[Federal Register: June 3, 2010 (Volume 75, Number 106)]
[Rules and Regulations]
[Page 31317-31320]
[DOCID:fr03jn10-11]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 63

[EPA-HQ-OAR-2008-0053; FRL-9158-1]
RIN 2060-AN47

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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is taking direct final action on amendments to the paints
and allied products manufacturing area source rule. With this direct
final rule, EPA is amending the definition of ``material containing
hazardous air pollutants.'' It was not EPA's intent to omit the part of
this definition that addresses non-carcinogens, and this omission could
potentially and erroneously include facilities as applicable to the
rule when they should not be covered.
    This action clarifies text of the National Emission Standards for
Hazardous Air Pollutants: Paints and Allied Products Manufacturing Area
Source Standards which was published on December 3, 2009. This action
will not change the level of health protection the final rule provides
or the standards and other requirements established by the rule.

DATES: This direct final rule is effective on September 16, 2010
without further notice, unless EPA receives relevant adverse comment by
July 19, 2010. If EPA receives relevant adverse comment, we will
publish a timely withdrawal in the Federal Register informing the
public that the amendments in this rule will not take effect.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2008-0053, by one of the following methods:
     Federal eRulemaking Portal: www.regulations.gov: Follow
the instructions for submitting comments.
     Agency Web site: www.epa.gov/oar/docket.html. Follow the
instructions for submitting comments on the EPA Air and Radiation
Docket Web site.
     E-mail<EMAIL_ADDRESS>Include Docket ID No. EPA-
HQ-OAR-2008-0053 in the subject line of the message.
     Fax: Send comments to<PHONE_NUMBER>, Attention Docket ID
No. EPA-HQ-OAR-2008-0053.
     Mail: Area Source NESHAP for Paints and Allied Products
Manufacturing Docket, Environmental Protection Agency, Air and
Radiation Docket and Information Center, Mailcode: 2822T, 1200
Pennsylvania Avenue, NW., Washington, DC 20460. Please include a total
of two copies. In addition, please mail a copy of your comments on the
information collection provisions to the Office of Information and
Regulatory Affairs, Office of Management and Budget (OMB), Attn: Desk
Officer for EPA, 725 17th Street, NW., Washington, DC 20503.
     Hand Delivery: EPA Docket Center, Public Reading Room, EPA
West, Room 3334, 1301 Constitution Avenue, NW., Washington, DC 20460.
Such deliveries are only accepted during the Docket's normal hours of
operation, and special arrangements should be made for deliveries of
boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-HQ-OAR-
2008-0053. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
http://www.regulations.gov, including any personal information
provided, unless the comment includes information claimed to be
confidential business information (CBI) or other information whose
disclosure is restricted by statute. Do not submit information that you
consider to be CBI or otherwise protected through http://
www.regulations.gov or e-mail. The http://www.regulations.gov Web site
is an ``anonymous access'' system, which means EPA will not know your
identity or contact information unless you provide it in the body of
your comment. If you send an e-mail comment directly to EPA without
going through http://www.regulations.gov, your e-mail address will be
automatically captured and included as part of the comment that is
placed in the public docket and made available on the Internet. If you
submit an electronic comment, EPA recommends that you include your name
and other contact information in the body of your comment and with any
disk or CD-ROM you submit. If EPA cannot read your comment due to
technical difficulties and cannot contact you for clarification, EPA
may not be able to consider your comment. Electronic files should avoid
the use of special characters, any form of encryption, and be free of
any defects or viruses.
    Docket: EPA has established a docket for this action under Docket
ID No. EPA-HQ-OAR-2008-0053. All documents in the docket are listed in
the Federal Docket Management System index at http://
www.regulations.gov. Although listed in the index, some information is
not publicly available (e.g., CBI or other information whose disclosure
is restricted by statute). Certain other material, such as copyrighted
material, will be publicly available only in hard copy form. Publicly
available docket materials are available either electronically through
http://www.regulations.gov or in hard copy at the EPA Docket Center,
Public Reading Room, EPA West, Room 3334, 1301 Constitution Ave., NW.,
Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30
p.m., Monday through Friday, excluding

legal holidays. The telephone number for the Public Reading Room is
(202) 566-1744, and the telephone number for the Air Docket is (202)
566-1742.

