[Federal Register: December 30, 2009 (Volume 74, Number 249)]
[Rules and Regulations]
[Page 69193-69217]
[DOCID:fr30de09-11]

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Part II

Environmental Protection Agency

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40 CFR Part 63

National Emission Standards for Hazardous Air Pollutants for Area
Sources: Chemical Preparations Industry; Final Rule

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 63

[EPA-HQ-OAR-2009-0028; FRL-9095-1]
RIN 2060-AN46

National Emission Standards for Hazardous Air Pollutants for Area
Sources: Chemical Preparations Industry

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is promulgating national emissions standards for control
of hazardous air pollutants (HAP) from the chemical preparations area
source category. These final emissions standards for new and existing
sources reflect EPA's final determination regarding the generally
available control technology or management practices (GACT) for the
source category.

DATES: This final rule is effective on December 30, 2009.

ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-HQ-OAR-2009-0028. 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., confidential business information (CBI) or other
information whose disclosure is restricted by statute. Certain other
material, such as copyrighted material, is not placed on the Internet
and will be publicly available only in hard copy form. Publicly
available docket materials are available either electronically in
http://www.regulations.gov or in hard copy at the Area Source NESHAP
for Chemical Preparations Manufacturing Docket, EPA/DC, 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<PHONE_NUMBER>, and the telephone number for the Air Docket is
(202) 566-1742.

FOR FURTHER INFORMATION CONTACT: Mr. Warren Johnson, Outreach and
Information Division, Office of Air Quality Planning and Standards
(C404-05), Environmental Protection Agency, Research Triangle Park,
North Carolina 27711, telephone number:<PHONE_NUMBER>; fax number:
(919) 541-0242; e-mail address<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:
    Outline. The information in this preamble is organized as follows:

I. General Information
    A. Does This Action Apply to Me?
    B. Where Can I Get a Copy of This Document?
    C. Judicial Review
II. Background Information for This Final Rule
III. Summary of Changes Since Proposal
IV. Summary of Final Standards
    A. Do the Final Standards Apply to My Source?
    B. When Must I Comply With the Final Standards?
    C. What Are My Final Standards?
    D. What Are My Initial and Continuous Monitoring Requirements?
    E. What Are My Notification, Recordkeeping, and Reporting
Requirements?
    F. What Are the Title V Permit Requirements?
V. Summary of Comments and Responses
    A. Source Category Listing and Applicability
    B. Alternative Standards
    C. GACT Limits
    D. Initial Compliance
    E. Continuous Monitoring, Inspections and Reporting
    F. Title V Permitting
    G. Cost Impacts
    H. Miscellaneous
VI. Impacts of the Final Standards
    A. What Are the Air Impacts?
    B. What Are the Cost Impacts?
    C. What Are the Economic Impacts?
    D. What Are the Non-Air Health, Environmental, and Energy
Impacts?
VII. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children From
Environmental Health and Safety Risks
    H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
    I. National Technology Transfer and Advancement Act
    J. Executive Order 12898: Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations
    K. Congressional Review Act

I. General Information

A. Does this Action Apply to Me?

    The regulated category and entities potentially affected by the
final standards include:

------------------------------------------------------------------------
                                      NAICS      Examples of regulated
             Category                code \1\           entities
------------------------------------------------------------------------
All other miscellaneous chemical       325998  Area source facilities
 product and preparation                        that manufacture
 manufacturing.                                 chemical preparations
                                                containing metal
                                                compounds of chromium,
                                                lead, manganese, or
                                                nickel, except for
                                                manufacturers of
                                                indelible ink, India
                                                ink, writing ink, and
                                                stamp pad ink. Chemical
                                                preparations include,
                                                but are not limited to,
                                                fluxes, water treatment
                                                chemicals, rust
                                                preventatives and
                                                plating chemicals,
                                                concrete additives,
                                                gelatin, and drilling
                                                fluids.
------------------------------------------------------------------------
\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. Chemical preparation operations described by the NAICS code
325998 that manufacture indelible ink, India ink, writing ink, and
stamp pad ink are subject to area source regulations for paints and
allied products (40 CFR Subpart CCCCCCC). See 40 CFR 63.11599.
Therefore, chemical preparation operations that manufacture indelible
ink, India ink, writing ink or stamp pad ink, or any combination
thereof, are subject to the paints and allied products area source rule
and those operations must comply all applicable requirements specified
in Subpart CCCCCCC. Such operations are not subject to the final
chemical preparations area source rule. To determine whether operations
at your facility are regulated by this action, you should examine the
applicability criteria in 40 CFR 63.11579 of subpart BBBBBBB (NESHAP
for Area Sources: Chemical Preparations Industry). If you have any
questions regarding the applicability of this action to a particular
entity or operations at your

facility, consult either the delegated authority for the entity or your
EPA regional representative as listed in 40 CFR 63.13 of subpart A
(General Provisions).

B. Where Can I Get a Copy of This Document?

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

C. Judicial Review

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

II. Background Information for This Final Rule

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

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

    Consistent with the legislative history, we can consider costs and
economic impacts in determining GACT, which is particularly important
when developing regulations for source categories, like this one, that
have almost 40 percent of firms classified as small businesses
according to the Small Business Administration (SBA) standards in 13
CFR 121.201. For this source category, small businesses are defined as
those with fewer than 500 employees.
    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 employed by those
sources 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 being considered. Finally, as
noted above, in determining GACT for a particular category of area
sources, we consider the costs and economic impacts of using available
control technologies and management practices on sources in that
category.
    We are promulgating these national emission standards in response
to a court-ordered deadline that requires EPA to sign final rules
establishing emission standards for two source categories listed
pursuant to section 112(c)(3) and (k) by December 16, 2009 (Sierra Club
v. Johnson, no. 01-1537, D.D.C., March 2006). We intend to publish a
separate rulemaking in the Federal Register for the other source
category due in December 2009.

III. Summary of Changes Since Proposal

    The final rule contains several revisions and clarifications to the
proposed rule in response to public comments. We explain the reasons
for the following changes in detail in the summary of comments and
responses (section V of this preamble):
     Revised the definition of chemical preparation to mean a
target HAP-containing product, or intermediate used in the manufacture
of other products, manufactured in a process operation described by the
NAICS code 325998 if the operation manufactures target HAP-containing
products or intermediates other than indelible ink, India ink, writing
ink, and stamp pad ink. Indelible ink, India ink, writing ink, and
stamp pad ink manufacturing operations are subject to regulation under
the paints and allied products area source rule (40 CFR part 63,
subpart CCCCCCC), not this rule.
     Revised the emission standard for existing sources to
include an

alternative standard of 0.03 grains per dry standard cubic foot (gr/
dscf) particulate matter (PM) concentration at the outlet of the
control device as an alternative to routing process vent streams to a
control device with a 95 percent PM reduction efficiency.
     Added standards for new sources that require either
routing process vent streams to a control device with a 98 percent PM
efficiency or meeting the 0.03 gr/dscf alternative standard mentioned
above.
     Revised the standards to include a mechanism that allows
sources (which in these standards means the collection of emission
points from chemical preparations operations) to demonstrate and
certify that the process vent streams in the chemical preparation
operations at the facility will not exceed PM concentrations of 0.03
gr/dscf. This revision is intended to significantly reduce monitoring,
recordkeeping and reporting requirements for sources that have, or can
establish, very small process emissions.
     Revised the monitoring requirements to provide options for
the use of bag leak detection systems, audible parameter monitor alarm
systems, or a continuous parameter monitoring system (CPMS). We also
removed the use of a continuous emissions monitoring systems (CEMS) as
an alternative to a CPMS, since we are unaware of any existing chemical
preparations area sources currently using CEMS to monitor PM emissions,
and do not expect any sources to operate a CEMS system to monitor
compliance with the final standards (see discussion in section V.E.).
     Clarified the averaging requirements for sources using a
CPMS so that the average is calculated on the basis of either a 24-hour
rolling period or a batch period (i.e., the period that equipment is
processing a batch of target HAP-containing materials), whichever is
less.
     Revised the reporting requirements to require only annual
reporting if no deviations occur, but semiannual reporting if a
deviation occurred within the reporting period.
     Modified the inspection requirements for vent collection
system ductwork that is difficult or dangerous to access.
     Revised the definition of ``responsible official'' to make
it easier for sources to identify the appropriate person at a chemical
preparations facility.
     Corrected a typographical error in Table 2 to specify that
the PM test method is Method 5, not 5A.
     Corrected a typographical error in Sec.  63.11585 where
there were two paragraphs identified as paragraph (b).
     Clarified the definition of ``chemical preparation'' to
specify that it applies to target HAP-containing products or
intermediates.
     Revised the definition of ``target HAP-containing'' to
clarify separate minimum concentration levels for trivalent and
hexavalent chromium compounds.

IV. Summary of Final Standards

A. Do the Final Standards Apply to My Source?

    The final subpart BBBBBBB standards apply to each existing and new
area source chemical preparations facility, as defined in the final
rule. The standards do not apply to research or laboratory facilities,
as defined in section 112(c)(7) of the CAA. They also do not apply to
chemical preparation operations described by the NAICS code 325998 that
manufacture indelible ink, India ink, writing ink, and stamp pad ink,
which are subject to area source regulations for paints and allied
products (40 CFR part 63, Subpart CCCCCCC).

B. When Must I Comply With the Final Standards?

    All existing area source facilities subject to this final rule are
required to comply with the rule requirements no later than December
30, 2010. New sources are required to comply with the rule requirements
by December 30, 2009 or upon startup of the facility, whichever is
later.
    Because the majority of existing sources in this category are
already well-controlled, we believe that one year is a reasonable
amount of time to allow existing sources to conduct compliance
demonstrations and prepare the initial reports required for compliance
with the final rule.

