so in the proposed rule.
In the proposal, we explained that we can and do consider costs and
economic impacts in determining GACT. We also explained that the
facilities in the source categories at issue here are already well
controlled for the Urban HAP for which the source category was listed
pursuant to section 112(c)(3). See 72 FR 16638. We believe the
consideration of costs and economic impacts is especially important for
the well-controlled area sources at issue in this final action because,
given current well-controlled levels, a MACT floor determination, where
costs cannot be considered, could result in only marginal reductions in
emissions at very high costs for modest incremental improvement in
control for the area source category.
    Comment: One commenter stated that EPA's alternative proposal (72
FR 16647) that GACT is no further emissions reduction for existing area
sources in three source categories (chromium compounds manufacturing,
carbon black production, and acrylic and modacrylic fibers production)
is unlawful and arbitrary. The commenter stated that the Agency
provided no basis whatsoever for concluding that GACT is no further
emission reduction. In particular, the commenter claimed that EPA
provided no basis for concluding that: (1) Chromium compounds
manufacturers cannot reduce their emissions of such pollutants through
the use of generally available control measures, (2) carbon black
manufacturers cannot reduce all their emissions of HAP at least to the
98 weight percent reduction or 20 ppmv standards, and (3) acrylic and
modacrylic fibers manufacturers cannot reduce their emissions of HAP at
least to the levels EPA has identified as GACT.
    Response: In the preamble to the proposed rule for the Acrylic and
Modacrylic Fibers Production area source category, we solicited
comments as follows:

    We are alternatively proposing that GACT for this existing area
source is no further emission reduction. We request comment on the
basis, consistent with section 112(d)(5), for asserting that GACT is
no further control for the existing source. We request comment on
this issue because the standard proposed above will not result in
any emission reductions beyond what is already required by the State
permit to which the existing facility is already subject.

    We included the same request for comments in the preamble for the
Chemical Manufacturing: Chromium Compounds area source category and the
Carbon Black Production area source category. We are not finalizing
this approach in the final rule. Rather, we are finalizing the proposed
emissions standards with minor changes.

B. Proposed NESHAP for Acrylic and Modacrylic Fibers Production Area
Sources

    Comment: One commenter stated that EPA's decision to reject steam
stripping of wastewater streams as GACT for the one existing area
source plant on cost effectiveness grounds is unlawful and arbitrary.
The commenter asserted that in the proposed rule, EPA did not dispute
that steam stripping was commercially available and appropriate and did
not claim that the economic impact was too great. The commenter further
asserted that EPA presented only its own subjective views on cost
effectiveness, which are not relevant under section 112(d)(5).\8\
According to the commenter, EPA's decision to reject steam stripping is
arbitrary because the Agency did not consider the relevant factors
(availability, appropriateness, and cost) in determining what
constitutes GACT. The commenter further stated that EPA failed to
explain why it based its rejection of steam stripping on its claims
about cost effectiveness or to explain why it did not consider the
reductions cost effective.
---------------------------------------------------------------------------

    \8\ The commenter cites legislative history, noting that GACT
must reflect the ``methods, practices and techniques that are
commercially available and appropriate for application by the
sources in the category considering economic impacts'' (72 FR 16638,
quoting S. Rep. No. 101-228, at 171-172).
---------------------------------------------------------------------------

    Response: As stated in the preamble to the proposed rule (72 FR
16638, April 4, 2007):

    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.

    Prior to proposal, we reviewed the generally available control
technologies and management practices that have been applied to
wastewater at the one existing acrylic and modacrylic fibers area
source plant. This plant has a wastewater stream with a low
concentration of AN, and the wastewater is processed in a wastewater
treatment system to remove organic compounds and degrade the AN. We
also considered the control technologies and management practices
employed at major sources in this category for treating wastewater
streams and determined that the major sources were treating similar
low-HAP concentration wastewater streams in the same manner as the area
sources in this category. We also evaluated the feasibility of steam
stripping to remove the AN even though it was not employed in the
category for low-HAP concentration wastewater streams. We stated at
proposal that steam stripping the wastewater stream would require a
capital expenditure of $700,000 with a recurring total annualized cost
of $630,000 per year. We stated that, assuming a 90 percent removal
rate, the emissions reduction from steam stripping for the existing
area source facility would be 7 tpy. The cost effectiveness would be
$90,000 per ton of AN.\9\ We determined that steam stripping of the
wastewater stream at the only known existing area source was not
appropriate for application for the source because it was not cost
effective. See e.g., Husqvarna AB v. EPA, 349 U.S. App. DC 118, 254
F.3d 195, 201 (DC 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). Consequently,

we concluded that GACT was the plant's current management practice of
processing the water in a wastewater treatment system.
---------------------------------------------------------------------------

    \9\ We recognize that in other contexts the effectiveness of
steam stripping is 96 percent, which results in a cost effectiveness
of $85,000 per ton of AN.
---------------------------------------------------------------------------

    In response to comments, we evaluated plants in similar industrial
categories (e.g., the synthetic organic chemical manufacturing industry
subject to subpart G in 40 CFR part 63) and found that the general
management practice for low-HAP concentration wastewater streams is to
process the water in a wastewater treatment system similar to that
employed by the existing acrylic and modacrylic area source. We
conclude here that the current practice employed at the existing
facility is GACT and, consistent with our finding at proposal, stream
stripping is not GACT for this area source category.
    Comment: One commenter stated that the proposed rule for existing
sources was very specific to the one area source plant that EPA
identified and stated that it should more appropriately be based on
efficiencies or concentrations to allow some operating flexibility.
While the commenter acknowledged that this facility is the only acrylic
fiber manufacturer currently known to be an area source, the commenter
believed that future facilities may struggle to comply with such site-
specific requirements. Specifically, the commenter suggested that the
proposed emissions limit for polymerization process equipment, which is
expressed in terms of pounds per hour (lb/hr), should be written more
generally for different types of processes and control equipment that
might be used and should require a control efficiency or outlet
concentration. According to the commenter, this would more closely
match the approach provided for new sources which used efficiency and
concentration limits.
    The commenter also noted that the control device parameter
operating limit for existing sources specifies the water flow rate of
the scrubbers. The commenter stated that the standard should require
the operating parameters to be established based on performance
testing. The commenter asserted if past testing is used and parameters
were previously set, this should still be acceptable. According to the
commenter, this approach would allow the existing facility flexibility
to change these parameters based on performance testing should it
become necessary.
    Response: We agree that the proposed emission limit for process
vents is very site-specific to the one known area source plant. We are
providing existing sources with the option of complying with the
standards for new sources. Although the standards for new and existing
sources are expressed in different formats, both standards require the
same level of emission control, and both ensure that the technology
identified as GACT is in place. Thus, the compliance alternative we are
adopting in the final rule provides an equivalent level of control and
additional flexibility for existing sources to demonstrate compliance
with the NESHAP.
    We also agree with the commenter's suggestion about establishing
operating limits for the scrubbers during a performance test and have
revised the rule accordingly. The scrubber water flow must be monitored
during the performance test, and the test must demonstrate compliance
with the emission limit. The operating limit for scrubber water flow is
determined from the lowest average flow rate during any test run that
shows compliance with the emissions limit.

C. Proposed NESHAP for Carbon Black Production Area Sources

    Comment: Two commenters stated that there are no area sources in
the source category producing carbon black by the furnace or thermal
processes. The commenters believed that the 2002 National Emissions
Inventory (NEI) incorrectly designated the Degussa Engineered Carbon
facility in Belpre, Ohio, as an area source. Both commenters claimed
that the emissions reported in the NEI and the 2005 Toxics Release
Inventory (TRI) from this facility, which are below the major source
thresholds, represent levels after control but that the uncontrolled
``potential to emit'' emissions are considerably above the major source
thresholds.
    The commenters asserted that this facility was identified as the
only existing area source in the category and was used to form the
basis for GACT. The commenters stated that EPA determined GACT based on
this mistaken identification of the Belpre, Ohio facility as an area
source. The commenters requested that EPA reconsider its GACT
determination in light of the fact that the source considered in making
such a determination is a major source and that GACT determinations
require considerations of economics and a technical feasibility for the
smaller sources outside of the major source category. The commenters
stated that GACT for area sources should be less stringent than MACT
for major sources due to the financial and technical considerations
that would apply to a smaller area source.
    Response: The identification of the Degussa plant in Belpre, OH as
an area source was due in part to the information in the NEI and TRI as
suggested by the commenters. We also reviewed the plant's title V
permit, which expires in December 2007. The permit indicated that the
plant was a major source of criteria pollutants and not a major source
of HAP emissions. The permit also did not indicate that the plant was
subject to the MACT standard in subpart YY (40 CFR part 63). While we
were aware of the plant's recent permit renewal application that
incorporated the provisions of subpart YY, it was still unclear whether
the plant was a major source of HAP. However, since one of the
commenters is the plant itself, we accept that we made an error in
considering this facility to be an area source.
    In light of this new information, we reevaluated our GACT
determination for existing carbon black area sources. As stated in the
proposal preamble (72 FR 16638, April 4, 2007):

    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.

    Given that there are no current area sources, we examined all
existing carbon black plants, which happen to be all major sources.
Those sources have applied technologies to reduce organic HAP emissions
from main unit process vent streams with concentrations of 260 ppmv or
greater. The control technologies typically used for this source
category are flares and incinerators. These control technologies have
also been widely applied to many emission sources in other similar
industrial source categories, such as process vents at petroleum
refineries and chemical plants. These control technologies are
therefore generally available.
    Even if by some mechanism an existing major source becomes an
existing area source, that facility would already have the necessary
controls in