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

I. Why is EPA using a direct final rule?
II. Does this action apply to me?
III. Where can I get a copy of this document?
IV. Why are we amending the rule?
V. What amendments are we making to the rule?
VI. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
G. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
I. National Technology Transfer and Advancement Act
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
K. Congressional Review Act

I. Why is EPA using a direct final rule?

    We are publishing this rule without a prior proposed rule because
we view this as a non-controversial action and anticipate no adverse
comment. This action amends the definition of ``material containing
HAP'' to include non-carcinogens in quantities of 1.0 percent by mass
or more. It was the intent of EPA to include this complete definition,
but we inadvertently omitted the language regarding the 1.0 percent
level for non-carcinogens, as defined by the Occupational Safety and
Health Administration (OSHA) at 29 CFR 1910.1200(g).
    It was not EPA's intent to omit the part of this definition that
addresses non-carcinogens, and this omission could potentially and
erroneously include facilities as applicable to the rule that are not
part of the source category as defined in the inventory, which took
into account the Toxics Release Inventory (TRI) de minimis thresholds.
    Because this is an amendment of regulatory language through a rule
action, a rule redline has been created of the current rule with the
amendments, and has been placed in the docket to aid the public's
ability to comment on the regulatory text. If we receive relevant
adverse comment on this direct final rule, we will publish a timely
withdrawal in the Federal Register informing the public that the
amendments in this rule will not take effect. Any parties interested in
commenting must do so at this time.

II. Does this action apply to me?

    Regulated Entities. The regulated categories and entities
potentially affected by the final rule include:

------------------------------------------------------------------------
                                                  Examples of regulated
            Category             NAICS code \1\          entities
------------------------------------------------------------------------
Paint & Coating Manufacturing..          325510  Area source facilities
                                                  engaged in mixing
                                                  pigments, solvents,
                                                  and binders into
                                                  paints and other
                                                  coatings, such as
                                                  stains, varnishes,
                                                  lacquers, enamels,
                                                  shellacs, and water
                                                  repellant coatings for
                                                  concrete and masonry.
Adhesive Manufacturing.........          325520  Area source facilities
                                                  primarily engaged in
                                                  manufacturing
                                                  adhesives, glues, and
                                                  caulking compounds.
Printing Ink Manufacturing.....          325910  Area source facilities
                                                  primarily engaged in
                                                  manufacturing printing
                                                  inkjet inks and inkjet
                                                  cartridges.
All Other Miscellaneous                  325998  Area source facilities
 Chemical Product and                             primarily engaged in
 Preparation Manufacturing.                       manufacturing
                                                  indelible ink, India
                                                  ink writing ink, and
                                                  stamp pad ink.
------------------------------------------------------------------------
\1\ North American Industry Classification System.

    This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to be affected by this
action. To determine whether your facility is regulated by this action,
you should examine the applicability criteria in 40 CFR 63.11599,
subpart CCCCCCC (NESHAP for Area Sources: Paints and Allied Products
Manufacturing). If you have any questions regarding the applicability
of this action to a particular entity, consult either the state
delegated authority or the EPA regional representative, as listed in 40
CFR 63.13 of subpart A (General Provisions).

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

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

IV. Why are we amending the rule?

    Our intention in this area source rule was to reflect the TRI de
minimis thresholds for both carcinogens (0.1 percent HAP concentration)
and non-carcinogens (1.0 percent HAP concentration) in the definition
of ``material containing HAP'' however, only the threshold for
carcinogens is currently reflected. To correct this error, we are
amending the rule to add the 1.0 percent concentration threshold for
non-carcinogens.
    These concentration levels are consistent with the OSHA Hazard
Communication Standard requirements for development of a Material
Safety Data Sheet (MSDS), which is how paints and allied products
manufacturers receive information on the toxicity of the raw materials
they use (See 29 FR 1910.1200(g)). The concentration level for
hazardous chemicals is 1.0 percent, unless the chemical is an OSHA-
defined carcinogen. The concentration level for OSHA-defined
carcinogens is 0.1 percent. We inadvertently omitted mentioning the 1.0
percent for non-carcinogens portion of the definition in the definition
for ``material containing HAP'' in the area source standards for Paints
and Allied Products Manufacturing (40 FR 63.11607).