C. What Are My Final Standards?

    As we explained in the proposed rule, PM is a surrogate for the
target HAP (i.e., metal compounds of chromium, lead, manganese, and
nickel). The final standards for existing sources require process vent
streams from chemical manufacturing processes with equipment that uses,
contains or contacts target HAP to either be routed to a control device
with a 95 percent PM reduction efficiency or to meet an outlet
concentration of 0.03 gr/dscf, with or without control. For new sources
the final standards require these process vent streams to either be
routed to a control device with a 98 percent PM reduction efficiency or
the process vent stream must meet an outlet concentration of 0.03 gr/
dscf, with or without control. On a process by process basis, if an
existing source can demonstrate and certify that the PM concentration
of each of the process vent streams from equipment that uses, contains
or contacts target HAP within a chemical preparation operation will not
exceed 0.03 gr/dscf, then the source is not required to route the
process vent streams to a control device with a 95 percent PM reduction
efficiency. The final rule includes appropriately reduced recordkeeping
and reporting requirements for sources that can comply with the 0.03
gr/dscf alternative standard without the use of a control device.

D. What Are My Initial and Continuous Monitoring Requirements?

    The final standards require an initial compliance assessment that
process vent streams are either being routed to a control device with a
95 percent (98 percent for new sources) PM reduction efficiency or with
an outlet PM concentration of 0.03 gr/dscf, or a certification that
process vent streams from equipment that either contains, contacts, or
is processing target HAP-containing materials will not exceed a PM
concentration of 0.03 gr/dscf. The owner and operator must also
establish parameter values (e.g., liquid flow or pressure drop) for the
control device that will be monitored to demonstrate continuous
compliance or must install a bag system leak detection system or
audible parameter monitoring alarm which indicates failure of the
particulate control system.
    The rule provides alternatives for demonstrating initial
compliance. Specifically, initial compliance assessments to determine
whether the PM percent reduction standard or outlet concentration
standard are being met may consist of performance testing, control
device manufacturer performance guarantees, or engineering
calculations. Sources that opt to demonstrate and certify that the PM
concentration of each of the process vent streams from equipment that
either contains, contacts, or is processing target HAP-containing
materials within a chemical preparation operation will not exceed 0.03
gr/dscf must provide either emission test data or engineering
calculations to support their certification.
    For existing sources, the final standards require owners or
operators to conduct the initial compliance assessment by June 28,
2011. Owners or operators of new sources are required to

conduct compliance assessments by June 28, 2010 or 180 days after
startup, whichever is later.
    The rule provides alternative for demonstrating continuous
compliance. Continuous compliance with the final emission limits is
demonstrated by monitoring control device operating parameters
established during the initial compliance assessment or with a bag leak
detector system. For an existing source that opts to use a CPMS, the
final standards for demonstrating continuous compliance are based upon
an overall average per batch or over 24 hours, whichever is less, when
the equipment either contains, contacts, or is processing target HAP-
containing materials. As alternatives to a CPMS, sources must install
either a bag leak detection system, such as a triboelectric monitor and
alarm, or a parameter monitor alarm that will alert operators of
periods when the device parameters (such as pressure drop or scrubber
liquid flow rate) are outside the operating upper or lower threshold or
range specified by the control device manufacturer.
    In the final rule, sources certifying that the particulate matter
concentration of each of the process vent streams from equipment that
uses, contains or contacts target HAP within a chemical preparation
operation will not exceed 0.03 gr/dscf have appropriately reduced duct
collection system inspection requirements to ensure that the basis for
the grain loading does not change. In addition, they must record
material loss information that supports their certification for each
subsequent quarter and must continue to operate in accordance with
their certifications.

E. What Are My Notification, Recordkeeping, and Reporting Requirements?

    Affected new and existing sources are required to comply with
certain reporting requirements set forth in this final rule as well as
certain requirements set forth in the General Provisions (40 CFR part
63, subpart A), as identified in Tables 5 and 6 of this final rule. The
General Provisions include specific requirements for notifications,
recordkeeping, and reporting. Among other requirements, each facility
is required to submit an initial notification that complies with the
requirements in 40 CFR 63.9(b) of the General Provisions within 120
days of the effective date of the final rule and a notification of
compliance status that complies with the requirements in 40 CFR 63.9(h)
within 60 days after completion of the initial compliance assessment.
Sources must keep records to identify periods when equipment contains,
contacts, or is processing target HAP-containing materials, as well as
records of control device performance guarantees, inspections and
monitoring system calibrations for CPMS, if applicable. Facilities are
also required to submit semi-annual compliance summary reports if a
deviation occurs within the reporting period. If no deviation occurs,
then annual compliance summary reports must be submitted.
    Sources certifying that the particulate matter concentration of
each of the process vent streams from equipment that either contains,
contacts, or is processing target HAP-containing materials within a
chemical preparation operation will not exceed 0.03 gr/dscf have
appropriately reduced recordkeeping and reporting requirements.

F. What Are the Title V Permit Requirements?

    This final rule exempts the chemical preparations manufacturing
area source category from title V permitting requirements unless the
affected source is otherwise required by law to obtain a title V
permit. For example, sources that have title V permits because they are
major sources under the criteria pollutant program would maintain those
permits.

V. Summary of Comments and Responses

    During the comment period on the proposed rule, we received eleven
comment letters, which were submitted by industry, small business
environmental assistance programs and environmental advocacy groups.
Sections V.A. through V.H. summarize some of the more significant
comments and explain our response. For comment summaries and responses
not addressed in this preamble, see the response to comment document in
the docket for this rule, Docket ID No. EPA-HQ-OAR-2009-0028.

A. Source Category Listing and Applicability

    Comment. Several commenters contended that EPA did not provide the
opportunity to comment on the addition of the chemical preparations
source category to the area source category list and that chemical
preparations should not be regulated as a source category per sections
112(c)(3) and 112(k)(3)(B)(ii) of the CAA.
    Response. We listed the chemical preparations source category on
November 22, 2002, under CAA section 112(c)(3) in one of a series of
amendments (67 FR 70427) to the original source category list included
in the 1999 Integrated Urban Air Toxics Strategy, for which there was
opportunity to comment. We included this source category on the section
112(c)(3) area source category list, based upon emissions data for the
1990 baseline year, for its contribution toward meeting the CAA section
112(c)(3)'s requirement that we list sufficient categories and
subcategories of 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 CAA section 112. The
chemical preparations area source category was listed for its
contributions toward meeting the 90 percent requirement for compounds
of chromium, manganese, lead and nickel. The commenters in this case
were concerned that this source category would overlap with other
source categories for which they are subject. The overlap concerns are
addressed in the following comment response.
    Comment. Several commenters contended that the chemical
preparations area source category as defined in the proposed rule
overlaps with the chemical manufacturing and paint and allied products
source categories and advocated that the applicability of the rule be
further clarified to avoid confusion regarding which area source
regulation applies to a particular operation.
    Response. When the chemical preparations area source category was
initially listed, it was identified as consisting of facilities covered
by standard industrial classification (SIC) code 2899. We subsequently
moved to the use of North American Industrial Classification System
(NAICS) codes, rather than SIC codes, to identify the types of
facilities included in a particular area source category. SIC codes are
translated to NAICS codes using the U.S. Census Bureau's ``bridge''.
The ``bridge'' correlates the four-digit SIC code to the corresponding
six-digit NAICS code or codes. As discussed in the background
information document for the proposal (See Docket EPA-HQ-OAR-2009-
0028), under the ``bridge'' the 2899 SIC code translates to four
separate NAICS codes (311942--Spice and extract manufacturing, 325199--
All other basic organic chemical manufacturing, 325510--Paint and
coating manufacturing, 325998--All other miscellaneous chemical product
and preparation manufacturing). As a result,

at the time of proposal, we believed that it was possible for the
chemical preparations source category to consist of operations that
could be classified under one of these four possible North American
Industrial Classification System (NAICS) codes, depending on the
product or intermediate the operation was producing. In the proposed
rule, we, therefore, identified all four categories as potentially
containing sources subject to the chemical preparations area source
rule. Based on comments we received on the proposal, however, we now
recognize that the chemical preparations area source category as listed
consists exclusively of sources classified by NAICS code 325998. (For a
more detailed discussion of the circumstances, see the final technical
support document included in the docket for this final rule.) We also
realized that the NAICS code 311942, spice and extract manufacturing,
is not a source of target HAP emissions, since operations conducted at
facilities included in that NAICS code produce table salt and other
food products. In addition, we have determined that sources in NAICS
code 325999 are subject to the chemical manufacturing area source rule
(40 CFR part 63, subpart VVVVVV) and that sources in NAICS code 325510
are subject to the paint and allied products area source rule (40 CFR
part 63, subpart CCCCCCC). For these reasons, this final rule only
applies to facilities classified by NAICS code 325998. (40 CFR 63.11579
and 63.11588.) Based on these comments, we also recognized that even
within the 325998 NAICS code there was some overlap with the paint and
allied products area source rule (40 CFR part 63, subpart CCCCCCC).
Specifically, we recognized that sources in the 325998 NAICS code that
manufacture indelible ink, India ink, writing ink, and stamp pad ink
are subject to regulation under the paint and allied products area
source rule. (40 CFR 63.11599) Operations at sources in the 325998
NAICS code that manufacture indelible ink, India ink, writing ink, or
stamp pad ink, or any combination thereof, are, therefore, not subject
to this final rule. (40 CFR 63.11579 and 63.11588.)
    To facilitate these changes, the definition of ``chemical
preparation'' in the final rule has been revised to read as follows:
    Chemical preparation means a target HAP-containing product, or
intermediate used in the manufacture of other products, manufactured in
a process operation described by the NAICS code 325998 if the operation
manufactures target HAP-containing products or intermediates other than
indelible ink, India ink, writing ink, and stamp pad ink. Indelible
ink, India ink, writing ink, and stamp pad ink manufacturing operations
are subject to regulation by the paints and allied products area source
rule (40 CFR part 63, subpart CCCCCCC).