place and the facility would incur no additional costs in response to
this final NESHAP. The facility would not be able to remove or
discontinue use of any of the controls because they would likely exceed
the major source thresholds (i.e., the commenters pointed out that
their potential to emit based on emissions before control exceeds major
source thresholds). Further, the controls were installed to meet permit
limits for criteria pollutants, and these requirements would not change
just because a source became an area source of HAP emissions.
    Accordingly, after considering the availability of the above-
identified control technologies, which provide the most effective
control of HAP emissions from these processes, their demonstrated
applicability to carbon black facilities and similar emission sources,
and their reasonable costs for vent streams with concentrations above
260 ppmv, we are finalizing the standard for carbon black area sources
set forth in the proposal.
    Comment: One commenter stated that EPA's decision to provide a 260
ppmv applicability cutoff in the proposed rule for carbon black
producers is based on factors that are irrelevant to the establishment
of GACT standards under section 112(d)(5) and devoid of any rational
explanation. According to the commenter, EPA determined that GACT for
carbon black manufacturing is either a 98 weight-percent reduction in
HAP emissions or a 20 ppmv concentration standard. The commenter
claimed that EPA proposed to allow sources to meet an alternative 260
ppmv standard. According to the commenter, EPA's only explanation for
allowing sources to emit 13 times as much HAP as its own GACT standard
would allow is that ``this cutoff represents the lowest control device
inlet concentration reported at one of the best-controlled facilities''
and ``we do not have available information to indicate that the single
existing area source controls process vent emissions with
concentrations below this level.'' The commenter asserted that EPA did
not explain the relevance of either of those claims to its
determination of GACT. According to the commenter, the control device
inlet concentration at any given source is in no way indicative of the
emissions level that can be achieved by the technology that EPA itself
has recognized as GACT and therefore, it is irrelevant to the GACT
determination. The commenter also claimed that because control device
inlet information is irrelevant under section 112(d)(5), EPA's decision
to base an alternative GACT decision on such information is arbitrary
and that EPA's complete failure to explain why it would base its GACT
decision on such information or why it believed that such information
is even relevant to the determination of GACT is also arbitrary.
    The commenter stated that to the extent EPA based its decision on
the fact that the single source currently in the area source carbon
black category does not currently control vent emissions streams below
the 260 ppmv level, its decision is unlawful. The commenter asserted
that EPA's obligation under section 112(d)(5) is to base standards on
control measures that are commercially available and appropriate for
the category. According to the commenter, the fact that a source has
not already voluntarily controlled its emission streams below a given
level does not mean that control technology is not commercially
available for use on such streams or that the use of such technology is
not appropriate. The commenter stated that EPA did not even suggest
that using a flare or incinerator to control emissions from vent
streams with concentrations below 260 ppmv is either technically or
economically infeasible.
    Response: As noted above, other commenters reported that the
facility originally identified as the only existing area source in this
category (upon which the proposed GACT requirements were based) is in
fact a major source. Therefore, as we stated in the previous response,
we reevaluated GACT for this category and determined that for sources
with process vent stream emissions of 260 ppmv or greater, the
technology that applies at major sources (i.e., flares or incinerators)
is transferable to area sources. We have no emissions data for process
vent streams below 260 ppmv, as the major sources are not required to
control below this level.
    As an initial matter, we reject the commenter's statement that
control device inlet concentration is not relevant. The inlet
concentration and other stream characteristics (i.e., the
characteristics of the uncontrolled emission stream) are directly
related to both the effectiveness and the cost of a control device. For
example, the heating value of components of the inlet stream is a key
component in the effectiveness and cost of a flare. Therefore, the
concentration affects flame stability, emissions, and flame structure.
A lower concentration (and thus lower heating value) produces a cooler
flame that does not favor combustion kinetics and is also more easily
extinguished. While these limitations can sometimes be overcome through
the use of auxiliary fuels, this increases the costs. Therefore, we
believe that the use of concentration is an appropriate consideration
in determining GACT for this source category.
    Flares and incinerators are established control technologies that
are generally available for this source category for POM, which is the
Urban HAP for which this source category was listed. Therefore, we
analyzed the potential impacts associated with a requirement to control
process vent streams with organic HAP concentrations of 260 ppmv or
less. We estimate that the cost effectiveness of controlling a 260 ppmv
stream with a flare would be around $19 million per ton of POM emission
reduction (carbon black production was listed as an area source
category based on emissions of POM). The cost effectiveness of an
incinerator was estimated to be almost $25 million per ton of POM
reduction. We believe that the costs of requiring the control of
process vent streams with organic HAP concentrations less than 260 ppmv
are cost prohibitive and therefore do not represent methods, practices,
and techniques which are generally available for application by the
sources in this category. Therefore, the final rule retains the 260
ppmv applicability threshold.

D. Proposed NESHAP for Chemical Manufacturing Area Sources: Chromium
Compounds

    Comment: One commenter objected to the proposed standard requiring
plants to operate a capture system that collects gases and fumes from
each emissions source and conveys the gases to a PM control device
because, according to the commenter, EPA did not say how efficient
either the capture system or the PM control device must be. The
commenter also stated that EPA appears to indicate that any capture
system and control device will do, but the commenter acknowledged that
EPA did provide equations that appear to establish numerical limits on
PM emissions on a pounds per hour basis. The commenter stated that
EPA's apparent assumption that all PM control is the same and equally
sufficient for controlling emissions from this source is at odds with
the record evidence and is arbitrary.
    According to the commenter, not all PM controls are equally
effective. The commenter stated that ``it is plain from the discussion
of PM controls provided by both EPA itself and ICAC that PM controls
vary widely in effectiveness, and is plain that chromium compound
manufacturers could reduce their emissions of hexavalent chromium and

other HAP by using more effective PM controls.'' Examples given by the
commenter include more effective fabric filters such as filters with
better fabric or better baghouse design and more effective scrubbers.
    According to the commenter, EPA did not consider the possibility of
requiring any controls other than those that are currently in use and
did not discuss which technologies are currently available, their
effectiveness, or how much they cost. The commenter asserted that EPA's
rejection of more effective controls without even considering them is
arbitrary and capricious.
    Response: We disagree with the commenter's statement that EPA
concluded that any capture system or any control device is, as the
commenter implies, sufficient in the abstract to comply with the
NESHAP. EPA established numerical emissions limits for chromium, using
PM as a surrogate, and the emissions limits are established by
equations set forth in the rule. The commenter stated that the
equations ``appear'' to establish numerical emission limits, and, in
fact, the equations do establish such limits on a pounds per hour
basis, and the commenter's implication that they do not is unsupported.
    Further, we disagree with the commenter that we assumed that all PM
control devices are equally effective. We proposed an emissions
standard for the metal HAP at issue using PM as a surrogate. The PM
emissions standard identified as GACT was based on control technologies
that are generally available, considering cost, and represent a level
of control that has been achieved at the two existing chromium compound
manufacturing facilities.
    As we discussed earlier, in determining GACT for area sources, we
examine the demonstrated and generally available controls at area
sources in the source category. See 72 FR 16638, April 4, 2007. We also
consider the standards applicable to major sources in the category and
determine if those controls are generally available and transferable to
area sources. See 72 FR 16638, April 4, 2007. In addition, in
appropriate circumstances, we may consider technologies employed at
similar industrial source categories. See 72 FR 16638, April 4, 2007.
We also consider cost and economic impacts of generally available
control technologies or management practices on a source category in
determining GACT. See 72 FR 16638, April 4, 2007.
    In this case, at proposal, we evaluated the control technologies
that are used by the existing chromium compound manufacturing area
source facilities. The two processes with the greatest emissions
potential are the high temperature operations of the rotary kilns used
for roasting the chromite ore and the processes used for quenching the
hot kiln roast. Both plants use a combination of wet scrubbers and
electrostatic precipitators in series for one or both of these
processes. This combination of wet scrubbers and electrostatic
precipitators has been demonstrated as effective for this source
category and is generally available.\10\ Thus, we established GACT
based on the current controls employed at the two area sources in this
category. We did not find that the costs and economic impacts of
compliance would be significant because the controls that we determined
were generally available in the category were being employed at the
existing facilities, and nothing in the record indicated that the costs
would be prohibitive for new sources.
---------------------------------------------------------------------------

    \10\ The effectiveness of these controls is shown by the TRI
reporting for the North Carolina plant with a 95 percent reduction
in chromium emissions since the control technology identified as
GACT was installed.
---------------------------------------------------------------------------

    There are no major sources in this category, and we did not
consider similar source categories at proposal. In response to
comments, however, we have evaluated similar primary metal industries.
We have found that electrostatic precipitators, often in combination
with scrubbers, the same controls employed by the emissions sources in
this category, are the commonly used control devices for the smelting
or roasting operations in other primary metal industries, including
primary steel, primary copper, and primary zinc production. We affirm
our conclusion that the proposed controls are GACT for this area source
category. The proposed standard, with minor changes discussed
elsewhere, is finalized in this rulemaking.
    Comment: One commenter requested clarification of the performance
test requirements. The commenter pointed out that for an existing
facility, the proposed rule allows certification of compliance with the
emission limits based on a previous performance test conducted within
the past 5 years; otherwise, a facility must conduct tests to
demonstrate initial compliance. The commenter noted that the proposed
rule conflicted with the General Provisions table which indicates that
performance test requirements apply to an existing source only if the
permitting authority requests the tests. The commenter stated that he
initially understood that EPA would require initial performance tests
only if requested by the permitting authority. According to the
commenter, the two affected plants that produce chromium compounds from
chromite ore are currently performing adequate monitoring,
recordkeeping, and reporting to demonstrate compliance with the
proposed emissions limits, and any decision to require performance
tests should be at the discretion of the permitting agency.
    Response: We acknowledge that the current title V permits for the
affected plants require performance testing only at the request of the
permitting authority. However, the final rule requires performance
testing if a valid performance test has not been conducted within the 5
years prior to the effective date of the final rule. We found that
performance tests have not been conducted within the past 5 years at
the two existing plants, and a few minor emissions sources have never
been tested. An initial performance test or a recent performance test
is very important to ensure that the control devices are operating as
designed and can be shown to meet the applicable emissions limit.
Although the plants have performed the monitoring, reporting, and
recordkeeping required by their permits, we cannot correlate the
monitoring results to the performance of the control devices to ensure
the emissions limits are met unless a performance test has been
conducted to demonstrate this. Once a performance test has demonstrated
compliance, we will have assurance that subsequent monitoring will
ensure that the emissions sources continue to operate as designed and
as demonstrated by the performance test.
    The commenter is correct in that there were conflicting entries in
the General Provisions table of the proposed rule for performance test
requirements. We have corrected the table in the final rule to clarify
the performance test requirements as discussed above.
    Comment: One commenter requested that EPA clarify the definition of
a ``new'' affected source. The commenter asked if a new affected source
includes new or reconstructed equipment at an existing site, or is a
new affected source a new or reconstructed chromium chemical
manufacturing facility. The commenter suggested that EPA add a
definition of ``chromium compounds manufacturing facility.''
    Response: The proposed rule stated that the ``affected source'' is
``each chromium compounds manufacturing facility.'' We have added a
definition of ``chromium compounds manufacturing facility'' to further
clarify what the affected source is. A new affected source is one for
which construction or