    The amendment will not change the level of health protection the
rule provides or the standards established by the rule. To quote the
TRI rule that codified the concentration levels, ``EPA does not expect
that the processing and use of mixtures containing less than the de
minimis concentration would, in most instances, contribute
significantly to the threshold determinations or releases of listed
toxic chemicals from any given facility.'' (53 FR 4509). In other
words, mixtures with concentration levels under the de minimis levels
are not concentrations of concern under TRI.
    Furthermore, this amendment will accurately reflect the regulated
source category, as non-carcinogens with less than 1.0 percent by mass
were not intended to be regulated as part of the source category,
because the source category as defined excluded sources below this
level. Also, the complete de mimimis threshold definition may encourage
manufacturers to replace some carcinogenic raw materials with
noncarcinogenic raw materials. No costs or other impacts are associated
with this amendment.

V. What amendments are we making to the rule?

    On December 3, 2009 the EPA published the national emission
standards for hazardous air pollutants (NESHAP) for area source paints
and allied products manufacturing facilities as subpart CCCCCCC in 40
CFR part 63 (74 FR 63504). This action corrects the error in this
regulation.
    As currently written, 40 CFR 63.11607 defines ``material containing
HAP'' as ``a material containing benzene, methylene chloride, or
compounds of cadmium, chromium, lead, and/or nickel, in amounts greater
than or equal to 0.1 percent by weight, as shown in formulation data
provided by the manufacturer or supplier, such as the Material Safety
Data Sheet for the material. Benzene and methylene chloride are
volatile HAP. Compounds of cadmium, chromium, lead and/or nickel are
metal HAP.'' The correct definition is, ``* * * in amounts greater than
or equal to 0.1 percent by weight for carcinogens or 1.0 percent by
weight for non-carcinogens, as shown in * * * (emphasis added). This
single change provides further clarification to the applicability
provisions that are referenced in the final rule, as well as accurately
reflecting the thresholds used in the TRI and reference at the time the
source category was defined. This action notifies interested parties of
the corrections.

VI. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

    This action is not a ``significant regulatory action'' under the
terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is,
therefore, not subject to review under the Executive Order.

B. Paperwork Reduction Act

    This action does not impose any new information collection burden.
The proposed amendments result in no changes to the information
collection requirements of the existing standards of performance and
will have little or no impact on the information collection estimate of
projected cost and hour burden made and approved by the Office of
Management and Budget (OMB) during the development of the existing
standards of performance. Therefore, the information collection
requests have not been amended. However, OMB has previously approved
the information collection requirements contained in the existing
regulations (subpart CCCCCCC, 40 CFR part 63) under the provisions of
the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., and has assigned
OMB control number 2060-0633 (ICR 23487.02). The OMB control numbers
for EPA's regulations in 40 CFR are listed in 40 CFR part 9.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act generally requires an agency to
prepare a regulatory flexibility analysis of any rule subject to notice
and comment rulemaking requirements under the Administrative Procedure
Act or any other statute unless the agency certifies that the rule
would not have a significant economic impact on a substantial number of
small entities. Small entities include small businesses, small not-for-
profit enterprises, and small governmental jurisdictions.
    For the purposes of assessing the impacts of this direct final rule
on small entities, a small entity is defined as: (1) A small business
that meets the Small Business Administration size standards for small
businesses found at 13 CFR 121.201; (2) a small governmental
jurisdiction that is a government of a city, county, town, school
district, or special district with a population of less than 50,000;
and (3) a small organization that is any not-for-profit enterprise
which is independently owned and operated and is not dominant in its
field.
    After considering the economic impacts of this direct final rule on
small entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities. Although
this direct final rule will not have a significant economic impact on a
substantial number of small entities, EPA nonetheless has tried to
reduce the impact of this rule on small entities. If adopted, the
amended definition for ``material containing HAP'' will not adversely
impact small entities, as the thresholds for the noncarcinogenic HAP
are below the TRI levels of concern for this source category.