B. Alternative Standards

    Comment. Several commenters asked questions regarding whether their
operations were subject to the rule and, presuming their operations
were subject, expressed support for including an alternative compliance
option based on a PM concentration. One commenter described an
operation where liquids containing target HAP compounds were mixed in a
closed tank. According to the commenter, PM matter is not emitted from
this mixing operation. The commenter further stated that demonstrating
95 percent control would be difficult, since there were no discernable
PM emissions from this operation.
    Response. We agree with the commenter, and have added an
alternative standard of 0.03 gr/dscf PM concentration to the final
rule. Sources may either meet the requirement to route the process vent
stream to a control device with a 95 percent PM reduction efficiency or
the 0.03 gr/dscf PM concentration standard. Furthermore, sources
demonstrating and providing a certification statement that each of the
process vent streams from equipment that either contains, contacts, or
is processing target HAP-containing materials within a chemical
preparation operation will not exceed 0.03 gr/dscf have appropriately
reduced reporting, recordkeeping and inspection requirements (to ensure
that the basis for the PM concentration certification does not change).

C. GACT Limits

    Comment. One commenter contends that, ``EPA failed to calculate any
potential HAP reductions from the proposed rule, because the proposed
rule will not actually lead to any reductions.'' The commenter believes
that the proposed rule is `` * * * to preserve the status quo * * *''
and that the level of control currently in place is the accepted level
of control.
    Response. The commenter does not challenge any aspect of EPA's
proposed GACT determination for this area source category. Instead, the
commenter makes a blanket assertion that EPA is not acting consistently
with the purposes of the area source provisions in the CAA (i.e.,
sections 112(c)(3) and 112(k)(3)(B)), because it is not requiring
emission reductions beyond the level that is currently being achieved
from this well-controlled source category. In support of this
assertion, the commenter compares the requirements in the proposed rule
to the area source category's current emission and control status. Such
a comparison is flawed.
    Congress promulgated the relevant CAA area source provisions in
1990 in light of the level of area source HAP emissions at that time.
Congress directed EPA to identify not less than 30 HAP which, as a
result of emissions from area sources, present the greatest threat to
public health in the largest number of urban areas, and to list
sufficient area source categories to ensure that area sources
representing 90 percent of the 30 HAP listed are subject to regulation.
As explained in the Integrated Urban Air Toxics Strategy, EPA based its
listing decisions on the baseline National Toxics Inventory (NTI) that
the Agency compiled for purposes of implementing its air toxics program
after the 1990 CAA Amendments (64 FR 38706, 38711, n.10). The baseline
NTI reflected HAP emissions from chemical preparations manufacturing
area sources in 1990. Thus, contrary to the commenter's suggestion, the
relevant emission level for comparison is the emission level reflected
in our baseline NTI, not the current emission level.
    Furthermore, in promulgating the area source provisions in the CAA,
Congress did not require EPA to issue area source standards that must
achieve a specific level of emission reduction. Rather, Congress
authorized EPA to issue standards under section 112(d)(5) for area
sources that reflect GACT for the source category. To qualify as being
generally available, a GACT standard would most likely be an existing
control technology or management practice: ``[A]n equipment standard
would require neighborhood dry cleaning establishments to employ the
commercially available systems associated with the lowest measured
emissions * * *. S. Rep. 101-128, at 171-172 (emphasis added). Thus, it
is both reasonable and consistent with Congressional intent that the
GACT-based standards being finalized today codify the use of the
existing effective PM control approach being used by sources in the
category. For all of these reasons, this final rule is consistent with
sections 112(c)(3), 112(k)(3)(B), and 112(d)(5).
    Comment. One commenter asserted that, although section 112(d)(5)
does authorize EPA to issue GACT standards in lieu of maximum
achievable control

technology (MACT) standards, the Agency's decision to do so is subject
to familiar administrative law requirements. The commenter maintained
that to be non-arbitrary, the decision must--at a minimum--be supported
by a rational explanation. The commenter stated that EPA has provided
no explanation whatsoever for its apparent decision to issue GACT
standards instead of MACT standards and, for this reason alone, its
decision is arbitrary and capricious.
    The commenter stated that EPA's decision to issue GACT standards
pursuant to CAA section 112(d)(5), instead of MACT standards pursuant
to section 112(d)(2) and (3), is arbitrary and capricious because EPA
provided no rationale for its decision to issue GACT standards. The
commenter also claimed that the proposed standards are based solely on
cost and are thus unlawful and arbitrary. The commenter claims that CAA
section 112(d)(5) does not direct EPA to set standards based on what is
cost effective; rather, according to the commenter EPA must establish
GACT based on the ``methods, practices and techniques which are
commercially available and appropriate for application by the sources
in the category considering economic impacts.'' The commenter stated
that, because cost effectiveness is not relevant under CAA section
112(d)(5), the reliance on cost effectiveness as the sole determining
factor in establishing GACT renders the proposed standards unlawful.
    Response. As the commenter recognizes, in section 112(d)(5),
Congress gave EPA explicit authority to issue alternative emission
standards for area sources. Specifically, section 112(d)(5), which is
titled, ``Alternative standard for area sources,'' provides:

    With respect only to categories and subcategories of area
sources listed pursuant to subsection (c) of this section, the
Administrator may, in lieu of the authorities provided in paragraph
(2) and subsection (f) of this section, elect to promulgate
standards or requirements applicable to sources in such categories
or subcategories which provide for the use of generally available
control technologies or management practices by such sources to
reduce emissions of hazardous air pollutants. See CAA section
112(d)(5).

    There are two critical aspects to section 112(d)(5). First, section
112(d)(5) applies only to those categories and subcategories of area
sources listed pursuant to section 112(c). The commenter does not
dispute that EPA listed the chemical preparations area source category
pursuant to section 112(c). Second, section 112(d)(5) provides that,
for area sources listed pursuant to section 112(c)(3), EPA ``may, in
lieu of'' the authorities provided in section 112(d)(2) and 112(f),
elect to promulgate standards pursuant to section 112(d)(5).
    Section 112(d)(2) provides that emission standards established
under that provision ``require the maximum degree of reduction in
emissions'' of HAP (also known as MACT). Section 112(d)(3), in turn,
defines what constitutes the ``maximum degree of reduction in
emissions'' for new and existing sources. See section 112(d)(3).
Webster's dictionary defines the phrase ``in lieu of'' to mean ``in the
place of'' or ``instead of.'' See Webster's II New Riverside University
(1994). Thus, section 112(d)(5) authorizes EPA to promulgate standards
under section 112(d)(5) that provide for the use of GACT, instead of
issuing MACT standards pursuant to section 112(d)(2) and (d)(3). The
statute does not set any condition precedent for issuing standards
under section 112(d)(5) other than that the area source category or
subcategory at issue must be one that EPA listed pursuant to section
112(c)(3), which is the case here.
    The commenter argues that EPA must provide a rationale for issuing
GACT standards under section 112(d)(5), instead of MACT standards. The
commenter is incorrect. Had Congress intended that EPA first conduct a
MACT analysis for each area source category, Congress would have stated
so expressly in section 112(d)(5). Congress did not require EPA to
conduct any MACT analysis, floor analysis or beyond-the-floor analysis
before the Agency could issue a section 112(d)(5) standard. Rather,
Congress authorized EPA to issue GACT standards for area source
categories listed under section 112(c)(3), and that is precisely what
EPA has done in this rulemaking.
    Although EPA need not justify its exercise of discretion in
choosing to issue a GACT standard for an area source listed pursuant to
section 112(c)(3), EPA still must have a reasoned basis for the GACT
determination for the particular area source category. The legislative
history supporting section 112(d)(5) provides that GACT is to
encompass:

    * * * methods, practices and techniques which are commercially
available and appropriate for application by the sources in the
category considering economic impacts and the technical capabilities
of the firms to operate and maintain the emissions control systems.
See Senate Report on the 1990 Amendments to the Act (S. Rep. No.
101-228, 101st Cong. 1st session. 171-172). The discussion in the
Senate report clearly provides that EPA may consider costs in
determining what constitutes GACT for the area source category.

    Congress plainly recognized that area sources differ from major
sources, which is why Congress allowed EPA to consider costs in setting
GACT standards for area sources under section 112(d)(5), but did not
allow that consideration in setting MACT floors for major sources
pursuant to section 112(d)(3). This important dichotomy between section
112(d)(3) and section 112(d)(5) provides further evidence that Congress
sought to do precisely what the title of section 112(d)(5) states--
provide EPA the authority to issue ``[a]lternative standards for area
sources.''
    Notwithstanding the commenter's claim, EPA properly issued
standards for the area source category at issue here under section
112(d)(5) and in doing so provided a reasoned basis for its selection
of GACT for the chemical preparations area source category. As
explained in the proposed rule and below, EPA evaluated the control
technologies and management practices that reduce PM emissions at
chemical preparations manufacturing facilities. In its evaluation, EPA
used information from industry contacts and reviewed operating permits
to identify the emission controls and management practices that are
currently used to control PM emissions.
    In our evaluation, we determined that all of the chemical
preparations operations are currently controlled with either a fabric
filter or wet scrubber.
    The commenter further argues that EPA inappropriately chose GACT
based solely on costs, and, according to the commenter, cost is not
relevant to GACT determinations and as such the standards are unlawful.
We disagree. Contrary to the commenter's assertions, the Agency's
consideration of cost effectiveness in establishing GACT and the
Agency's views on what is a cost effective requirement under section
112(d)(5) are relevant. The U.S. Court of Appeals for the DC Circuit
has stated that cost effectiveness is a reasonable measure of cost as
long as the statute does not mandate a specific method of determining
cost. See Husqvarna AB v. EPA, 254 F.3d 195, 201 (DC Cir. 2001)
(finding that EPA's decision to consider costs on a per ton of
emissions removed basis is reasonable because CAA section 213 did not
mandate a specific method of cost analysis).
    The commenter also failed to provide any information indicating
that our cost-effectiveness determinations were unreasonable and,
likewise, failed to provide any information concerning the

economic impacts associated with requiring the standards that the
commenter suggests represent GACT. The commenter appears to take issue
with the manner in which the Agency establishes GACT but provides no
alternative approach, instead only attacking the Agency's consideration
of cost (i.e., cost-effectiveness) as a consideration in the
establishment of GACT. The Agency proposed GACT standards for the
chemical preparations area source category that were established
consistent with the requirements of CAA section 112(d)(5).
    Finally, even though not required, EPA did provide a rationale for
why it set a GACT standard in the proposed rule. In the proposal, we
explained that the facilities in the chemical preparations area source
category 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 74 FR 39018 through and 39019. Consideration of costs and economic
impacts is especially important for the well-controlled area sources at
issue in this final action. Given the current, well-controlled emission
levels, a MACT floor determination, where costs cannot be considered,
could result in only marginal reductions in emissions at very high
costs for the area source category.