reconstruction commenced after April 4, 2007. The definitions of
``construction'' and ``reconstruction'' are given in the General
Provisions (40 CFR 63.2).
    Comment: One commenter objected to the proposed requirements for
initial control device inspections for plants that are already
implementing the inspection requirements according to an established
schedule in an approved title V permit. The commenter claimed that the
proposed requirement for initial inspections will result in increased
costs and result in shutdown of key emissions sources and control
devices that are not due for inspection until 2008 and 2009. The
commenter provided an example of kilns that must be shutdown and cooled
before the internal components of the electrostatic precipitators can
be inspected. According to the commenter, the shutdown and cooling
period for the kilns takes several days and results in significant cost
in terms of lost production and other expenses. As an alternative, the
commenter suggested that EPA require an initial inspection prior to
startup for installed control devices which have not operated within 60
days of the compliance date.
    Response: Our intent at proposal was to codify the control device
inspection requirements currently in the permit of the North Carolina
plant because we determined that these requirements represent what is
generally available, and this plant had inspection requirements that
were more comprehensive than those at the other area source plant. The
proposed inspection requirements included daily, monthly, annual, and
biennial inspections for various control devices and their components.
To perform the internal inspection, it is necessary to shut down the
process (the high temperature kilns) and allow the system to cool down.
We agree that the 24-month period as stated in the permit is reasonable
for this particular type of inspection. It provides flexibility to the
facility to perform the inspection during periods of regularly
scheduled kiln maintenance, which minimizes the disruption to
production and the large expense that would result from a mandatory
initial inspection and subsequent annual inspections. The operating
processes also have to be shut down for the annual internal inspections
of baghouses and wet scrubbers. Consequently, we have revised the rule
to state that an initial inspection of the internal components of
electrostatic precipitators does not have to be performed if an
inspection has been performed within the past 24 months. The next
inspection must be performed within 24 months of the last inspection,
and subsequent inspections of the internal components must be performed
for each following 24-month period. Similarly, an initial inspection of
the internal components of baghouses and wet scrubbers does not have to
be performed if an inspection has been performed within the past 12
months. The next inspection must be performed within 12 months of the
last inspection, and subsequent inspections of the internal components
must be performed for each following 12-month period. However, we
continue to require initial inspections that do not require shutting
down the process and control device, such as inspecting baghouses and
ductwork for leaks, verifying the proper operation of electrostatic
precipitator parameters, and water flow to wet scrubbers.
    We agree with the commenter's suggestion that we require an initial
inspection prior to startup for installed control devices which have
not operated within 60 days of the compliance date. This inspection can
be performed before process operations resume and thus would not
require a disruptive shutdown.
    Comment: One commenter asked if annual inspection requirements for
wet scrubbers apply to cyclonic scrubbers prior to wet electrostatic
precipitators. According to the commenter, this is not a requirement in
the current title V permit and would not be consistent with EPA's
approach of codifying the monitoring requirements currently applicable
to the North Carolina plant.
    Response: Our intent at proposal was to be consistent with the
established inspection requirements in the title V permit of the North
Carolina plant. The permit requires internal inspections of
electrostatic precipitators, wet scrubbers, and baghouses that are used
as primary control devices. Internal inspections of cyclonic scrubbers
that are installed upstream of the electrostatic precipitators are not
required by the permit, nor do we believe they are needed. Unlike
electrostatic precipitators, cyclonic scrubbers do not have complex
internal components subject to failure that would affect emissions
control performance. Consequently, we are clarifying that annual
internal inspections of cyclonic scrubbers installed upstream of
electrostatic precipitators are not required. However, we continue to
require monitoring for the cyclonic scrubbers, including the presence
of water flow and visual inspections of the system ductwork and
scrubber unit for leaks.
    Comment: One commenter requested changes to the process description
in the preamble to the proposed rule and corresponding revisions and
clarifications to Table 1 of the proposed rule which identifies the
regulated process equipment. The commenter stated that the table should
be titled ``Emissions Sources'' instead of ``Emissions Points''; the
``filter for sodium chromate slurry'' should be changed to ``residue
dryer system''; the ``reactor used to produce chromic acid'' should be
changed to the ``melter used to produce chromic acid''; and the
``sodium dichromate evaporation unit'' should be removed from the table
because there are no chromium emissions from this unit at either plant.
    Response: We agree that the table is a listing of emission
``sources'', and we will clarify that the production of chromic acid
occurs in a ``melter.'' We also agree that we inadvertently included
the filter for sodium chromate slurry, which is not an emissions
source, and should have included instead the residue dryer system,
which is an emissions source. We identified the sodium dichromate
evaporation unit as a process at the chromium compound manufacturing
plants. However, this process operates under a vacuum to reduce the
water content at temperatures far below the temperatures that would be
needed to volatilize chromium compounds in the wet slurry into PM. This
process is not an emissions source for PM and was therefore not
identified in the title V permit as an emission source. Consequently,
we are deleting the sodium dichromate evaporation unit from the table
of emissions sources.
    Comment: One commenter noted that the General Provisions table in
the NESHAP should be revised to eliminate duplication of entries for
Sec.  63.10(e)(1) and (e)(2).
    Response: We agree and have corrected the table to eliminate the
duplication.

E. Proposed NESHAP for Flexible Polyurethane Foam Production and
Fabrication Area Sources

    Comment: One commenter stated that one HAP emitted by flexible
polyurethane foam production and fabrication facilities is methylene
chloride. According to the commenter, EPA indicated in the preamble
that methylene chloride is used by stabstock foam plants as an ABA and
an equipment cleaner, and that molded and rebond foam plants use
methylene chloride as a mold release agent and an equipment cleaner.
The commenter noted that for slabstock foam plants EPA

proposed either to prohibit the use of methylene chloride or to
establish certain requirements for its use.
    The commenter asserted that EPA must prohibit the use of methylene
chloride at slabstock facilities based on the following statement from
the proposal preamble: ``[b]ased on recent contacts with the industry,
we have verified that every known slabstock facility has converted
their process to use a non-HAP technology (72 FR 16649).'' The
commenter stated that EPA's failure to require the use of non-HAP
technology it acknowledges to be GACT is unlawful and arbitrary. Also
arbitrary, according to the commenter, is the Agency's failure to
explain its decision to allow facilities to continue to use methylene
chloride with various control requirements, given its own conclusion
that a ban on the use of methylene chloride is GACT.
    Response: The proposed regulation addressed eight different types
of situations where methylene chloride could potentially be used at
flexible polyurethane foam production and flexible polyurethane foam
fabrication facilities. For seven of these potential use situations,
the proposed rule prohibited the use of methylene chloride. The lone
situation where the proposed rule did not prohibit the use of methylene
chloride was as an ABA in the production of slabstock flexible
polyurethane foam.
    By only selecting a portion of the language from the preamble
related to the determination of GACT for methylene chloride usage as an
ABA at slabstock facilities and presenting it out of context, the
commenter has misrepresented EPA's rationale in the proposal preamble.
The entire discussion, from which the commenter quoted selectively, is
as follows:

    The NESHAP requirements, along with the revisions to the
Occupational Safety and Health Administration (OSHA) permissible
exposure and short-term exposure limits for methylene chloride (63
FR 50711, September 22, 1998), caused slabstock foam facilities to
investigate, evaluate, and install technologies to reduce or
eliminate the use of methylene chloride as an ABA at their
facilities. These technologies include alternative formulations to
reduce the amount of methylene chloride ABA needed, alternative non-
HAP ABAs (acetone, liquid carbon dioxide), controlled or variable
pressure foaming, and forced cooling. Based on recent contacts with
the industry, we have verified that every known slabstock facility
has converted their process to utilize one of these technologies * *
*. Consequently, we propose to conclude that emissions limitations
based on the application of these technologies are generally
available (GACT) for new and existing sources.

See 72 FR 16649, April 4, 2007.
    As explained in the proposal, we determined that some of the
technologies listed could result in the complete elimination of the use
of methylene chloride as an ABA. However, we also discussed alternative
formulations that reduce, but do not eliminate, the amount of methylene
chloride ABA needed in the list of generally available control
measures. Alternative formulations can include, among other things,
chemical additives and alternative polyols. These measures ``reduce''
the use of methylene chloride as an ABA without eliminating it. In
fact, a specific relevant example of these technologies was provided by
a slabstock flexible polyurethane foam production facility that
commented on the proposal. This commenter reports that their facility
has reduced methylene chloride emissions by 77 percent through the
reformulation of foam grades and marketing to encourage customers to
switch to foam grades that the commenter's company can produce without
methylene chloride. This is a clear example of the ``alternative
formulations'' referred to in the proposal preamble as one of the
technologies we determined to be GACT. Therefore, we reject the
commenter's assertion that we concluded that GACT was a ban on the use
of methylene chloride as an ABA and did not make any revisions in the
final rule as a result of this comment.
    Comment: One commenter opposed the proposal to prohibit all use of
methylene chloride-based adhesives. The commenter stated that there may
be certain applications where adhesives based on methylene chloride
provide superior performance and can be used in compliance with
Occupational Safety and Health Administration (OSHA) worker exposure
limits. The commenter only mentions loop slitter operations.
    Response: In our proposal, we specifically requested comments on
``whether and under what circumstances methylene-chloride based
adhesives (e.g., in small specialty applications) are being used or
might be used by the foam fabrication industry, and what quantities are
or might be involved in such applications'' (72 FR 16649) (emphasis
added). The commenter's general assertion that there may be
applications where methylene chloride-based adhesives provide superior
performance is not responsive to our request for comments. As for loop
slitters, we found at proposal that the industry has discontinued the
use of methylene chloride-based adhesives, and we concluded at proposal
that GACT was the prohibition of the use of such adhesives for loop
slitter operations. At this time, we are not aware of any specific
applications where methylene chloride adhesives provide performance
that cannot be achieved by alternative adhesives and where they can be
used in compliance with OSHA worker exposure limits. Consequently, the
final rule retains the prohibition of the use of methylene chloride
adhesives in flexible polyurethane foam fabrication operations.
    Comment: One commenter indicated that a less burdensome program
should be provided for flexible polyurethane foam producers that
utilize methylene chloride as an ABA. This commenter's company is a
small business that employs less than 100 people. They operate one
facility that produces and fabricates flexible polyurethane foam. The
commenter pointed out that their facility produces thousands of pounds
of flexible polyurethane foam per month, while typical facilities
throughout the country produce millions of pounds per month.
    The commenter provided information on the numerous improvements
that have been made at this facility to reduce methylene chloride usage
and emissions. They have eliminated all uses of methylene chloride
except as an ABA, and have made significant reductions (over 75
percent) in its usage as an ABA.
    The commenter indicated that this facility has a federally
enforceable synthetic minor permit which caps methylene chloride
emissions on a monthly and 12-month rolling basis. The permit also
incorporates many of the monitoring and recordkeeping requirements of
the foam production MACT rule.
    The commenter suggested that, for this facility, the proposed rule
is unnecessarily complicated in view of the environmental benefits
realized by the programs already in place. The commenter suggested
several amendments to the rule to reduce the burden. In general, the
commenter requested that the methylene chloride ABA emissions caps and
the monitoring and reporting provisions in their permit be provided as
an acceptable option for meeting the requirements of the area source
rule for slabstock foam production.
    The commenter cited numerous areas where capital expenditures would
be necessary to comply with the proposed rule including the purchase of
control equipment (storage tank vapor balance line), computer software,
IFD and density testing equipment, and meter calibration equipment. The
commenter

noted that the initial investment would also include costs for computer
program development and operator training. The commenter estimated that
the total initial capital costs would range from $25,000 to $35,000.
The commenter also stated that the proposed rule would result in
increased annual costs of between $28,000 and $45,000 for testing,
training, calibrations, maintenance, tracking, recordkeeping and data
entry, and reporting.
    Response: The proposed rule included an emissions limitation format
for the use of methylene chloride as an ABA, along with associated
monitoring, recordkeeping, and reporting provisions, that allows
flexibility in how sources choose to comply (for example, individual
emissions point requirements versus a source-wide overall limit,
monthly compliance versus 12-month rolling average). We believe that
this flexibility outweighs any perceived complexity of the format of
the emissions limitation and the monitoring and recordkeeping
requirements, and we do not believe that the costs of these
requirements are inappropriate for this category. Therefore, we did not
make any changes to the proposed rule in response to these comments.
    Comment: This same commenter stated that the compliance date of the
proposed rule for slabstock flexible polyurethane foam production
sources (the date of publication of the final rule) is not reasonable
since the final rule will result in the need for equipment, operating,
monitoring, and administrative changes.
    Response: The commenter cited numerous areas where capital
expenditures would be necessary to comply with the proposed rule
including the purchase of control equipment (storage tank vapor balance
line), computer software, IFD and density testing equipment, and meter
calibration equipment. The commenter also indicated that computer
program development will be necessary and operators will need to be
trained. Given the changes that will be necessary to comply with the
final rule, we agree that it is reasonable to extend the compliance
date for existing sources. Therefore, the final rule has a compliance
date for slabstock foam affected sources electing to continue to
utilize methylene chloride as an ABA to 1 year from the date of
publication of the final rule.
    Comment: One commenter did not understand how facilities that do
not release a HAP, specifically methylene chloride, could be subject to
the NESHAP for flexible polyurethane foam production and fabrication.
In support, the commenter recited the definition of an area source as
``any stationary source of hazardous air pollutants that is not a major
source * * *.'' The commenter believed the proposed rule conflicts with
the definition of an area source because the proposed NESHAP has
specific requirements for facilities that do not release any HAP. The
commenter asked how this is possible.
    Response: The first paragraph of the proposed rule, Sec.
63.11414(a), states ``You are subject to this subpart if you own or
operate an area source of hazardous air pollutant (HAP) emissions that
meets the criteria in paragraph (a)(1) or (2) of this section.''
Facilities that are not sources of any hazardous air pollutants,
including methylene chloride, are not subject to the rule. Therefore,
the comment that ``the proposed NESHAP has specific requirements for
facilities that do not release any HAP'' is incorrect.