D. Unfunded Mandates Reform Act

    This direct final does not contain a Federal mandate that may
result in expenditures of $100 million or more for State, local, and
tribal governments, in the aggregate, or to the private sector in any
one year. This direct final is not expected to impact State, local, or
tribal governments. Thus, this rule would not be subject to the
requirements of sections 202 and 205 of the Unfunded Mandates Reform
Act (UMRA).
    This final rule would also not be subject to the requirements of
section 203 of UMRA because it contains no regulatory requirements that
might significantly or uniquely affect small governments.

E. Executive Order 13132: Federalism

    This direct final rule does not have federalism implications. It
will not have substantial direct effects on the States, on the
relationship between the national government and the States, or on the
distribution of power and responsibilities among the various levels of
government, as specified in Executive Order 13132. This direct final
rule does not impose any requirements on State and local governments.
Thus, Executive Order 13132 does not apply to this rule.

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

    This action does not have tribal implications, as specified in
Executive Order 13175 (65 FR 67249, November 9, 2000). This direct
final rule imposes no requirements on tribal governments; thus,
Executive Order 13175 does not apply to this action.

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

    EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997)
as applying to those regulatory actions that concern health or safety
risks, such that the analysis required under section 5-501 of the Order
has the potential to

influence the regulation. This action is not subject to EO 13045
because the final rule is based solely on technology performance.

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

    This direct final rule is not a ``significant energy action'' as
defined in Executive Order 13211 (66 FR 28355, May 22, 2001) because it
is not likely to have a significant adverse effect on the supply,
distribution, or use of energy.

I. National Technology Transfer and Advancement Act

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

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

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

K. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801, et seq., as added by
the Small Business Regulatory Enforcement Fairness Act of 1996,
generally provides that before a rule may take effect, the agency
promulgating the rule must submit a rule report, which includes a copy
of the rule, to each House of Congress and to the Comptroller General
of the United States. EPA will submit a report containing this direct
final rule and other required information to the U.S. Senate, the U.S.
House of Representatives, and the Comptroller General of the United
States prior to publication of this final rule in the Federal Register.
A major rule cannot take effect until 60 days after it is published in
the Federal Register. This direct final rule is not a ``major rule'' as
defined by 5 U.S.C. 804(2). This direct final rule will be effective on
September 16, 2010.

List of Subjects in 40 CFR Part 63

    Environmental protection, Administrative practice and procedure,
Air pollution control, Hazardous substances, Intergovernmental
relations, Reporting and recordkeeping requirements.

    Dated: May 27, 2010.
Lisa P. Jackson,
Administrator.

0
For the reasons set out in the preamble, title 40, chapter I, part 63,
subpart CCCCCCC of the Code of Federal Regulations is amended as
follows:

PART 63--[AMENDED]

0
1. The authority citation for part 63 continues to read as follows:

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

Subpart CCCCCCC--[Amended]

0
2. Section 63.11607 is amended by revising the definition of Material
containing HAP to read as follows:

Sec.  63.11607  What definitions apply to this subpart?

* * * * *
    Material containing HAP means a material containing benzene,
methylene chloride, or compounds of cadmium, chromium, lead, and/or
nickel, in amounts greater than or equal to 0.1 percent by weight for
carcinogens, as defined by the Occupational Safety and Health
Administration at 29 CFR 1910.1200(d)(4), or 1.0 percent by weight for
non-carcinogens, as shown in formulation data provided by the
manufacturer or supplier, such as the Material Safety Data Sheet for
the material. Benzene and methylene chloride are volatile HAP.
Compounds of cadmium, chromium, lead and/or nickel are metal HAP.
* * * * *
[FR Doc. 2010-13384 Filed 6-2-10; 8:45 am]
BILLING CODE 6560-50-P