D. Initial Compliance

    Comment. Several commenters contended that EPA proposed a very
short compliance deadline for existing sources--only one year from
issuance of the final rule. The commenters argue that the proposed one-
year compliance deadline is premised upon EPA's assumption, which they
do not agree with, that sources will not have to install or modify air
pollution control or monitoring equipment to meet the standards.
    Response. We generally disagree, particularly when additional
flexibilities included in the final rule are considered. The comment
appears to be premised on an incorrect assumption that new control
devices will need to be installed to comply with the PM emission
limits. We continue to believe that additional add-on controls will not
be needed to comply with the final GACT standards, particularly since
we revised the proposed GACT limits by providing an alternative PM
concentration limit. Likewise, we have revised the proposed monitoring
requirements by providing compliance alternatives for existing and new
facilities. Sources may use a CPMS, a bag leak detection system or a
parameter monitor alarm system that notifies the operator when the
device is operating outside the manufacturer's recommended range. A bag
leak detection system or parameter monitor alarm systems are
significantly less complicated to install and operate than a CPMS and
provide a comparable level of assurance that the source is operating in
compliance with applicable requirements. Sources that already operate
CPMS have the option of continuing to use their existing system to
demonstrate compliance. Consequently, we believe that the proposed
compliance deadline of 1 year is adequate.

E. Continuous Monitoring, Inspections and Reporting

    Comment. One commenter stated that CEMS are not applicable to small
chemical preparations operations.
    Response. We agree with the commenter that current permit data do
not support requiring CEMS for existing sources. The final rule does
not contain any CEMS requirements.
    Comment. Several commenters contended that the use of CPMS was
uncommon at existing chemical preparations facilities, and that the
costs of installing these systems were not accounted for in the
proposed rule.
    Response. We agree that requiring CPMS installation and operation
for existing sources that do not already utilize such a system to
monitor their control device's performance may not be economically
feasible based upon data from the commenters. As a result, we have
revised the rule so that existing and new sources can demonstrate
continuous compliance through the use of any of the following: (1) A
CPMS; (2) a bag leak detection system that notifies operators when a
leak is detected; or (3) a parameter monitor with an audible alarm that
notifies operators when a monitored control device parameter, such as
pressure drop or scrubber liquid flow rate, is outside of the control
device manufacturer's recommendations. Note that neither the bag leak
detection system nor the parameter monitor alarm systems require a data
acquisition and handling system to function properly, which, according
to commenters, is the predominant portion of the cost of a CPMS.
    Comment. Several commenters contended that the inspection
requirements were too burdensome, arguing that the vent collection
system may be difficult to access or inspect and that inspections are
unnecessary because the vent collection systems are induced draft
systems.
    Response. We disagree that the proposed requirements are too
burdensome. The required inspections are simple external visual
assessments of the integrity of the collection system. This should be
easily accomplished by sources. While these may be induced draft
systems, we believe that they still warrant inspection. For example, an
inspection can identify points along the ductwork where PM may be
building up inside the duct and consequently falling out of leaks in
the ductwork, indicating not only the existence of a possible leak, but
that the amount of vacuum that the system was designed to induce is not
being achieved. We do, however, recognize the need for inspection
safety and have added provisions to the final rule that reduce
inspection requirements for sections of ductwork that are deemed to be
unsafe or difficult to inspect.
    Comment. Several commenters contended that semiannual reporting is
too burdensome for area sources and is more appropriate for major
source requirements.
    Response. We have revised the final rule reporting requirements so
that sources must submit an annual report instead of semi-annual
reports if no deviations occur. If a deviation occurs, then a semi-
annual report must be submitted that summarizes the deviation and
describes the corrective actions taken by the facility.

F. Title V Permitting

    Comment. One commenter argued that the agency's proposal to exempt
the chemical preparations area source category from title V
requirements is unlawful and arbitrary. The commenter states that
section 502(a) of the CAA authorizes EPA to exempt area source
categories from title V permitting requirements if the Administrator
finds that compliance with such requirements is ``impracticable,
infeasible or unnecessarily burdensome.'' 42 U.S.C. section 7661a(a).
The commenter notes that EPA did not claim that title V requirements
are impracticable or infeasible for the chemical preparations area
source category it proposes to exempt, but that EPA instead relied
entirely on its claim that title V 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. See 42 U.S.C. section 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. 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.'' For the reasons explained in the preamble to the proposed rule,
we believe that it is appropriate to exempt sources in the chemical
preparation area source category, which are not otherwise required to
have a title V permit, from title V permitting and, on that basis, have
retained the exemption in the final rule.
    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 the chemical preparations area source category 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/she determines that compliance with title V
requirements is ``impracticable, infeasible, or unnecessarily
burdensome'' on an area source category. See CAA section 502(a). In
December 2005, in a national rulemaking, EPA interpreted the term
``unnecessarily burdensome'' in CAA section 502 and developed a four
factor balancing test for determining whether title V is unnecessarily
burdensome for a particular area source category, such that an
exemption from title V is appropriate. See 70 FR 75320, December 19,
2005 (``Exemption Rule''). In addition to interpreting the term
``unnecessarily burdensome'' and developing the four factor balancing
test in the Exemption Rule, EPA applied the test to certain area source
categories.
    The four factors that EPA identified in the Exemption Rule for
determining whether title V is unnecessarily burdensome on a particular
area source category include: (1) Whether title V would result in
significant improvements to the compliance requirements, including
monitoring, recordkeeping, and reporting, that are proposed for an area
source category (70 FR 75323); (2) whether title V permitting would
impose significant burdens on the area source category and whether the
burdens would be aggravated by any difficulty the sources may have in
obtaining assistance from permitting agencies (70 FR 75324); (3)
whether the costs of title V permitting for the area source category
would be justified, taking into consideration any potential gains in
compliance likely to occur for such sources (70 FR 75325); and (4)
whether there are 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 August 5, 2009 proposed rule for the chemical
preparation area source category. Rather, we applied the four factor
balancing test articulated in the Exemption Rule to this source
category. Had we sought to re-open our interpretation of the term
``unnecessarily burdensome'' in CAA section 502 and modify it from what
was articulated in the Exemption Rule, we would have stated so in the
August 5, 2009 proposed rule and solicited comments on a revised
interpretation, which we did not do. Accordingly, we reject the
commenter's attempt to create a new test for determining what
constitutes ``unnecessarily burdensome'' under CAA section 502, as that
issue falls outside the purview of this rulemaking.
    Moreover, had the comment been framed as a request to reopen our
interpretation of the term ``unnecessarily burdensome'' in CAA section
502, which it was not, we would deny such request because we have a
court-ordered deadline to complete this rulemaking by December 16,
2009. In any event, although the commenter espouses a new
interpretation of the term ``unnecessarily burdensome'' in CAA section
502 and attempts to create a new test for determining whether the
requirements of title V are ``unnecessarily burdensome'' for an area
source category, the commenter does not explain why EPA's
interpretation of the term ``unnecessarily burdensome'' is arbitrary,
capricious or otherwise not in accordance with law. We maintain that
our interpretation of the term ``unnecessarily burdensome'' in section
502, as set forth in the Exemption Rule, is reasonable.
    Comment. One commenter 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 even acknowledge these
benefits of title V, far less explain why they are unnecessary, and
that, for this reason alone, EPA's proposed exemptions are unlawful and
arbitrary.
    Response. Once again, the commenter attempts to create a new test
for determining whether the requirements of title V are ``unnecessarily
burdensome'' on an area source category. Specifically, the commenter
argues that EPA does not claim or demonstrate with substantial evidence
that citizens would have the same access to information and the same
ability to enforce under these NESHAP, absent title V. The commenter's
position represents a significant revision of the fourth factor that
EPA developed in the Exemption Rule in interpreting the term
``unnecessarily burdensome'' in CAA section 502. For all of the reasons
explained above, the commenter's attempt to create a new test for EPA
to meet in determining whether title V is ``unnecessarily burdensome''
on an area source category cannot be sustained. This rulemaking did not
re-open EPA's interpretation of the term ``unnecessarily burdensome''
in CAA section 502. EPA reasonably applied the four factors to the
facts of the chemical preparation area source category, and the
commenter has not identified any flaw in EPA's application of the four
factor test.
    Moreover, as explained in the proposal, 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 74 FR 39021.
    In applying the fourth factor here, EPA determined that there are
adequate enforcement programs in place to assure compliance with the
CAA. As stated in the proposal, we believe that State-delegated
programs are sufficient to assure compliance with the NESHAP and that
EPA retains authority to enforce this NESHAP under the CAA. See 74 FR
39021. We also indicated that States and EPA often conduct voluntary
compliance assistance, outreach, and education programs to assist
sources and that these additional programs will supplement and enhance
the success of compliance with this NESHAP. See 74 FR 39021. The
commenter does not challenge the conclusion that there are adequate
State and Federal programs in place to ensure compliance with and
enforcement of 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 indicating 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, which we
dispute, 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
this NESHAP. Furthermore, the fourth factor is just one of the factors
that we evaluated in determining if the title V requirements were
unnecessarily burdensome. As explained above, we considered that factor
together with the other factors and determined that it was appropriate
to finalize the proposed exemption for the chemical preparation area
source category.
    Comment. One commenter explained that title V provides important
monitoring benefits, and, according to the commenter, EPA assumes that
title V monitoring would not add any monitoring requirements beyond
those required by the regulations for the source category. The
commenter said that in its proposal EPA proposed ``using parametric
monitoring'' of either process changes or add-on controls. 74 FR at
39020. The commenter further states that ``EPA argues that its proposed
standard, by including these requirements, provides monitoring
`sufficient to assure compliance' with the proposed rule. Id. At 39021.
The commenter maintains that EPA made conclusory assertions and that
the Agency failed to provide any evidence to demonstrate that the
proposed monitoring requirements will assure compliance with the NESHAP
for the exempt sources. The commenter stated that, for this reason as
well, EPA's claim that title V requirements are ``unnecessarily
burdensome'' is arbitrary and capricious, and the exemption is unlawful
and arbitrary and capricious.
    Response. The EPA used the four factor test to determine if title V
requirements were unnecessarily burdensome for the chemical preparation
area source category. In the first factor, EPA considers whether
imposition of title V requirements would result in significant
improvements to the compliance requirements that are proposed for the
area source category. 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.
    The commenter asserts that ``EPA argues that its proposed standard,
by including these requirements, provides monitoring `sufficient to
assure compliance' with the proposed rule.'' EPA does in fact believe
that the requirements in the proposed standard, which are carried
forward in this final rule, provide monitoring ``sufficient to assure
compliance.'' The commenter does not provide any evidence that
contradicts this conclusion.
    Based on the foregoing, 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.
We believe that the monitoring, recordkeeping and reporting
requirements in this area source rule are sufficient to assure
compliance. For the reasons described above and in the proposed rule,
the first factor supports exempting this area source category from
title V requirements. Further, as explained above, we determined that
the factors, weighed together, support exemption of the chemical
preparations area source category from title V.
    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 (74 FR 39021). 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 an 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 takes out of context certain statements in
the proposed rule concerning the factors used in the balancing test to
determine if imposition of title V permitting requirements is
unnecessarily burdensome for the chemical preparations area source
category. The commenter also mischaracterizes the first factor of the
four factor balancing test with regard to determining whether
imposition of title V would result in significant improvements in
compliance. In addition, the commenter mischaracterizes the analysis in
the third factor of the balancing test which instructs EPA to take into
account any gains in compliance that would result from the imposition
of the title V requirements.
    First, EPA nowhere states, nor does it believe, that title V never
confers additional compliance benefits as the commenter asserts.
Rather, EPA considered potential additional compliance benefits
resulting from requiring a title V permit for sources in the chemical
preparations area source category and, nevertheless, concluded that
requiring title V permits would be unnecessarily burdensome.
    Second, the commenter mischaracterizes the first factor by
asserting that EPA must demonstrate that title V will provide no
additional compliance benefits. 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 believes that the monitoring, recordkeeping, and reporting
requirements in the final rule are sufficient both to assure compliance
with the requirements of the rule and to allow the public the
opportunity to obtain knowledge about the source, consistent with two
of the goals of title V permitting. For example, in the Initial
Notification, the source must identify its size, whether it must meet
any of the GACT requirements in the rule, and how it plans to comply
with applicable rule requirements. The source must certify how it is
complying with the rule and that it has complied with the requirements
to: (1) Establish recordkeeping to demonstrate compliance with the
emission limits; (2) establish monitoring of the controls as required;
and, (3) establish recordkeeping regarding the parametric monitoring
requirements. The source must keep records to document ongoing
compliance with the emission limits finalized in this rule. The source
must also submit semi-annual or annual compliance reports to the
permitting agency. This information is available to the public once the
source has filed the required compliance reports with the permitting
agency.
    The EPA believes that these requirements in the rule itself,
including the requirement to provide information about the source's
compliance that is available to the public, are sufficient to ensure
compliance with the requirements of the rule, and does not feel that
title V requirements, if applicable to these sources, would offer
significant improvements in compliance.
    Third, the commenter incorrectly characterizes our statements in
the proposed rule concerning our application of 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 other words, EPA must consider the costs of title V
permitting requirements in conjunction with any improvement in
compliance above what the rule requires and, on that basis, determine
whether those costs would be justified. EPA determined that
approximately 40 percent (10 of the 26) of the sources that EPA
believes would be subject to the chemical preparations area source rule
are small businesses with limited resources. As stated in the proposal
(74 FR 39021), EPA estimated that the average cost of obtaining and
complying with a title V permit was $65,700 per source for a 5-year
permit period, including fees. See Information Collection Request for
Part 70 Operating Permit Regulations, 72 FR 32290, June 12, 2007, EPA
ICR Number 1587.07. Based on this information, EPA determined that
there is a significant cost burden to the industry to require title V
permitting for all the sources subject to the rule. In addition, in
analyzing factor one, EPA found that imposition of the title V
requirements offers no significant improvements in compliance. In
considering the third