F. Proposed NESHAP for Lead Acid Battery Manufacturing Area Sources

    Comment: One commenter stated that EPA's proposed GACT
determination for battery manufacturers does not satisfy section
112(d)(5). The commenter claimed that rather than evaluating the
potential reduction measures that are commercially available and
appropriate for application by battery manufacturers, EPA considered
only one option: requiring all sources to comply with the 1982 NSPS for
PM, with which 53 out of 58 sources are already in compliance anyway.
The commenter stated that section 112(d)(5) requires the use of
``methods, practices and techniques'' which are commercially available
and appropriate for application by the sources in the category
considering economic impacts.'' The commenter said that there are
``methods, practices, and techniques'' that are commercially available
and appropriate for application by battery manufacturers. The commenter
specifically cited a 1998 EPA report that specifies a 2:1 air to cloth
ratio as the ``[g]enerally safe design level'' for lead oxide in
ordinary baghouses. With respect to processes currently controlled with
fabric filters, the commenter stated that there are more effective
fabric filters, and with respect to processes currently controlled by
impingement scrubbers, there are fabric filters or more effective
scrubbers (e.g. venturi scrubbers). According to the commenter, EPA has
not required GACT standards that reflect the use of these technologies,
nor even considered doing so. The commenter concluded that EPA's rule
contravenes section 112(d)(5).
    The commenter also stated that EPA's rule is arbitrary and that EPA
provided no rationale for failing to consider methods, practices and
techniques that are commercially available and would reduce battery
manufacturers' emissions significantly. The commenter stated that EPA
does not claim that more efficient control measures are not
commercially available for any of the relevant processes, nor does the
Agency claim that they are too costly. In particular, according to the
commenter, EPA does not even say what the cost for more efficient
technologies would be or why it thinks they might be too costly. The
commenter stated that EPA failed to consider any approach other than
using the 1982 NSPS without providing any explanation for its choice.
The commenter stated that it appears EPA's only consideration was
whether the 1982 NSPS might be too stringent to be GACT, and EPA did
not entertain the possibility that more protective standards might be
achievable through the use of generally available measures. According
to the commenter, EPA's rule is not only arbitrary but unlawful in that
it reflects a complete abrogation of the EPA's statutory duty to
evaluate currently available control measures and set standards that
reflect them.
    Response: Section 112(d)(5) authorizes the Administrator to ``elect
to promulgate standards or requirements applicable to sources in such
[area source] categories or subcategories which provide for the use of
generally available control technologies or management practices [GACT]
by such sources to reduce emissions of hazardous air pollutants.'' As
we discussed earlier, in determining GACT for area sources, we examine
the demonstrated and generally available controls at area sources in
the source category. See 72 FR 16638, April 4, 2007. We also consider
the standards applicable to major sources in the category and determine
if those controls are generally available and transferable to area
sources. See 72 FR 16638, April 4, 2007. In addition, in appropriate
circumstances, we may consider technologies employed by sources in
similar industrial categories. See 72 FR 16638, April 4, 2007. We also
consider cost and economic impacts of generally available control
technologies or management practices on a source category in
determining GACT. See 72 FR 16638, April 4, 2007.
    For the lead acid battery area sources, at proposal, we considered
the controls and technologies employed by the area sources in the
category. We found that

the smallest sources in this category were not subject to the lead acid
battery NSPS. We also found that there are approximately 60 known area
sources in this category and no known major sources. We concluded that
the requirements of the NSPS represented generally available control
technologies or management practices for this source category.
Moreover, although not stated in the proposal, because of the large
number of area sources in this category, we concluded that we did not
need to look at sources in similar industrial categories for
determining what is generally available to the lead acid battery
manufacturing category.
    At proposal, we found that the NSPS addressed lead (not PM)
emissions from six types of processes at lead acid battery
manufacturing plants: (1) Grid casting, (2) paste mixing, (3) three-
process operations, (4) lead oxide manufacturing, (5) lead reclamation,
and (6) other lead emitting processes. The commenter stated that more
effective ``methods, practices, and techniques'' including fabric
filters with air to cloth ratios between 2:1 and 3.5:1 (and
specifically 2:1 for lead oxide) are available, and cited this as
evidence that significant advancements in technology have occurred
since the NSPS was promulgated in 1982. The 1998 EPA report that the
commenter cited indicates that the generally safe design level for lead
oxide in ordinary baghouses is, in fact, the same 2:1 air to cloth
ratio required in the NSPS standard for lead oxide manufacturing, which
is incorporated into this rule. Thus, contrary to the commenter's
assertion, the emission limitations in the NSPS were in this case based
on the specific technology addressed by the commenter and that
technology is considered state-of-the-art today.
    The commenter assumed that the category's current lead emissions
reflect a 98 percent reduction from uncontrolled emissions, and
suggested that substantial emissions reductions would be obtained
through setting new standards that reflect a 99.9 percent reduction. We
are unsure on what the commenter based this assertion. For fabric
filters with a 6:1 air to cloth ratio in the NSPS, which is the control
basis for the standards for paste mixing, three-process operations, and
other lead emitting processes in this rule, we attributed 99 percent
lead emissions reduction. We attributed a 90 percent lead removal
efficiency for impingement scrubbers, the control basis for the
standards for the grid casting and lead reclamation processes.
Therefore, while there would be an incremental reduction in emissions
if technologies that achieve 99.9 percent lead emission reduction were
required by this area source NESHAP, the reductions would not be as
substantial as predicted by the commenter.
    We did not discuss the costs of imposing additional control
requirements on this category at proposal, but we do so here in
response to this comment. We estimate that the total capital investment
for a typical plant to upgrade to 99.9 percent controls could range
from more than $600,000 to almost $1.7 million, depending on the
technologies selected. We estimate annual costs of this additional
control for a typical plant would be around $1.2 million per year due
to increased operator labor costs, maintenance labor and material
costs, electricity and other utility costs, taxes and insurance, and
capital recovery costs. This cost represents almost 5 percent of the
total shipments for an average lead acid battery establishment. We do
not believe that these costs and potential economic impacts are
appropriate for application by the area sources in this category. The
costs incurred per ton of lead emissions reduced would be around
$450,000 to $500,000 based on replacing existing control devices or
installing additional devices to increase control efficiency up to 99.9
percent.
    In conclusion, we believe that the technologies upon which the
proposed standards were based are generally available to this industry.
Moreover, we believe that the costs of requiring every area source lead
acid battery facility to install technologies that achieve additional
incremental emission reductions, beyond those established in these
NESHAP, would be prohibitive. Thus, we have not revised the emission
standards in the rule in response to this comment.
    Comment: One commenter stated that in addition to emitting more
than 26 tpy of lead, lead acid battery manufacturers emit more than 47
tpy of other HAP; among these are HAP that are not metals, do not
behave like PM in the stack gas, and therefore cannot be captured or
reduced through the use of PM control devices. According to the
commenter, section 112(d) requires emission standards for each HAP
listed in section 112(b). Assuming that the Agency does not have to set
separate standards for each HAP when issuing standards under section
112(d)(5), the commenter stated that EPA still has an obligation to
address all of the HAP that a category emits when setting GACT
standards. The commenter claimed that EPA has an obligation to address
the HAP emitted by battery manufacturing plants that are not captured
by PM control devices, and the failure to do so was unlawful. The
commenter also stated that the failure to consider the HAP that are not
emitted as PM and to explain why they were not addressed is arbitrary
and capricious.
    Response: Section 112(k)(3)(B) of the CAA requires EPA to identify
at least 30 HAP emitted from area sources that pose the greatest threat
to public health in the largest number of urban areas (the ``Urban
HAP'') and identify the area source categories that will be listed
pursuant to section 112(c)(3). Section 112(c)(3), in relevant part,
provides:

    The Administrator shall, * * * , and pursuant to subsection
(k)(3)(B) of this section, list, based on actual or estimated
aggregate emissions of a listed pollutant or pollutants, sufficient
categories or subcategories of area sources to ensure that area
sources representing 90 percent of the area source emissions of the
30 hazardous air pollutants that present the greatest threat to
public health in the largest number of urban areas are subject to
regulation under this section.

    Thus, section 112(c)(3) requires EPA to list sufficient categories
or subcategories of area sources to ensure that area sources
representing 90 percent of the emissions of the 30 Urban HAP are
subject to regulation.
    Section 112(d)(1) requires the Administrator to promulgate
regulations establishing emissions standards for each area source of
HAP listed for regulation pursuant to section 112(c). EPA identified
the 30 Urban HAP that pose the greatest threat to public health in the
Integrated Urban Air Toxics Strategy. In that same document, EPA listed
the source categories that account for 90 percent of the Urban HAP
emissions.
    We have interpreted the above provisions of section 112 to require
EPA to regulate only those Urban HAP emissions for which an area source
category is listed pursuant to section 112(c)(3). As stated elsewhere
in this preamble, Congress chose to treat areas sources differently
from major sources under section 112 and other sections of the CAA,
such as title V. Under section 112, Congress determined that the Agency
should identify 30 HAP emitted from area sources that posed the
greatest threat to public health in the largest number of urban areas.
The statute then directs the Agency to list sufficient area source
categories to account for 90 percent of the emissions of each Urban HAP
and to subject those listed source categories to regulation. Section
112(d)(1) requires emissions standards for area sources of HAP ``listed
pursuant to subsection (c)''. Area sources listed pursuant to
subsection (c)(3) are listed

only because they emit one of the 30 listed Urban HAP and the Agency
has identified the category as one that will ensure that we satisfy the
requirement to subject area sources representing 90 percent of the area
source emissions of the 30 Urban HAP to regulation.
    Moreover, section 112(c)(3) explicitly refers to section
112(k)(3)(B). Section 112(k)(3)(B) addresses the national strategy to
control HAP from area sources in urban areas. The focus of the strategy
is on the 30 HAP that pose the greatest threat to public health in the
largest number of urban areas. As noted above, in 1999, EPA issued the
Integrated Air Toxics Strategy in response to section 112(k)(3)(B). In
that strategy, we identified the 30 Urban HAP, which are the HAP that
pose the greatest threat to public health in the largest number of
urban areas, and we identified, consistent with section 112(c)(3), the
area source categories that account for 90 percent of those Urban HAP.
    Pursuant to sections 112(c)(3) and 112(k)(3)(B), the Lead Acid
Battery Manufacturing area source category was listed due to emissions
of two specific pollutants: lead and cadmium. We recognize that other
HAP, including Urban HAP which did not form the basis of the section
112(c)(3) listing decision, may be emitted from lead acid battery
manufacturing facilities. To the extent that the other HAP are Urban
HAP, we identified other area source categories that emit those Urban
HAP in higher amounts and have determined that subjecting other area
source categories to regulation for these HAP will achieve the 90
percent requirement in the CAA. In conclusion, consistent with section
112, we are not obligated to address HAP other than Urban HAP for which
this area source category was listed pursuant to section 112(c)(3),
which, as noted above, are lead and cadmium.
    Comment: One commenter requested clarification of the dates for
compliance compared to the key NESHAP General Provisions for existing
sources. The commenter explained that in Sec.  63.9(b) of the General
Provisions and based on communications with EPA, initial notification
by existing facilities is due 120 calendar days after final rule
publication. According to the commenter, the proposed compliance date
provision in Sec.  63.11422 could be read to suggest notification is
not due for a year. The commenter found similar confusion between Sec.
63.9(h) and Sec.  63.11422 pertaining to notices of compliance from
existing sources. The commenter suggested the following clarification
language:

    Note: Initial notification by existing facilities, required by
Sec.  63.9(b), is due within 120 calendar days after the date of
publication of the final rule in the Federal Register. Notices of
compliance by existing facilities, required by Sec.  63.9(h), is due
on the 60th day following the 1 year deadline for compliance with
the new standard.

    Response: We agree that the timing for notifications should be
clarified, and we have made the suggested clarifications in the final
rule.

G. Proposed NESHAP for Wood Preserving Area Sources

    Comment: Eight commenters questioned the need for the standards and
stated there is no need to regulate wood preserving area sources. The
commenters further stated that the wood preserving industry is an
insignificant source of the four HAP to be regulated by this proposed
standard. According to the commenters, the industry has not used
methylene chloride in the wood treating process since 1992, and
emissions of the three other HAP covered in this rule are negligible
according to the commenters. Moreover, the commenters claimed that EPA
was unable to identify ``any other management practices or control
technologies that would provide additional emissions reductions in a
cost effective manner.''
    Response: The emission levels used for the Integrated Urban Air
Toxics Strategy were based on the section 112(k) 1990 inventory.
Following issuance of the Integrated Urban Air Toxics Strategy in 1999,
EPA revised the area source category listing in the Strategy to also
include the wood preserving area source category (67 FR 70428, November
22, 2002). We also recognize that the wood preserving industry has
changed over the past 15 years and Urban HAP emissions have been
reduced. The regulations being finalized today will ensure that future
emissions from wood preserving operations will be limited to the same
level that is being generally achieved today and was determined to be
GACT. Without such regulations, there is nothing that would limit
future Urban HAP emissions from a new process or wood preservative.
    Comment: Eight commenters requested clarification regarding non-
applicable preservative chemistries. The commenters asserted that as
currently worded, the provision in Sec.  63.11428(a) would seem to
encompass any wood preserving operation, including those that treat
household commodities with ammoniacal copper quat (ACQ) or copper azole
(CA)--waterborne, copper-based preservatives that do not contain
chromium, arsenic, dioxins, or methylene chloride. The commenters
understood that EPA did not intend to regulate wood preservatives that
do not contain the Urban HAPs for which the wood preserving category
was listed. Accordingly, the commenters requested that EPA revise Sec.
63.11428(a) to clarify, as it does in Sec.  63.11430 and in the
preamble to the proposed rule, that the wood preserving area source
standard applies only to facilities ``using a treatment process with
any wood preservatives containing chromium, arsenic, dioxins, or
methylene chloride.''
    Response: The applicability of the wood preserving area source rule
(as described in Sec.  63.11428(a)) includes any wood preserving
operation located at an area source. However, only those facilities
that are using a wood preservative containing chromium, arsenic,
dioxins, or methylene chloride are subject to the management practice
requirements in Sec.  63.11430 and the other requirements in Sec.
63.11432. Additional language was added to Sec.  63.11430(c) and Sec.
63.11432 to clarify that only those area source facilities using any
wood preservative containing chromium, arsenic, dioxins, or methylene
chloride have to prepare and operate according to a management practice
plan to minimize air emissions, and comply with the initial
notification and reporting requirements. If your area source wood
preserving facility is only using preservatives such as ACQ or CA, then
you are not subject to the requirements in Sec. Sec.  63.11430 and
63.11432.
    Comment: Several commenters requested that EPA provide flexibility
in the interpretation of the term ``fully drain'' as that term is used
in Sec.  63.11430(c)(6): ``For the pressure treatment process, fully
drain the retort prior to opening the retort door.'' The commenters
stated that as a practical matter, it is not possible to ``fully
drain'' 100 percent of all residual preservative before a retort door
is opened and that the quantity of material involved is small. The
commenters requested confirmation that the trace amount of residual
preservative which may remain in the cylinder when the retort door is
opened does not violate the Sec.  63.11430(c)(6) requirement to ``fully
drain'' the retort before opening the door, and that the language in
Sec.  63.11430(c)(6) be amended to read ``For the pressure treatment
process, fully drain the retort to the extent practical, prior to
opening the retort door.''
    Response: We agree with the commenters and have made the

following change to Sec.  63.11430(c)(6) in the final standards: ``For
the pressure treatment process, fully drain the retort to the extent
practicable, prior to opening the retort door.'' An example of what is
practicable for fully draining the retort would be a retort operation
where any residual preservative drips into the door pit sump.

H. Proposed Exemption of Certain Area Source Categories from Title V
Permitting Requirements

    Comment: One commenter believed that EPA's proposal to exempt four
of the five area source categories addressed in its proposal (acrylic
and modacrylic fibers production, flexible polyurethane foam production
and fabrication, lead acid battery manufacturing, and wood preserving)
from title V permitting requirements is unlawful and arbitrary. In
support of this assertion, the commenter cited CAA section 502(a),
which provides that EPA may exempt area source categories from title V
permitting requirements if compliance with such requirements is
``impracticable, infeasible or unnecessarily burdensome.'' See 42
U.S.C. 7661a(a). The commenter stated that EPA does not claim that such
requirements are impracticable or infeasible for any of the four area
source categories it proposes to exempt, but rather relies entirely on
its claim that they would be ``unnecessarily burdensome.''
    Response: Section 502(a) of the CAA states, in relevant part, that:

    * * * [t]he Administrator may, in the Administrator's discretion
and consistent with the applicable provisions of this chapter,
promulgate regulations to exempt one or more source categories (in
whole or in part) from the requirements of this subsection if the
Administrator finds that compliance with such requirements is
impracticable, infeasible, or unnecessarily burdensome on such
categories, except that the Administrator may not exempt any major
source from such regulations. 42 U.S.C. 7661a(a).

    The statute plainly vests the Administrator with discretion to
determine when it is appropriate to exempt non-major (i.e. area)
sources of air pollution from the requirements of title V. The
commenter correctly notes that EPA based the proposed exemptions solely
on a determination that title V is ``unnecessarily burdensome,'' and
did not rely on whether the requirements of title V are
``impracticable'' or ``infeasible'', which are alternative bases for
exempting area sources from title V.
    To the extent the commenter is asserting that EPA must determine
that all three criteria in CAA section 502 are met before an area
source category can be exempted from title V, the commenter misreads
the statute. The statute expressly provides that EPA may exempt an area
source category from title V requirements if EPA determines that the
requirements are ``impracticable, infeasible or unnecessarily
burdensome.'' See CAA section 502 (emphasis added). If Congress had
wanted to require that all three criteria be met before a category
could be exempted from title V, it would have stated so by using the
word ``and,'' in place of ``or''.
    Comment: One commenter stated that in order to demonstrate that
compliance with title V would be ``unnecessarily burdensome,'' EPA must
show, among other things, that the ``burden'' of compliance is
unnecessary. According to the commenter, by promulgating title V,
Congress indicated that it viewed the burden imposed by its
requirements as necessary as a general rule. The commenter maintained
that the title V requirements provide many benefits that Congress
viewed as necessary. Thus, in the commenter's view, EPA must show why
for any given category, special circumstances make compliance
unnecessary. The commenter believed that EPA has not made that showing
for any of the categories it proposes to exempt.
    Response: EPA does not agree with the commenter's characterization
of the demonstration required for determining that title V is
unnecessarily burdensome for an area source category. As stated above,
the CAA provides the Administrator discretion to exempt an area source
category from title V if he determines that compliance with title V
requirements is ``impracticable, infeasible, or unnecessarily
burdensome'' on an area source category. See CAA section 502(a). In
December 2005, in a national rulemaking, EPA interpreted the term
``unnecessarily burdensome'' in CAA section 502 and developed a four-
factor balancing test for determining whether title V is unnecessarily
burdensome for a particular area source category, such that an
exemption from title V is appropriate. See 70 FR 75320, December 19,
2005 (``Exemption Rule''). In addition to interpreting the term
``unnecessarily burdensome'' and developing the four-factor balancing
test in the Exemption Rule, EPA applied the test to certain area source
categories.
    The four factors that EPA identified in the Exemption Rule for
determining whether title V is unnecessarily burdensome on a particular
area source category include: (1) Whether title V would result in
significant improvements to the compliance requirements, including
monitoring, recordkeeping, and reporting, that are proposed for an area
source category (70 FR 75323); (2) whether title V permitting would
impose significant burdens on the area source category and whether the
burdens would be aggravated by any difficulty the sources may have in
obtaining assistance from permitting agencies (70 FR 75324); (3)
whether the costs of title V permitting for the area source category
would be justified, taking into consideration any potential gains in
compliance likely to occur for such sources (70 FR 75325); and (4)
whether there are implementation and enforcement programs in place that
are sufficient to assure compliance with the NESHAP for the area source
category, without relying on title V permits (70 FR 75326).
    In discussing the above factors in the Exemption Rule, we explained
that we considered on ``a case-by-case basis the extent to which one or
more of the four factors supported title V exemptions for a given
source category, and then we assessed whether considered together those
factors demonstrated that compliance with title V requirements would be
`unnecessarily burdensome' on the category, consistent with section
502(a) of the Act.'' See 70 FR 75323. Thus, we concluded that not all
of the four factors must weigh in favor of exemption for EPA to
determine that title V is unnecessarily burdensome for a particular
area source category. Instead, the factors are to be considered in
combination and EPA determines whether the factors, taken together,
support an exemption from title V for a particular source category.
    The commenter asserts that ``EPA must show * * * that the
``burden'' of compliance is unnecessary.'' This is not, however, one of
the four factors that we developed in the Exemption Rule in
interpreting the term ``unnecessarily burdensome'' in CAA section 502,
but rather a new test that the commenter maintains EPA ``must'' meet in
determining what is ``unnecessarily burdensome'' under CAA section 502.
EPA did not re-open its interpretation of the term ``unnecessarily
burdensome'' in CAA section 502 in the April 6, 2007 proposed rule for
the categories at issue in this rule. Rather, we applied the four-
factor balancing test articulated in the Exemption Rule to the source
categories for which we proposed title V exemptions. Had we sought to
re-open our interpretation of the term ``unnecessarily burdensome'' in
CAA section 502 and modify it from what was articulated in the
Exemption Rule,

we would have stated so in the April 6, 2007 proposed rule and
solicited comments on a revised interpretation, which we did not do.
Accordingly, we reject the commenter's attempt to create a new test for
determining what constitutes ``unnecessarily burdensome'' under CAA
section 502, as that issue falls outside the purview of this
rulemaking.\11\
---------------------------------------------------------------------------

    \11\ If the commenter objected to our interpretation of the term
``unnecessarily burdensome'' in the Exemption Rule, it should have
commented on, and challenged, that rule. Any challenge to the
Exemption Rule is now time barred by CAA section 307(b). Although we
received comments on the title V Exemption Rule during the
rulemaking process, no one sought judicial review of that rule.
---------------------------------------------------------------------------

    Moreover, even were the comment framed as a request to re-open our
interpretation of the term ``unnecessarily burdensome'' in CAA section
502, which it is not, we would deny such request because we have a
court-ordered deadline to complete this rulemaking by June 15, 2007,
and we are not in a position to expand the scope of the rulemaking at
this juncture. In any event, we believe that the commenter's position
that ``EPA must show * * * that the ``burden'' of compliance is
unnecessary'' is unreasonable and contrary to Congressional intent
concerning the applicability of title V to area sources. Congress
intended to treat area sources differently under title V as it
expressly authorized the EPA Administrator to exempt such sources from
the requirements of title V at his discretion. There are several
instances throughout the CAA where Congress chose to treat major
sources differently than non-major sources, as it did in section
502.\12\ In addition, it is worth noting that although the commenter
espouses a new interpretation of the term ``unnecessarily burdensome''
in CAA section 502 and attempts to create a new test for determining
whether the requirements of title V are ``unnecessarily burdensome''
for an area source category, the commenter does not explain why EPA's
interpretation of the term ``unnecessarily burdensome'' is arbitrary,
capricious or otherwise not in accordance with law. We maintain that
our interpretation of the term ``unnecessarily burdensome'' in section
502, as set forth in the Exemption Rule, is reasonable.
---------------------------------------------------------------------------