factor, we stated in part that, ``Because the costs, both economic and
non-economic, of compliance with title V are high for any small entity,
and the potential for gains in compliance is low, title V permitting is
not justified for this source category. Accordingly, the third factor
supports title V exemptions for this area source category.'' See 74 FR
39021.
    Most importantly, EPA considered all four factors in the balancing
test in determining whether title V was unnecessarily burdensome on the
chemical preparations area source category. EPA found it reasonable
after considering all four factors to exempt this source category from
the permitting requirements in title V. 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 chemical preparations source category, the
comments provide no basis for the Agency to reconsider its proposal to
exempt the area source category from title V.
    Comment. According to one commenter, ``[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.'' 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, the Agency's argument
boils down to the generic and conclusory claim that it generally views
title V requirements as unnecessary. The commenter stated that, while
this may be EPA's view, it was not Congress' view when Congress enacted
title V, and a general view that title V is unnecessary 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. In
any event, as explained above, we believe the Agency's interpretation
of the term ``unnecessarily burdensome'' is a reasonable one. In
addition, our determination to exempt the chemical preparations area
source category from title V is specific to this rule, and is not, as
the commenter suggests, reflective of a general view that title V
requirements are unnecessary. We review the facts of each area source
category individually in determining whether to exempt the category, or
a portion of the category, from the requirements of title V pursuant to
section 502. To the extent the commenter asserts that our application
of the fourth factor is flawed, we disagree. The fourth factor involves
a determination as to whether there are implementation and enforcement
programs in place that are sufficient to assure compliance with the
rule without relying on the title V permits. In discussing the fourth
factor in the proposal, EPA states that, prior to delegating
implementation and enforcement to a State, EPA must ensure that the
State has programs in place to enforce the rule. EPA believes that
these programs will be sufficient to assure compliance with the rule.
EPA also retains authority to enforce this NESHAP anytime under CAA
sections 112, 113 and 114. EPA also noted other factors in the proposal
that together are sufficient to assure compliance with this area source
standard.
    The commenter argues that EPA cannot exempt this area source from
title V permitting requirements 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.'' As an initial matter, EPA cannot exempt
major sources from title V permitting 42 U.S.C. 502(a). As for area
sources, the standard that the commenter proposes--that EPA must show
that ``title V compliance is unnecessary''--is not consistent with the
standard the Agency established in the Exemption Rule and applied in
the proposed rule in determining if title V requirements are
unnecessarily burdensome for the chemical preparations area source
category.
    Furthermore, we disagree that the basis for excluding the chemical
preparations area source category from title V requirements is
generally applicable to any source category. As explained in the
proposal preamble and above, we balanced the four factors considering
the facts and circumstances of the chemical preparations area source
category. For example, in assessing whether the costs of requiring the
sources to obtain a title V permit was burdensome, we concluded that,
because approximately 40 percent (10 of the 26) of the sources were
small businesses with limited resource, the costs imposed on the source
category were significant compared to the additional compliance
benefits offered by the title V permitting process.
    Comment. One commenter stated that the legislative history of 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. 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 or not.
    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, the
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 or her 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 chemical preparations area source
category and concluded that requiring title V for this area source
category would be unnecessarily burdensome.
    In addition to determining that title V would be unnecessarily
burdensome on sources in the chemical preparations area source
category, consistent with the Exemption Rule, EPA also considered
whether exempting the chemical preparations area source category from
title V would adversely affect public health, welfare or the
environment. As explained in the proposal preamble, we concluded that
exempting the chemical preparations area source category from title V
would not adversely affect public health, welfare or the environment
because the level of control would be the same even if title V applied.
We further explained that the title V permit program does not generally
impose new substantive air quality control requirements on sources, but
instead requires that certain procedural measures be followed,
particularly with respect to determining compliance with applicable
requirements. The commenter has not provided any information that
demonstrates that exemption of the chemical preparations area source
category from title V will adversely affect public health, welfare or
the environment.

G. Cost Impacts

    Comment. Several commenters stated that compliance costs are
underestimated for sources that currently do not have monitoring
systems and/or controls.
    Response. We generally disagree, particularly considering
additional flexibilities that are included in the final rule. The
commenter's assertion appears to be premised on the commenters'
assumption that sources will need to install new control devices. As we
indicated in the proposed rule, we do not believe that this will be the
case. Further, with the inclusion of the alternative 0.03 gr/dscf PM
standard, along with the options for demonstrating ongoing compliance
other than CPMS available in the final rule, we believe that no new
capital costs should be factored into the analysis. As such, we believe
that the compliance costs previously estimated for the proposed rule
are a reasonable estimate of the cost of complying with this rule.

H. Miscellaneous

    Comment. One commenter requested that EPA be more specific as to
the chemical by giving a chemical abstracts service (CAS) number.
According to the commenter, this will make it more specific and direct
(i.e., is trivalent chromium applicable as chromium or not). The
commenter proceeds to say that giving the CAS numbers and stating the
fact that only these specific CAS numbers are applicable to the rule
would clarify applicability. The commenter, along with another
commenter, also questioned whether there are distinctions between
trivalent and hexavalent chromium compounds in the rule. One commenter
noted that the de minimis thresholds are different in OSHA requirements
and the Toxics Release Inventory's (TRI's) reporting requirements.
Several commenters asked, in general, whether there were going to be de
minimis exemptions provided in the applicability requirements of the
rule.
    Response. The CAA specifically lists ``chromium compounds'' as a
hazardous air pollutant. In our original listing for the Urban Air
Toxics Strategy (64 FR 38706, July 19, 1999), we listed ``chromium
compounds'' as one of the Urban HAP targeted for the Integrated Urban
Air Toxics Strategy. CAA section 112(c)(3) requires us to list source
categories accounting for 90 percent of the emissions of each of the
listed urban HAP, including chromium compounds. As explained above, we
need the chemical preparations area source category at issue here to
reach the 90 percent requirement in CAA section 112(c)(3) for chromium
compounds. Many of our control strategies for chromium and other metal
HAP involve the use of PM as a surrogate for chromium and other metal
HAP. These PM control strategies control all chromium compounds along
with PM and other metal HAP, therefore the form of chromium would not
change the type of PM control strategy we choose. In summary, although
we recognize the differences in the health effects of hexavalent and
trivalent chromium, we are required to regulate chromium compounds from
the chemical preparations area source category at issue in this rule.
    As we have pointed out in several other area source rulemakings,
the CAA section 112(k) inventory was primarily based on the 1990 TRI,
and that is the case for the chemical manufacturing area source
categories as well. The reporting requirements for the TRI do not
include de minimis concentrations of toxic chemicals in mixtures, as
reflected in the above concentration levels; therefore, the CAA section
112(k) inventory would not have included emissions from operations
involving chemicals below these concentration levels. See 40 CFR
372.38, Toxic Chemical Release Reporting: Community Right-To-Know
(Reporting Requirements). Accordingly, the percentages noted in the
definition of ``target HAP-containing'' define the scope of the listed
source category; they are not exemptions.
    To address the potential for inconsistency with reporting
requirements, we have revised the definition of ``target HAP-
containing'' to reflect the different thresholds for trivalent and
hexavalent chromium compounds as follows:
    Target HAP-containing means raw materials, intermediates, or
products that contain one or more target HAP. Any material that
contains compounds of chromium (VI), lead, or nickel in amounts greater
than or equal to 0.1 percent by weight (as the metal), or manganese or
chromium (III) compounds in amounts greater than or equal to 1.0
percent by weight (as the metal) is considered to be target HAP-
containing. Target HAP content is shown in the formulation data
provided by the manufacturer or supplier, such as the Material Safety
Data Sheet for the material.
    Comment. One commenter suggested that the term ``responsible
official'' be defined in the rule, believing that plant manager at some
smaller plants may not qualify as a ``responsible official'' according
to the General Provisions. According to the commenter, this would
result in facilities having the additional burden of requesting
delegation of this through an implementing agency. The commenter
suggests following the approach and definition used in the National
Perchloroethylene Air Emission Standards for Dry Cleaning Facilities
Regulation (``Dry Cleaning NESHAP,'' 40 CFR part 63, subpart M).
    Response. We agree with the commenter that there may be unnecessary
burdens associated with the requirements for delegation of
``responsible official,'' as set forth in the General Provisions, for
small facilities affected by the rule. The approach utilized by 40 CFR
part 63, subpart M seems to be appropriate for the chemical
preparations area source category also. Therefore, we have revised the
definition of ``responsible official'' in the final regulation to be
more consistent with the definition used in the Dry Cleaning NESHAP.

VI. Impacts of the Final Standards

A. What Are the Air Impacts?

    Since 1990, the performance of the PM control technology utilized
by the

chemical preparations industry has not advanced significantly. We
believe, however, that market forces, such as the economic benefits
inherent in minimizing raw material or product losses from dust
emissions, have encouraged widespread use of these controls. Further,
improvements in formulations of products produced by the chemical
preparations industry, such as reduction or elimination of lead
chromate in certain products, have enabled the industry to further
reduce their air impacts. Therefore, while this final rule does not
require air emission reductions from existing sources beyond those
currently being achieved by such sources, we believe that this final
rule reflects significant reductions in emissions since 1990 based on
the use of effective PM control technology and ensures that affected
sources maintain and operate the control equipment such that the
performance level is maintained.

B. What Are the Cost Impacts?

    All existing chemical preparations industry facilities are expected
to currently be achieving the level of control required by the final
standards. That is, we believe that all existing sources currently
either route vent streams from specified equipment that use target HAP
to a control device with a 95 percent PM reduction efficiency, or have
an outlet PM concentration at or below 0.03 gr/dscf. Although this
final rule contains requirements for new area sources, we are not aware
of any new area sources being constructed now or planned in the next 3
years, and, consequently, we did not estimate any cost impacts for new
sources. Therefore, no additional air pollution control devices would
be required. No other capital costs are associated with this final rule
and no operational and maintenance costs are expected because we
believe that facilities are already following the manufacturer's
instructions for proper operation and maintenance of pollution control
devices and vent collection systems.
    The annual cost of monitoring (including inspections), reporting,
and recordkeeping for this final rule is estimated to be approximately
$6,800 per facility per year after the first year. The costs are,
therefore, expected to be less than 1 percent of revenues. The annual
estimate includes 20 hours per facility per year for preparing
semiannual compliance reports, which are required only if a deviation
occurs. Sources with no deviations to report must submit annual
compliance reports, which would result in less burden than estimated.
    The additional cost of one-time activities during the first year of
compliance is estimated to be approximately $2,400 per facility. This
includes labor hours for reading and understanding the rule,
preparation of the Initial Notification of Applicability, preparation
of the Notification of Compliance Status, development of a record
system, and personnel training, for an industry-wide average estimate
of approximately 32 hours per facility in the first year for one-time
activities. The resulting total hours for one-time activities, ongoing
inspections, recordkeeping and semiannual compliance reporting (assumes
worst-case scenario where a deviation occurs) activities for the first
year of compliance are 113 hours per facility.
    Information on our cost impact estimates on the sources in the
chemical preparations area source category is available in the docket
for this final rule. (See Docket ID No. EPA-HQ-OAR-2009-0028).

C. What Are the Economic Impacts?

    The only measurable costs attributable to these final standards are
associated with the monitoring, recordkeeping, and reporting
requirements. These final standards are estimated to impact a total of
26 area source facilities. We estimate that approximately 40 percent
(10 of 26) of these facilities are small entities as defined by the
SBA. Our analysis indicates that compliance with this final rule would
not have a significant adverse impact on any facilities, large or
small, since these costs are less than 1 percent of revenues for each
facility.

D. What Are the Non-Air Health, Environmental, and Energy Impacts?

    No detrimental secondary impacts are expected to occur from
compliance with the final rule by chemical preparations industry
sources because all facilities are currently achieving the GACT level
of control. No additional solid waste would be generated as a result of
the PM emissions collected and there are no additional energy impacts
associated with the operation of control devices at chemical
preparations industry sources. We expect no increase in the generation
of wastewater or other water quality impacts.

VII. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

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

B. Paperwork Reduction Act

    The information collection requirements in this final rule have
been submitted to OMB for approval 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 this final rule are
based on the requirements in EPA's NESHAP 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 other than emissions data submitted to
EPA pursuant to the information collection requirements for which a
claim of confidentiality is made is safeguarded according to with CAA
section 114(c) and the Agency's implementing regulations at 40 CFR part
2, subpart B.
    This final NESHAP requires chemical preparations area sources to
submit an Initial Notification of Applicability and a Notification of
Compliance Status according to the requirements in 40 CFR 63.9 of the
General Provisions (subpart A) and to conduct continuous parametric
monitoring (e.g., device parameter alarm), conduct vent collection
system and control device inspections and submit semi-annual or annual
compliance reports (as applicable).
    The total annual burden for this information collection averaged
over the first three years of this ICR is estimated to be 2,372 labor
hours per year at a labor cost of approximately $176,000 or
approximately $6,800 per facility. The total average burden is
approximately 91 hours per facility per year. Burden is defined at 5
CFR 1320.3(b).
    An agency may not conduct or sponsor, and a person is not required
to respond to, a collection of information unless it displays a
currently valid OMB control number. EPA displays OMB control numbers in
various ways. For example, EPA lists OMB control numbers for EPA's
regulations in 40 CFR part 9, which we amend periodically.
Additionally, we may display the OMB control number in another part of
the CFR, or in a valid Federal Register notice, or by other

appropriate means. The OMB control number display will become effective
the earliest of any of the methods authorized in 40 CFR part 9.
    When this ICR is approved by OMB, the Agency will publish a Federal
Register notice announcing this approval and displaying the OMB control
number for the approved information collection requirements contained
in this final rule. We will also publish a technical amendment to 40
CFR part 9 in the Federal Register to consolidate the display of the
OMB control number with other approved information collection
requirements.

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 purposes of assessing the impacts of today's rule on small
entities, small entity is defined as (1) a small business that is
engaged in the manufacturing of chemical preparations as defined by the
Small Business Administration's (SBA) regulations 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 final rule on small
entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities. This final
rule is estimated to impact all new and 26 existing chemical
preparations area source facilities. We estimate that 10 of these
facilities may be small entities. We have determined that small entity
compliance costs, as assessed by the facilities' cost-to-sales ratio,
are expected to be less than 1 percent. The costs are so small that the
impact is not expected to be significant. Although this final rule
contains requirements for new area sources, we are not aware of any new
area sources being constructed now or planned in the next 3 years, and,
consequently, we did not estimate any impacts for new sources.
    Although this final rule will not have a significant economic
impact on a substantial number of small entities, EPA nonetheless has
tried to minimize the impact of this final rule on small entities. The
standards represent practices and controls that are common throughout
the chemical preparations industry. The standards also require only the
essential recordkeeping and reporting needed to demonstrate and verify
compliance. These standards were developed based on information
obtained from consultation with small business representatives at the
State and national level and industry representatives that are
affiliated with small businesses.

D. Unfunded Mandates Reform Act

    This final rule 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 the private sector in any one year.
The total annual cost of the rule is estimated at $183,000/yr. This
final rule is not expected to impact State, local, or Tribal
governments. Thus, this action is not subject to the requirements of
sections 202 and 205 of the UMRA.
    This final rule is also not subject to the requirements of section
203 of UMRA because it contains no regulatory requirements that might
significantly or uniquely affect small governments. This final rule
contains no requirements that apply to such governments, imposes no
obligations upon them, and would not result in expenditures by them of
$100 million or more in any one year or any disproportionate impacts on
them.