    \12\ See, e.g., section 112(d)(5) (authorizing generally
available control technologies or management practices in lieu of
maximum achievable control technology standards for area sources);
section 112(f)(5) (exempting area sources regulated under section
112(d)(5) from the 8-year residual risk review requirement);
Compare, section 110(a)(2)(c) (requiring minor source permitting
program without a detailed statutory structure) with section 165
(providing detailed permitting requirements for major sources
locating in prevention of significant deterioration areas).
---------------------------------------------------------------------------

    Finally, in this rule, we appropriately applied the four-factor
balancing test set forth in the Exemption Rule to the particular area
source categories at issue in this rule. In response to comments, we
provide above a more detailed discussion of our consideration of the
four factors for the source categories at issue. Based on our
consideration of the four factors, we are taking final action to
finalize the exemptions from title V for the acrylic and modacrylic
fibers production, flexible polyurethane foam production and
fabrication, lead acid battery manufacturing, and wood preserving
categories.\13\
---------------------------------------------------------------------------

    \13\ In the Exemption Rule, in addition to determining whether
compliance with title V requirements would be unnecessarily
burdensome on an area source category, we considered, consistent
with the guidance provided by the legislative history of section
502(a), whether exempting the area source category would adversely
affect public health, welfare or the environment. See 72 FR 15254-
15255, March 25, 2005. As shown above, after conducting the four-
factor balancing test and determining that title V requirements
would be unnecessarily burdensome on the area source categories at
issue here, we examined whether the exemption from title V would
adversely affect public health, welfare and the environment, and
found that it would not.
---------------------------------------------------------------------------

    Comment: One commenter stated that exempting a source category from
title V permitting requirements deprives both the public generally and
individual members of the public who would obtain and use permitting
information from the benefit of citizen oversight and enforcement that
Congress plainly viewed as necessary. According to the commenter, the
text and legislative history of the CAA provide that Congress intended
ordinary citizens to be able to get emissions and compliance
information about air toxics sources and to be able to use that
information in enforcement actions and in public policy decisions on a
State and local level. The commenter stated that Congress did not think
that enforcement by States or other government entities was enough; if
it had, Congress would not have enacted the citizen suit provisions,
and the legislative history of the CAA would not show that Congress
viewed citizens' access to information and ability to enforce CAA
requirements as highly important both as an individual right and as a
crucial means to ensuring compliance. According to the commenter, if a
source does not have a title V permit, it is difficult or impossible--
depending on the laws, regulations and practices of the State in which
the source operates--for a member of the public to obtain relevant
information about its emissions and compliance status. The commenter
stated that likewise, it is difficult or impossible for citizens to
bring enforcement actions. The commenter continued that EPA does not
claim--far less demonstrate with substantial evidence, as would be
required--that citizens would have the same ability to obtain
compliance and emissions information about sources in the categories it
proposes to exempt without title V permits. The commenter also said
that likewise, EPA does not claim--far less demonstrate with
substantial evidence--that citizens would have the same enforcement
ability. Thus, according to the commenter, the exemptions EPA proposes
plainly eliminate benefits that Congress thought necessary. The
commenter claimed that to justify its exemptions, EPA would have to
show that the informational and enforcement benefits that Congress
intended title V to confer--benefits which the commenter argues are
eliminated by the exemptions--are for some reason unnecessary with
respect to the categories it proposes to exempt. The commenter
concluded that EPA does not acknowledge these benefits or explain why
they are unnecessary, and that for this reason alone, EPA's proposed
exemptions are unlawful and arbitrary.
    Response: Once again, the commenter attempts to create a new test
for determining whether the requirements of title V are ``unnecessarily
burdensome'' on an area source category. Specifically, the commenter
argues that EPA does not claim or demonstrate with substantial evidence
that citizens would have the same access to information and the same
ability to enforce under these NESHAP, absent title V. The commenter's
position represents a significant revision of the fourth factor that
EPA developed in the Exemption Rule in interpreting the term
``unnecessarily burdensome'' in CAA section 502. For all of the reasons
explained above, the commenter's attempt to create a new test for EPA
to meet in determining whether title V is ``unnecessarily burdensome''
on an area source category cannot be sustained. This rulemaking did not
re-open EPA's interpretation of the term ``unnecessarily burdensome''
in CAA section 502. Because the commenter's statements do not
demonstrate a flaw in EPA's application of the four-factor balancing
test to the specific facts of the source categories at issue here,
which is the sole title V issue in this rulemaking, the comments
provide no basis for the Agency to reconsider its proposal to exempt
the area source categories from title V. Today, we finalize the

exemptions proposed in the April 6, 2007 rule.
    Moreover, as explained in the proposal and above, we considered
implementation and enforcement issues in the fourth factor of the four-
factor balancing test. Specifically, the fourth factor of EPA's
unnecessarily burdensome analysis provides that EPA will consider
whether there are implementation and enforcement programs in place that
are sufficient to assure compliance with the NESHAP without relying on
title V permits. See 70 FR 75326. In applying the fourth factor in the
Exemption Rule, where EPA had deferred action on the title V exemption
for several years, we had enforcement data available to demonstrate
that States were not only enforcing the provisions of the area source
NESHAP that we exempted, but that the States were also providing
compliance assistance to ensure that the area sources were in the best
position to comply with the NESHAP. See 70 FR 75325-75326. Nowhere in
the Exemption Rule did the Agency state that we had to demonstrate that
citizen enforcement would be identical absent title V before an area
source category could be exempted from title V.
    In applying the fourth factor here, EPA determined that there are
adequate enforcement programs in place to assure compliance with the
CAA. We do not have enforcement data available because we are only
today finalizing the NESHAP at issue here. As stated in the proposal,
however, States with delegated programs have enforcement and compliance
assistance and implementation programs in place to enforce the
provisions of these NESHAP. See 72 FR 16656. In fact, a State must have
adequate programs to enforce the HAP regulations and provide assurances
that it will enforce all NESHAP before EPA will delegate the program.
See 40 CFR part 63, subpart E. The commenter does not challenge the
conclusion that there are adequate State and Federal programs in place
to enforce the NESHAP. Instead, the commenter provides an
unsubstantiated assertion that information about compliance by the area
sources with these NESHAP will not be as accessible to the public as
information provided to a State pursuant to title V. In fact, the
commenter does not provide any information that States will treat
information submitted under these NESHAP differently than information
submitted pursuant to a title V permit.
    Even accepting the commenter's assertions that it is more difficult
for citizens to enforce the NESHAP absent a title V permit, in
evaluating the fourth factor in EPA's balancing test, EPA concluded
that there are adequate implementation and enforcement programs in
place to enforce the NESHAP. The commenter has provided no information
to the contrary or explained how the absence of title V actually
impairs the ability of citizens to enforce the provisions of these
NESHAP. Furthermore, the fourth factor is one factor that we evaluated.
As explained above, we considered that factor together with the other
factors and determined that it was appropriate to finalize the proposed
exemptions for the area source categories at issue in this rule.
    Comment: One commenter explained that title V provides important
monitoring benefits and stated that EPA admits that ``[o]ne way that
title V may improve compliance is by requiring monitoring (including
recordkeeping designed to serve as monitoring) to assure compliance
with emission limitations and control technology requirements imposed
in the standard'' (72 FR 16654). According to the commenter, EPA
assumes that title V monitoring would not add any monitoring
requirements beyond those required by the regulations for each
category. The commenter said that with respect to acrylic and
modacrylic fibers production, EPA states ``[b]ecause both the
continuous and noncontinuous monitoring methods required by the
proposed NESHAP would provide periodic monitoring, title V would not
add any monitoring to the proposed NESHAP.'' Id. The commenter stated
that EPA makes a similar claim with respect to lead acid battery
manufacturing (72 FR 16655), and that such claims miss the point. As
EPA admits, according to the commenter, title V does not merely require
periodic monitoring; it requires monitoring to ``assure compliance.''
The commenter continued by stating that if additional monitoring is
necessary to assure compliance, it must be required to satisfy title V,
regardless of whether the underlying NESHAP provides for periodic
monitoring. The commenter concludes that the ``burden'' imposed on a
category by title V is not unnecessary unless EPA shows that, in all
instances, the periodic monitoring requirements established in the
underlying NESHAP for that category ``assure'' compliance. According to
the commenter, EPA does not even claim--far less demonstrate with
substantial evidence--that the monitoring requirements in the NESHAP
for any of the categories it proposes to exempt ``assure'' compliance.
The commenter stated that for this reason as well, its claim that title
V requirements are ``unnecessarily burdensome'' is arbitrary and
capricious, and its exemption is unlawful and arbitrary and capricious.
    Response: The commenter asserts that ``EPA admits [that] title V
does not merely require periodic monitoring; it requires monitoring to
``assure compliance.'' The commenter does not accurately characterize
the Agency's statements in the proposal. We stated:

    One way that title V may improve compliance is by requiring
monitoring (including recordkeeping designed to serve as monitoring)
to assure compliance with the emissions limitations and control
technology requirements imposed in the standard. The authority for
adding new monitoring in the permit is in the ``periodic
monitoring'' provisions of 40 CFR 70.6(a)(3)(i)(B) and 40 CFR
71.6(a)(3)(i)(B), which allow new monitoring to be added to the
permit when the underlying standard does not already require
``periodic testing or instrumental or noninstrumental monitoring
(which may consist of recordkeeping designed to serve as
monitoring).''

See 72 FR 16654 (emphasis added).
    We nowhere state or imply that periodic monitoring is not
sufficient to assure compliance. Moreover, the commenter's position
that the Agency must make a specific finding that the monitoring in the
proposed NESHAP assures compliance with the NESHAP is inconsistent with
EPA's Final Rule Interpreting the Scope of Certain Monitoring
Requirements for State and Federal Operating Permits Programs (71 FR
75422, December 15, 2006) (``Interpretive Rule''). That rule interprets
title V of the Clean Air Act and its implementing regulations at 40 CFR
70.6(c)(1) and 71.6(c)(1) and the Clean Air Act requirements which they
implement. Under the Interpretive Rule, if an applicable requirement,
such as a NESHAP, contains periodic testing or instrumental or
noninstrumental monitoring (i.e., periodic monitoring), permitting
authorities are not authorized to assess the sufficiency of or impose
new monitoring requirements on a case-by-case basis. Federal standards
promulgated pursuant to the 1990 Clean Air Act Amendments are presumed
to obtain monitoring sufficient to assure compliance. Thus, consistent
with this interpretation and as demonstrated in the proposed rule and
above, title V would not add any monitoring requirements to the NESHAP
because the NESHAP contains periodic monitoring.
    The commenter also attempts to create a new test for consideration
in determining what is ``unnecessarily