E. Executive Order 13132: Federalism

    This action 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 final rule does not impose any
requirements on State and local governments and therefore creates no
substantial direct effects on the States. Thus, Executive Order 13132
does not apply to this action. Although section 6 of Executive Order
13132 does not apply to this action, EPA did solicit comment from State
program officials and consulted with representatives of State
governments in developing this action. A summary of these comments and
EPA's response to these comments is provided in section V of this
preamble.

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 final
action 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 as applying only to those
regulatory actions that are based on health or safety risks, such that
the analysis required under section 5-501 of the Executive Order has
the potential to influence the regulation. This action is not subject
to Executive Order 13045 because it is based solely on technology
performance. It is also not ``economically significant''.

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

    This action 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. We have concluded that this final rule
will not likely have any significant adverse energy effects because no
additional pollution controls or other equipment that consume energy
will be needed to comply with the final rule.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law No. 104-113 (15 U.S.C. 272 note)
directs EPA to use voluntary consensus standards (VCS) 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 VCS.
    This final rulemaking involves technical standards. EPA has decided
to use EPA Methods 1, 1A, 2, 2A, 2C, 2D, 2F, 2G, 3, 3A, 3B, 4, and 5.
Consistent with the NTTAA, EPA conducted searches to identify voluntary
consensus

standards in addition to these EPA methods. The search identified 16
voluntary consensus standards that were potentially applicable for this
rule in lieu of EPA reference methods. EPA has decided to use ASME PTC
19.10-1981, ``Flue and Exhaust Gas Analyses'' as an acceptable
alternative to EPA Method 3B. EPA determined the 15 other candidate VCS
(ASTM D3154-00 (2006), ASTM D3464-96 (2007), ASTM D3796-90 (2004), ISO
10780:1994, ASME B133.9-1994 (2001), ANSI/ASME PTC 19-10-1981 Part 10,
ISO 10396:1993 (2007), ISO 12039:2001, ASTM D5835-95 (2007), ASTM
D6522-00 (2005), CAN/CSA Z223.2-M86 (1999), ISO 9096:1992 (2003), ANSI/
ASME PTC-38-1980 (1985), ASTM D3685/D3685M-98 (2005), CAN/CSA Z223.1-
M1977) identified for measuring emissions of pollutants or their
surrogates subject to emission standards in the final rule would not be
practical due to lack of equivalency, documentation, validation data
and other important technical and policy considerations. No applicable
voluntary consensus standards were identified for EPA Methods 1A, 2A,
2D, 2F, 2G, and 5.
    Under Sec. Sec.  63.7(f) and 63.8(f) of subpart A of the General
Provisions, a source may apply to EPA for permission to use alternative
test methods or alternative monitoring requirements in place of any
required testing methods, performance specifications, or procedures in
the final rule.

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 U.S.
    EPA has determined that this final rule will not have
disproportionately high and adverse human health or environmental
effects on minority or low-income populations because it increases the
level of environmental protection for all affected populations.

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 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 action is not a ``major rule'' as defined by
5 U.S.C. 804(2). This final rule will be effective December 30, 2009.

List of Subjects in 40 CFR Part 63

    Environmental protection, Air pollution control, Hazardous
substances, Reporting and recordkeeping requirements.

    Dated: December 16, 2009.
Lisa P. Jackson,
Administrator.

0
For the reasons stated in the preamble, title 40, chapter I, part 63 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.

0
2. Part 63 is amended by adding subpart BBBBBBB to read as follows:

Subpart BBBBBBB--National Emission Standards for Hazardous Air
Pollutants for Area Sources: Chemical Preparations Industry

Sec.

Applicability and Compliance Dates

63.11579 Am I subject to this subpart?
63.11580 What are my compliance dates?

Standards and Compliance Requirements

63.11581 What are my standards?
63.11582 What are my compliance requirements?
63.11583 What are my monitoring requirements?
63.11584 What are my initial and continuous compliance management
practice requirements?
63.11585 What are my notification, recordkeeping, and reporting
requirements?

Other Requirements and Information

63.11586 Who implements and enforces this subpart?
63.11587 What General Provisions sections apply to this subpart?
63.11588 What definitions apply to this subpart?

Tables of Subpart BBBBBBB of Part 63

Table 1 of Subpart BBBBBBB of Part 63--Emission Reduction and PM
Concentration Requirements
Table 2 of Subpart BBBBBBB of Part 63--Initial Compliance
Demonstration Methods With the Emission Reduction and PM
Concentration Requirements in Table 1
Table 3 of Subpart BBBBBBB of Part 63--Test Methods
Table 4 of Subpart BBBBBBB of Part 63--Continuous Compliance
Demonstration Methods With the Emission Reduction and PM
Concentration Requirements in Table 1
Table 5 of Subpart BBBBBBB of Part 63--Reporting Requirements
Table 6 of Subpart BBBBBBB of Part 63--General Provisions

Subpart BBBBBBB--National Emission Standards for Hazardous Air
Pollutants for Area Sources: Chemical Preparations Industry

Applicability and Compliance Dates

Sec.  63.11579  Am I subject to this subpart?

    (a) You are subject to this subpart if you meet all of the
following conditions:
    (1) You own or operate a chemical preparations facility (as defined
in Sec.  63.11588, ``What definitions apply to this subpart?''),
    (2) The chemical preparations facility is a stationary area source
of hazardous air pollutants (HAP) (as defined in Sec.  63.2), and
    (3) The chemical preparations facility has at least one chemical
preparations operation in target HAP service (as defined in Sec.
63.11588, ``What definitions apply to this subpart?'').
    (b) The affected source is all chemical preparations operations (as
defined in Sec.  63.11588, ``What definitions apply to this subpart?'')
located at a facility that meets the criteria specified in paragraph
(a) of this section.
    (1) An affected source is existing if you commenced construction,
as defined in Sec.  63.2, of the affected source before August 5, 2009.
    (2) An affected source is new if you commenced construction or
reconstruction, as defined in Sec.  63.2, of the affected source on or
after August 5, 2009.
    (c) On and after December 30, 2009, if your chemical preparations
operation becomes a major source, as defined in Sec.  63.2, you must
continue to meet the requirements of this subpart in addition to any
maximum achievable control technology standards which may apply at that
time.
    (d) This subpart does not apply to research and development
facilities, as

defined in section 112(c)(7) of the Clean Air Act.
    (e) You are exempt from the obligation to obtain a permit under 40
CFR part 70 or 40 CFR part 71, provided you are not otherwise required
by law to obtain a permit under 40 CFR 70.3(a) or 40 CFR 71.3(a).
Notwithstanding the previous sentence, you must continuously comply
with the provisions of this subpart.
    (f) You are exempt from the requirements specified in this subpart
if the chemical preparations operations at your facility are subject to
the requirements specified in subpart VVVVVV or subpart CCCCCCC of this
part.

Sec.  63.11580  What are my compliance dates?

    (a) If you own or operate an existing affected source, you must
achieve compliance with the applicable provisions in this subpart no
later than December 30, 2010.
    (b) If you start up a new affected source on or before December 30,
2009, you must achieve compliance with this subpart no later than
December 30, 2009.
    (c) If you start up a new affected source after December 30, 2009,
you must achieve compliance with this subpart upon startup of your
affected source.

Standards and Compliance Requirements

Sec.  63.11581  What are my standards?

    You must meet one of the requirements in paragraph (a) or (b) of
this section that apply to you. These standards apply at all times.
    (a) You must meet one of the emission standards in Table 1 of this
subpart and the management practices in Sec.  63.11584(a) through (c)
of this subpart, or
    (b) You must demonstrate that the particulate matter concentration
of each of the process vent streams from equipment in target HAP
service within a chemical preparation operation will not exceed 0.03
gr/dscf and meet the management practices in Sec.  63.11584(d).

Sec.  63.11582  What are my compliance requirements?

    (a) You must demonstrate initial compliance with the emission
reduction or 0.03 gr/dscf particulate matter (PM) concentration
requirements specified in Table 1 of this subpart as follows:
    (1) Using the methods specified in Table 2 of this subpart, or
    (2) For existing sources only, using the results of an emissions
test conducted in the past 5 years, provided the test meets the
following requirements.
    (i) The test was conducted under conditions that represent normal
operation.
    (ii) The test was performed using the methods specified in Table 3
of this subpart.
    (iii) The test was conducted with a minimum of three separate test
runs, as specified in Sec.  63.7(e)(3).
    (b) If you choose to demonstrate compliance with the emission
reduction or 0.03 gr/dscf PM concentration requirements in Table 1 of
this subpart by conducting an emissions test, you must follow the
requirements specified in paragraphs (b)(1) through (b)(4) of this
section and include the results in your Notification of Compliance
Status Report (NOCSR) in accordance with Sec.  63.11585(b)(3).
    (1) You must conduct the tests under conditions that represent
normal operation.
    (2) You must perform the test using the methods specified in Table
3 of this subpart.
    (3) You must conduct a minimum of three separate test runs for each
performance test required in this section, as specified in Sec.
63.7(e)(3).
    (4) You must use the following equation to demonstrate compliance
with the emission reduction requirements specified in Table 1 of this
subpart:

RE = [1 - (Ci - Co)/Ci]*100

Where:

RE = PM removal efficiency, percent.
Ci = Concentration of PM at inlet of control device, gr/dscf.
Co = Concentration of PM at outlet of control device, gr/dscf.