burdensome'' under CAA section 502. Specifically, the commenter argues
that EPA must demonstrate with substantial evidence that, in all
instances, the periodic monitoring requirements assure compliance. As
explained above, this rulemaking did not re-open EPA's interpretation
of the term ``unnecessarily burdensome'' in CAA section 502. For all
the reasons explained above, we reject the commenter's attempt to
create a new test for determining whether title V is unnecessarily
burdensome on an area source category. Moreover, EPA considered
monitoring in the first factor of the four-factor balancing test that
it developed in the Exemption Rule. EPA appropriately applied that
factor to the area source categories at issue in this rule.
    As noted above, under the first factor, EPA considers whether title
V would result in significant improvements to the compliance
requirements that are proposed for the area source categories. See 70
FR 75323. It is in the context of this first factor that EPA evaluates
the monitoring, recordkeeping and reporting requirements of the
proposed NESHAP to determine the extent to which those requirements are
consistent with the requirements of title V. See 70 FR 75323. As noted
above, and in the proposed rule, we considered whether title V
monitoring requirements would lead to significant improvements in the
monitoring requirements in the proposed NESHAP and determined that they
would not.
    Specifically, EPA included in the NESHAP periodic monitoring it
determined to be necessary to assure compliance. See 72 FR 16654-16655.
In addition, for the Acrylic and Modacrylic Fibers Production area
source category, the Lead Acid Battery Manufacturing area source
category, the Flexible Polyurethane Foam Production area source
category, and the Flexible Polyurethane Fabrication area source
category, EPA found that title V would not add additional monitoring,
and that determination is consistent with the title V Interpretive
rule. See 72 FR 16654-16655. The commenter does not provide any
evidence to support a claim that title V would add monitoring,
consistent with our interpretation of title V in the Interpretive Rule,
for any of these area source categories. For the Wood Preserving area
source category, we imposed recordkeeping to serve as monitoring that
was designed to document compliance with the management practices
imposed on the industry. See 72 FR 16655. We concluded that title V
would not add additional monitoring for this category because
continuous monitoring is not necessary to ensure a reduction in HAP
emissions for this category. We also concluded that the recordkeeping
and reporting requirements in the rule are sufficient to assure
compliance and that additional monitoring is not practical or
necessary. The commenter did not take issue in its comment with the
adequacy of the recordkeeping that serves as monitoring or the
reporting requirements for the Wood Preserving area source category.
    For the reasons described above, the first factor supports an
exemption, and even if it did not, the four-factor balancing test
requires EPA to examine the factors, in combination, and determine
whether the factors, viewed together, weigh in favor of exemption. See
70 FR 75326. As explained above, we determined that the factors,
weighed together, supported exemption of the area source categories
from title V.
    Comment: One commenter argued that title V provides important
reporting certification benefits and that, specifically, plants must
report deviations from emission standards and must certify at least
annually whether they are in compliance with ``any applicable
requirements.'' See 42 U.S.C. 7661b(b)(2). The commenter stated that
EPA fails to point to any requirement in the NESHAP for any of the
categories it proposes to exempt that requires plants to report each
deviation from requirements, as title V does. The commenter disagrees
with EPA that reporting requirements for certain operating
requirements, such as the daily average water flow to a wet scrubber,
are sufficient and states that none of the NESHAP contain certification
requirements. The commenter also stated that the compliance
certification requirement obliges plant operators to certify--subject
to criminal penalties--whether their sources were in or out of
compliance with emission standards. According to the commenter,
Congress determined that this requirement was necessary in addition to
reporting requirements, and that is why it enacted the compliance
certification requirement. The commenter stated that it is not up to
EPA to declare that it disagrees with Congress and find that compliance
certification requirements are not necessary. The commenter
acknowledged that it might be possible for EPA to show that compliance
certification requirements are not necessary for some specific area
source category based on that specific category's characteristics. The
commenter said that EPA has not done that here, however, and instead
offers the generic claim that it thinks quarterly reports are enough.
Thus, the commenter believes that EPA has essentially taken the
position that compliance certification is never necessary. The
commenter also stated that EPA contravenes the CAA by excusing sources
from a compliance obligation without meeting the requirement of showing
that requirement to be unnecessary. Further, according to the
commenter, EPA acts arbitrarily by finding the compliance certification
is unnecessary without providing a rational basis for that claim. The
commenter concluded that the recording requirements that exist under
the individual NESHAP are no replacement for the recording requirements
under title V, which require prompt reporting of all ``deviations''
from any applicable requirements, not just reporting of exceedances of
EPA-selected operating requirements. According to the commenter,
because EPA has not shown that reporting of selected operating
requirements renders reporting of all deviations from any applicable
requirements unnecessary, the EPA's exemptions are unlawful and
arbitrary.
    Response: In this comment, the commenter again argues that EPA must
specifically demonstrate that all title V requirements, deviation
reporting and annual compliance certifications in this instance, are
unnecessary in isolation before EPA can lawfully exempt an area source
category from title V. We do not agree. As explained above, we
interpreted the term ``unnecessarily burdensome'' in CAA section 502
and developed the four-factor balancing test in the Exemption Rule, and
that balancing test does not require a determination that every title V
requirement is unnecessary. Instead, in the first factor we consider
``whether title V would result in significant improvements to the
compliance requirement, including monitoring, recordkeeping, and
reporting.'' As explained in the proposal preamble and noted above, we
have determined that for these source categories title V would not
result in significant improvements in compliance requirements.
    The commenter argued that these NESHAP do not contain adequate
deviation reporting requirements because the deviation reporting is
limited to reporting on exceedances or variances of the operating
requirements set forth in the standards. We are not clear what aspects
of the deviation reporting contained in the NESHAP the commenter
considers insufficient or what additional deviation reporting the
commenter believes would be included

if title V applied. The proposed NESHAP contain deviation reporting
requirements for each of the source categories that we are exempting
from title V. In response to this comment, the Agency has re-evaluated
the deviation requirements for these NESHAP and determined that any
additional, unspecified, deviation reporting that title V might add
would not lead to significant improvements in the compliance
requirements finalized in this rulemaking.
    The commenter also takes issue with EPA's conclusion that annual
compliance certifications are not necessary for certain categories
because of quarterly reporting requirements. The commenter implies that
enforcement of the NESHAP is undermined without an annual compliance
certification and states that EPA admitted that there are no
certification requirements in the NESHAP. First, even absent the
requirement to submit annual compliance certifications under the
NESHAP, sources must nevertheless comply with all emission standards
and requirements in the NESHAP. In addition, the Agency did not
conclude that annual compliance certification is never necessary, but
only that the annual compliance certification would not lead to
significant improvements in the compliance requirements in the NESHAP
because some of the NESHAP require quarterly reports. Furthermore,
contrary to what the commenter states, and as discussed above in
section IV of this preamble, there are certification requirements
contained in the NESHAP (e.g., initial certification of compliance
status).
    Moreover, we determined in our consideration of the fourth factor
that there are adequate enforcement and implementation programs in
place to assure compliance with the NESHAP and the commenter has
provided no evidence that the lack of annual compliance certifications
will undermine enforcement and implementation of the NESHAP.
    Comment: One commenter believed EPA argued that its own belief that
title V is a ``significant burden'' on area sources further justifies
its exemption (72 FR 16655-16656). According to the commenter,
regardless of whether EPA regards the burden as ``significant,'' the
Agency may not exempt a category from compliance with title V
requirements unless compliance is ``unnecessarily burdensome.'' The
commenter stated that in any event, EPA's claims about the alleged
significance of the burden of compliance is entirely conclusory and
could be applied equally to any major or area source category. The
commenter also stated that the Agency does not show that the compliance
burden is especially great for any of the sources it proposes to
exempt, and thus does not demonstrate that the alleged burden
necessitates treating them differently from other categories by
exempting them from compliance with title V requirements.
    Response: The commenter appears to take issue with the formulation
of the second factor of the four-factor balancing test. Specifically,
the commenter states that EPA must determine that title V compliance is
``unnecessarily burdensome'' and not a ``significant burden'' as
expressed in the second factor of the four factor balancing test. We
note that the commenter in other parts of its comments on the title V
exemptions argues that EPA must demonstrate that every title V
requirement is ``unnecessary'' for a particular source category before
an exemption can be granted but makes no mention of the ``burden'' of
those requirements on area sources, but here the commenter argues that
``significant burden'' is not appropriate for the second factor.
Notwithstanding the commenter's inconsistency, as explained above, the
four-factor balancing test was established in the Exemption Rule and we
did not re-open EPA's interpretation of the term ``unnecessarily
burdensome'' in this rule.
    Contrary to the commenter's assertions, we properly analyzed the
second factor of the four-factor balancing test. See 70 FR 75320. Under
that factor, EPA considers whether title V permitting would impose a
significant burden on the area source categories and whether the burden
would be aggravated by any difficulty the sources may have in obtaining
assistance from permitting agencies. See 70 FR 75324. The commenter
appears to assert that the second factor must be satisfied for EPA to
exempt an area source category from title V, but, as explained above,
the four factors are considered in combination. We have concluded that
the second factor, in combination with the other factors, supports an
exemption for the area source categories at issue.
    Comment: According to one commenter, EPA argued that compliance
with title V would not yield any gains in compliance with underlying
requirements in the relevant NESHAP (72 FR 16656). The commenter stated
that EPA's conclusory claim could be made equally with respect to any
major or area source category. According to the commenter, the Agency
provides no specific reasons to believe--with respect to any of the
categories it proposes to exempt--that the additional informational,
monitoring, reporting, certification, and enforcement requirements that
exist in title V but not in these NESHAP would not provide additional
compliance benefits. The commenter also stated that the only basis for
EPA's claim is, apparently, its beliefs that those additional
requirements never confer additional compliance benefits. According to
the commenter, by advancing such argument, EPA merely seeks to elevate
its own policy judgment over Congress' decisions reflected in the CAA's
text and legislative history.
    Response: The commenter mischaracterizes the first and third
factors of the four-factor balancing test and takes out of context
certain statements in the proposed rule concerning those factors.
    First, the commenter incorrectly characterizes our statements in
the proposed rule in applying the third factor. Under the third factor,
EPA evaluates ``whether the costs of title V permitting for the area
source category would be justified, taking into consideration any
potential gains in compliance likely to occur for such sources.''
Contrary to what the commenter alleges, EPA did not state in the
proposed rule that compliance with title V would not yield any gains in
compliance with the underlying requirements in the relevant NESHAP, nor
does factor three require such a determination.
    Instead, consistent with the third factor, we considered whether
the costs of title V are justified in light of any potential gains in
compliance. In considering the third factor, we stated that, ``[b]ased
on our consideration of factor 1 (described above) and factor 4
(described below), we did not identify potential gains in compliance
from title V permitting. Therefore, we conclude that the costs of title
V permitting for these area source categories are not justified.'' (72
FR 16656) (emphasis added).
    Second, the commenter mischaracterizes the first factor by
asserting that EPA must demonstrate that title V will provide no
additional compliance benefits. But the first factor calls for a
consideration of ``whether title V would result in significant
improvements to the compliance requirements, including monitoring,
recordkeeping, and reporting, that are proposed for an area source
category.'' Thus, contrary to the commenter's assertion, the inquiry
under the first factor is not whether title V will provide any
compliance benefit, but rather whether it will provide significant