    (c) If you choose to demonstrate compliance with the emission
reduction or 0.03 gr/dscf PM concentration requirements specified in
Table 1 of this subpart by providing control device manufacturer's
performance guarantee information, then you must include the following
information in your NOCSR (in accordance with Sec.  63.11585(b)(3)).
    (1) Control device make, model, and installation date.
    (2) Performance guarantee certificate provided by the control
device manufacturer.
    (3) If a filter is used to control PM, performance guarantee
information for the fabric or fiber filters used in the control device.
    (d) If you choose to demonstrate compliance with the emission
reduction or 0.03 gr/dscf PM concentration requirements specified in
Table 1 of this subpart by providing engineering calculations, then the
calculations and supporting documentation must contain the items
specified in paragraphs (d)(1) through (d)(5) of this section. These
calculations and supporting documentation must be included in your
NOCSR (in accordance with Sec.  63.11585(b)(3)).
    (1) Calculations and supporting documentation, such as delivery
receipts, production logs and raw material safety data sheets that
quantify the amount of raw materials used in the manufacture of
chemical preparations (as defined in Sec.  63.11588) in the prior
calendar year.
    (2) Calculations and supporting documentation, such as sales
receipts, production logs and product material safety data sheets
(MSDS) for chemical preparations (as defined in Sec.  63.11588)
products that quantify the amount of products produced by the chemical
preparations operations in the prior calendar year.
    (3) Calculations and supporting documentation of raw material
losses to the atmosphere from the chemical preparations operations.
This quantity (Qi in the equations in paragraph (5) of this section) is
the amount of target HAP-containing PM in the uncontrolled air
emissions from the chemical preparations operation, and does not
include quantified and documented losses to solid or liquid waste
streams, or material that is recycled back into the chemical
preparations operation.
    (4) Calculation and supporting documentation of quantities of
target HAP-containing PM captured by the vent collection system and PM
control device for the calendar year prior to the compliance date (Qo
in the equations in paragraph (5) of this section).
    (5) Use one of the following calculation methods to demonstrate
compliance with the requirements specified in Table 1 of this subpart:
    (i) For emission reduction, use the results of the calculations
from paragraphs (d)(3) and (d)(4) of this section in the following
equation:

RE = [1 - (Qi - Qo)/Qi]*100

Where:

RE = Annual average PM removal efficiency, percent.
Qi = Annual amount of PM in uncontrolled emissions, pounds per year.
Qo = Annual amount of PM captured by control device, pounds per
year.

    (ii) For the 0.03 gr/dscf PM concentration, use the results of
calculations from paragraphs (d)(3) and (d)(4) of this section in the
following equation:

PC = [Qi - Qo]*7000/DCFM*MPY

Where:

PC = Annual average PM concentration, grains per dry standard cubic
foot (gr/dscf).
Qi = Annual amount of PM in uncontrolled emissions, pounds per year.
Qo = Annual amount of PM captured by control device, pounds per
year. (Qo is equal to zero if the process vent stream is not routed
to a control device.)
DCFM = Process vent stream flowrate, dscf per minute (dscfm).
MPY = Minutes per year equipment are in target HAP service.

    (e) If you are certifying that the particulate matter concentration
of each of the process vent streams from equipment in target HAP
service within a chemical preparation operation will not exceed 0.03
gr/dscf, then you must:
    (1) Include the following information in your NOCSR (in accordance
with Sec.  63.11585(b)(6)).
    (i) A certification statement by the responsible official that
certifies that the particulate matter concentration of each of the
process vent streams from equipment in target HAP service within a
chemical preparation operation will not exceed 0.03 gr/dscf. The
statement shall contain that official's name, title, and signature,
certifying the truth, accuracy, and completeness of the certification
statement.
    (ii) Engineering calculations and supporting documentation
containing:
    (A) The annual raw material losses to the atmosphere from paragraph
(d)(3) of this section; and
    (B) The calculation of the PM concentration of process vent streams
from equipment in target HAP service from paragraph (d)(5)(ii) of this
section, using zero for the parameter Qo since there is no control
device, given in gr/dscf.
    (2) For each subsequent calendar quarter (i.e., three months),
maintain the following records to ensure that your certification
statement is valid on a continual basis:
    (A) The quarterly raw material losses to the atmosphere from
paragraph (d)(3) of this section; and
    (B) The calculation of the PM concentration of process vent streams
from equipment in target HAP service from paragraph (d)(5)(ii) of this
section, but on a quarterly basis instead of an annual basis, given in
gr/dscf. Use zero for the parameter Qo since there is no control
device.

Sec.  63.11583  What are my monitoring requirements?

    To demonstrate continuous compliance with the emissions standard in
Table 1, you must use one of the monitoring methods described in
paragraphs (a), (b) or (c) of this section while equipment within a
chemical preparation operation are in target HAP service:
    (a) Operate a bag leak detection system with alarm that will alert
operators of a leak in the control device filter material. If a bag
leak detection system with alarm is used to demonstrate compliance,
then the following steps must be performed:
    (1) You must install, calibrate, operate, and maintain each bag
leak detection system and alarm according to manufacturer's
specifications, and as specified in paragraph (a)(2) of this section.
    (2) The bag leak detection system and alarm must be maintained and
operated in a manner consistent with good air pollution control
practices at all times.
    (b) Operate a control device parameter (such as pressure drop or
water flow, as appropriate) monitor and alarm system that will alert
operators that the control device is operating outside the upper or
lower threshold or range established by the control device manufacturer
that indicate proper operation of the control device to meet the
emissions reduction or PM concentration requirements.
    (1) You must install, calibrate, operate, and maintain each control
device parameter monitor and alarm system according to manufacturer's
specifications, and as specified in paragraph (b)(2) of this section.
    (2) The control device parameter monitor and alarm system must be
maintained and operated in a manner consistent with good air pollution
control practices at all times.
    (c) Operate a continuous parameter monitoring system (CPMS) to
monitor control device operation. If a CPMS is used to demonstrate
compliance, then the following steps must be performed:
    (1) Establish and maintain site-specific control device parameter
values that indicate proper operation of the control device to meet the
emissions reduction or PM concentration requirements.
    (2) You must operate the continuous parameter monitoring system
(CPMS) during all periods when the process equipment is in target HAP
service and use all the data collected during these periods in
assessing the operation of the process vent collection system and
control device.
    (d) You must install, calibrate, operate, and maintain each control
device CPMS according to manufacturer's specifications, and as
specified in paragraphs (d)(1) through (d)(5) of this section.
    (1) The CPMS must be maintained and operated in a manner consistent
with good air pollution control practices at all times.
    (2) The CPMS must complete a minimum of one cycle of operation for
each successive 15-minute period.
    (3) To determine the 24-hour rolling average for the monitored
parameter(s), you must:
    (i) Have data from at least three of four equally spaced data
values for that hour from a CPMS, except as stated in paragraph (c)(2)
of this section.
    (ii) Determine each successive 24-hour rolling average from all
recorded readings for each 24-hour period, except as stated in
paragraph (c)(2) of this section.
    (4) For averaging periods of monitoring data from production in
target HAP service less than 24 hours, you must:
    (i) Have valid data from at least three of four equally spaced data
values for each hour from a CPMS that is not out-of-control according
to your manufacturer's recommendations.
    (ii) Determine the average from all recorded readings for the
production period, except as stated in Sec.  63.11583(c)(2).
    (5) You must record the results of each calibration and validation
check of the CPMS.
    (e) For each pressure measurement device, you must meet the
requirements of paragraph (b) or (c) of this section, as applicable,
and the following:
    (1) Locate the pressure sensor(s) in, or as close as possible to, a
position that provides a representative measurement of the pressure.
    (2) Use a gauge with a minimum measurement sensitivity of 0.12
kiloPascals or a transducer with a minimum measurement sensitivity of 5
percent of the pressure range.
    (3) Check pressure tap for plugging daily. Perform an accuracy
check at least quarterly or following an operating parameter deviation:
    (i) According to the manufacturer's procedures; or
    (ii) By comparing the sensor output to redundant sensor output.
    (4) Conduct calibration checks any time the sensor exceeds the
manufacturer's specified maximum operating pressure range or install a
new pressure sensor.
    (5) At least monthly or following an operating parameter deviation,
perform a leak check of all components for integrity, all electrical
connections for continuity, and all mechanical connections for leakage,
if redundant sensors are not used.
    (6) You must record the results of the plugging, accuracy and
calibration checks specified in paragraphs (e)(3) through (e)(5) of
this section in accordance with Sec.  63.11585.

    (f) For each monitoring system required in this section, you must
develop and make available for inspection by the delegated authority,
upon request, a site-specific monitoring plan that addresses the
following:
    (1) Selection and justification of the monitored parameter that
indicates proper operation of the control device to meet the emissions
limitation, if the parameter measured is something other than pressure
drop.
    (2) Installation of the bag leak detector, parameter monitoring
device, or CPMS at a measurement location relative to each affected
process unit such that the measurement is representative of control of
PM emissions (e.g., on the last control device);
    (3) Performance and equipment specifications for the parametric
signal analyzer, alarm, and the data collection and reduction system,
as appropriate; and
    (4) Performance evaluation procedures and acceptance criteria
according to the manufacturer (e.g., calibrations).
    (5) Ongoing operation and maintenance procedures in accordance with
the manufacturer's recommendations or the general requirements of Sec.
63.8(c)(1) and (c)(3);
    (6) Ongoing data quality assurance procedures in accordance with
the manufacturer's recommendations; and
    (7) Ongoing recordkeeping and reporting procedures in accordance
with the general requirements of Sec.  63.10(c), (e)(1), and (e)(2)(i)
and the requirements of Sec.  63.11585.
    (g) You must conduct a performance evaluation of each bag leak
detection system, control device parameter monitor and alarm system, or
CPMS in accordance with your site-specific monitoring plan.
    (h) You must operate and maintain each bag leak detection system,
control device parameter monitor and alarm system, or CPMS in
continuous operation, and collect parametric data at all times that
emissions are routed to the monitored control device.

Sec.  63.11584  What are my initial and continuous compliance
management practice requirements?

    (a) For each new and existing affected source, you must demonstrate
initial compliance by conducting the inspection activities in paragraph
(a)(1) of this section and demonstrate ongoing compliance by conducting
the inspection activities in paragraph (a)(2) of this section.
    (1) Initial vent collection system and particulate control device
inspections. You must conduct an initial inspection of each vent
collection system and particulate control device according to the