improvements in compliance requirements.
    EPA applied the four-factor balancing test in determining whether
title V was unnecessarily burdensome on the area source categories we
are exempting from title V in this rule. This rulemaking did not re-
open EPA's interpretation of the term ``unnecessarily burdensome'' in
CAA section 502. Because the commenter's statements do not demonstrate
a flaw in EPA's application of the four-factor balancing test to the
specific facts of the source categories at issue here, which is the
sole title V issue in this rulemaking, the comments provide no basis
for the Agency to reconsider its proposal to exempt the area source
categories from title V. Furthermore, EPA nowhere states, nor does it
believe, that title V never confers additional compliance benefits as
the commenter asserts.
    Comment: According to one commenter, EPA argued that alternative
State implementation and enforcement programs assure compliance with
the underlying NESHAP without relying on title V permits (72 FR 16656).
The commenter stated that again, however, EPA's claim is entirely
conclusory and generic. The commenter also stated that the Agency does
not identify any aspect of any of the underlying NESHAP showing that
with respect to these specific NESHAPs--unlike all the other major and
area source NESHAP it has issued without title V exemptions--title V
compliance is unnecessary. Instead, according to the commenter, EPA
merely pointed to existing State requirements and the potential for
actions by States and EPA that are generally applicable to all
categories (along with some small business and voluntary programs). The
commenter said that absent a showing by EPA that distinguishes the
sources it proposes to exempt from other sources, however, the Agency's
argument boils down to the claim that it generally views title V
requirements as unnecessary. The commenter stated that may be EPA's
view, but it was not Congress's view when Congress enacted title V and
it does not suffice to show that title V compliance is unnecessarily
burdensome.
    Response: The commenter again takes issue with the Agency's test
for determining whether title V is unnecessarily burdensome, as
developed in the Exemption Rule. Our interpretation of the term
``unnecessarily burdensome'' is not the subject of this rulemaking. To
the extent the commenter asserts that our application of the fourth
factor is flawed, we disagree. As explained in the proposal preamble
and above, we considered the fourth factor and determined that there
are adequate implementation and enforcement programs in place to assure
compliance with the CAA, consistent with the fourth factor. As stated
above, we do not have data available on the enforcement of these
NESHAPs as in the Exemption Rule because, unlike in that rule, we are
exempting the categories at the same time we are promulgating these
NESHAPs. In the proposed rule, we did, however, explain that States
with delegated programs have enforcement and compliance assistance
programs in place to enforce the provisions of these NESHAPs (72 FR
16656). In addition, States must have adequate programs to enforce the
HAP regulations and provide assurances that it will enforce all NESHAPs
before EPA will delegate a program to the States. See 40 CFR part 63,
subpart E. The commenter argues that the exemptions must fail because
``[t]he agency does not identify any aspect of any of the underlying
NESHAP showing that with respect to these specific NESHAP--unlike all
the other major and area source NESHAP it has issued without title V
exemptions--title V compliance is unnecessary'' (emphasis added). The
standard that the commenter proposes is not consistent with the
standard the Agency established in the Exemption Rule and applied in
the proposed rule in determining if title V is unnecessarily burdensome
for the source categories at issue. Furthermore, the standard the
commenter suggests is an impossible standard to meet.
    Comment: One commenter stated that, as EPA concedes, the
legislative history the CAA shows that Congress did not intend EPA to
exempt source categories from compliance with title V unless doing so
would not adversely affect public health, welfare, or the environment.
See 72 FR 16654; 16656. Nonetheless, according to the commenter, EPA
does not make any showing that its exemptions would not have adverse
impacts on health, welfare and the environment. The commenter stated
that instead, EPA offered only the conclusory assertion that ``the
level of control would remain the same'' whether title V permits are
required are not (72 FR 16656). The commenter continued by stating that
EPA relied entirely on the conclusory arguments advanced elsewhere in
its proposal that compliance with title V would not yield additional
compliance with the underlying NESHAP. The commenter stated that those
arguments are wrong for the reasons given above, and therefore EPA's
claims about public health, welfare and the environment are wrong too.
The commenter also stated that Congress enacted title V for a reason:
to assure compliance with all applicable requirements and to empower
citizens to get information and enforce the CAA. The commenter said
that those benefits--of which EPA's proposed rule deprives the public--
would improve compliance with the underlying standards and thus have
benefits for public health, welfare and the environment. According to
the commenter, EPA has not demonstrated that these benefits are
unnecessary with respect to any specific source category, but again
simply rests on its own apparent belief that they are never necessary.
The commenter concluded that for the reasons given above, that attempt
to substitute EPA's judgment for Congress' is unlawful and arbitrary.
    Response: Congress gave the Administrator the authority to exempt
area sources from compliance with title V if, in his discretion, the
Administrator ``finds that compliance with [title v] is impracticable,
infeasible, or unnecessarily burdensome.'' See CAA section 502(a). EPA
has interpreted one of the three justifications for exempting area
sources, ``unnecessarily burdensome'', as requiring consideration of
the four factors discussed above. EPA applied these four factors to the
Acrylic and Modacrylic Fibers Production area source category, the Lead
Acid Battery Manufacturing area source category, the Flexible
Polyurethane Foam Production and Fabrication area source categories,
and the Wood Preserving area source category and concluded that
requiring title V for these area source categories would be
unnecessarily burdensome.
    In addition to determining that title V would be unnecessarily
burdensome on the area source categories for which we proposed
exemptions, as in the Exemption Rule, EPA also considered, consistent
with our interpretation of the legislative history, whether exempting
the area source categories would adversely affect public health,
welfare or the environment. As explained in the proposal preamble and
above, we concluded that exempting the area source categories at issue
in this rule would not adversely affect public health, welfare or the
environment because the level of control would be the same even if
title V applied. The commenter has not provided any information that
exemption of these area source categories from title V will adversely
affect public health, welfare or the environment.

I. Compliance with Executive Order 13045: Protection of Children From
Environmental Health and Safety Risks

    Comment: One commenter disagreed with EPA's conclusion that this
Executive Order does not apply to this action because it is not
economically significant and does not present a disproportionate risk
to children. According to the commenter, nothing in the language of the
Executive Order limits EPA's obligation to consider risks to instances
when it thinks the underlying regulatory action is economically
significant. The commenter also claimed that the toxic emissions from
the source categories included in the proposal have a disproportionate
risk on children, who are especially at risk to all toxins and inhaled
pollution. The commenter alleged that EPA has ample reason to believe
that failing to require the degree of reduction required by the CAA and
its exemption of source categories from title V requirements will have
a disproportionate effect on children.
    Response: We disagree with the commenter. Section 2-202 of
Executive Order 13045, ``Protection of Children from Environmental
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997) defines
the actions subject to its terms. As we stated at proposal, this
Executive Order applies to any rule that: (1) Is determined to be
``economically significant'' as defined under Executive Order 12866,
and (2) concerns an environmental health or safety risk that EPA has
reason to believe may disproportionately affect children. If a
regulatory action meets both criteria, the Executive Order directs EPA
to evaluate the environmental health or safety effects of the planned
rule on children and explain why the planned regulation is preferable
to other potentially effective and reasonably feasible alternatives
considered by the Agency.
    EPA interprets Executive Order 13045 as applying to those
regulatory actions that concern health or safety risks, such that the
analysis called for by section 5-501 of the Executive Order has the
potential to influence the regulation. These final rules are not
subject to Executive Order 13045 because they are not economically
significant and, because the rules are based solely on technology
performance, an analysis under section 5-501 of the Executive Order
would not have had the potential to influence this regulation.

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

    Comment: One commenter alleged that minority and low income
populations are located disproportionately near the source categories
covered by the proposal. According to the commenter, these minority and
low income populations will be adversely affected by any standard that
is less protective than required by the CAA and also by any exemption
from title V permitting requirements. The commenter claimed that EPA
failed to consider these effects of its proposal.
    Response: As we stated at proposal, we have determined that these
final rules will not have disproportionately high and adverse human
health or environmental effects on minority or low-income populations
because they increase the level of environmental protection for all
affected populations without having any disproportionately high and
adverse human health or environmental effects on any population,
including any minority or low-income population. The commenter provided
no information to support the commenter's conclusion.

VI. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

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

B. Paperwork Reduction Act

    The information requirements in these rules have been submitted for
approval to OMB under the Paperwork Reduction Act, 44 U.S.C. 3501 et
seq. The information collection requirements are not enforceable until
OMB approves them.
    The recordkeeping and reporting requirements in the final rules are
based on the existing permit requirements as well as the information
collection requirements in the part 63 General Provisions (40 CFR part
63, subpart A). The recordkeeping and reporting requirements in the
General Provisions are mandatory pursuant to section 114 of the CAA (42
U.S.C. 7414). All information submitted to EPA pursuant to the
information collection requirements for which a claim of
confidentiality is made is safeguarded according to CAA section 114(c)
and the Agency's implementing regulations at 40 CFR part 2, subpart B.
    The information collection requirements for acrylic and modacrylic
fibers production are the same as the requirements that are in the
current State operating permit for the one existing source. The only
new information collection requirements that apply to this area source
consist of initial notifications, records of process and maintenance
wastewater treated in a wastewater treatment systems, and an SSM plan.
Any new acrylic and modacrylic fibers production area source is subject
to all information collection requirements in the part 63 General
Provisions.
    The annual burden for this information collection averaged over the
first 3 years of this ICR is estimated to total 9 labor hours per year
at a cost of $780 for the one existing acrylic and modacrylic fibers
area source. No capital/startup costs or operation and maintenance
costs are associated with the final requirements. No costs or burden
hours are estimated for new acrylic and modacrylic fibers production
area sources because no new area sources are estimated during the next
3 years.
    As a result of public comments, we learned there are no existing
carbon black production facilities that are area sources. Consequently,
there are no costs or burden hours associated with the monitoring,
reporting and recordkeeping requirements for existing area sources. No
costs or burden hours are estimated for new carbon black production
area sources because no new sources are estimated during the next 3
years.
    The testing, monitoring, recordkeeping, and reporting requirements
for existing chromium compounds manufacturing area sources are the same
as the requirements that are in the current title V operating permit
for the two existing facilities. The only new information collection
requirements that apply to these area sources consist of initial
notifications, SSM plans, and control device inspections at one plant.
Any new chromium compounds manufacturing area source is subject to all
information collection requirements in the part 63 General Provisions.
    The annual burden for this information collection averaged over the
first 3 years of this ICR is estimated to total 194 labor hours per
year at a cost

of $16,409 for the two existing chromium compounds manufacturing area
sources. No capital/startup costs or operation and maintenance costs
are associated with the requirements. No costs or burden hours are
estimated for new chromium compounds manufacturing area sources because
no new area sources are estimated during the next 3 years.
    The final NESHAP for flexible polyurethane foam production and
fabrication operations area sources require a one-time notification by
slab stock foam facilities certifying that they do not use methylene
chloride and records documenting that they do not use methylene
chloride. One plant that uses methylene chloride is subject to
additional reporting requirements.
    The annual burden for this information collection averaged over the
first 3 years of this ICR is estimated to total 925 labor hours per
year at a cost of $78,337 for the 500 or more existing flexible foam
fabrication and production area sources. No capital/startup costs or
operation and maintenance costs are associated with the requirements.
No costs or burden hours are estimated for new flexible foam production
or fabrication area sources because no new sources are estimated during
the next 3 years.
    The testing and monitoring requirements for emissions sources
equipped with a scrubbing system at new and existing lead acid battery
manufacturing area sources are the same as the requirements that are in
the NSPS (40 CFR part 60, subpart KK). Monitoring requirements for
emissions sources equipped with fabric filter are also included in the
final rule. New information collection requirements that apply to these
area sources consist of notifications, records, and reports required by
the part 63 General Provisions.
    The annual burden for this information collection averaged over the
first 3 years of this ICR is estimated to total 2,302 labor hours per
year at a cost of $172,477 for the approximately 60 existing lead acid
battery manufacturing area sources, with capital/startup costs of
$4,840 and no operation and maintenance costs. No costs or burden hours
are estimated for new lead acid battery manufacturing area sources
because no new sources are estimated during the next 3 years.
    The final NESHAP for wood preserving area sources does not include
testing or monitoring requirements because they are subject to
management practices. The only new information collection requirements
that apply to these existing area sources consist of initial
notifications, records demonstrating compliance with the management
practice requirements, and deviation reporting requirements.
    The annual burden for this information collection averaged over the
first 3 years of this ICR is estimated to total 1,055 labor hours per
year at a cost of $89,324 for approximately 400 existing wood
preserving area sources. No capital/startup costs or operation and
maintenance costs are associated with the requirements. No costs or
burden hours are estimated for new wood preserving area sources because
no new sources are estimated during the next 3 years.
    Burden means the total time, effort, or financial resources
expended by persons to generate, maintain, retain, disclose, or provide
information to or for a Federal agency. This includes the time needed
to review instructions; develop, acquire, install, and utilize
technology and systems for the purposes of collecting, validating, and