subcategorization'' of batch process vents. The commenters did not
address application of these factors directly, but they stated that
control requirements should be applied on a process unit basis. The
process unit construct is consistent with standards for batch process
vents in several MACT standards. We have considered this point in
response to comments on applicability and concluded that the factors we
considered at proposal in support of our subcategorization
determinations for the entire facility apply equally to individual
CMPUs. Furthermore, as noted above, the affected source for the final
rule is defined as the collection of specific CMPUs that use, generate,
or produce Table 1 HAP rather than the entire chemical manufacturing
operations. Therefore, for the final rule, we determined that
establishing subcategories based on individual CMPUs is also
appropriate.
    For the proposal, we ``considered the relative emissions reduction
and costs for the area sources in the category in determining the
appropriate emissions level at which to subcategorize the batch process
vents.'' Specifically, we established two subcategories based on
whether the total organic HAP emissions from all batch process vents in
the entire affected source are less than 19,000 lbs/yr or equal to or
greater than 19,000 lbs/yr. One commenter stated that this threshold is
reasonable, but only if it is applied to an individual CMPU. Another
commenter suggested using a threshold of 10,000 lbs/yr per CMPU.
    We considered both suggestions. We do not believe 19,000 lbs/yr per
CMPU is appropriate because the 19,000 lb threshold was intended to
represent emissions from multiple CMPUs, several of which may not be
part of the affected source under the final rule because we changed the
scope of the rule to cover only those CMPUs that emit one of the
chemical manufacturing urban HAP. Based on the results of a survey of
five facilities by one commenter, area sources have, on average, two
CMPUs that use, generate, or produce Table 1 HAP. Facilities in the MON
database with urban HAP emissions also had an average of two process
units with urban HAP emissions. A threshold of 10,000 lbs/yr per
process was also used in the MON and that provides indicia of the size
of a CMPU because the MON applies to major sources of HAP. Furthermore,
as discussed in the response to another comment in this section, the
estimated costs to meet an 85 percent control requirement for existing
CMPUs with uncontrolled organic HAP emissions equal to or greater than
10,000 lbs/yr are reasonable ($8,700/ton). Therefore, we have
established two subcategories for

the final rule. One subcategory is for batch process vents with
uncontrolled organic HAP emissions less than 10,000 lbs/yr per CMPU,
and the other is for batch process vents with uncontrolled organic HAP
emissions equal to or greater than 10,000 lbs/yr per CMPU.
    Comment: Three commenters suggested that the definition of
``continuous process vent'' should be consistent with the definitions
in other rules such as the HON, MON, and/or Generic MACT (40 CFR part
63, subpart YY). One commenter requested this change because the
proposed definition does not reflect the description given in the
preamble, the supporting analyses, the rulemaking database, industry
practice, or other chemical industry regulations. Another commenter
requested that definitions for items that are exempted from the
definition of ``continuous process vent'' such as ``relief device or
valve'' and ``equipment leak'' be added to the rule.
    Response: The final rule includes a definition for ``continuous
process vent'' that is consistent with the definition of ``process
vent'' in 40 CFR 63.101 and 40 CFR 63.107 of the HON. Terms or items in
the definition mentioned by the commenters have the same meaning given
in the HON.
    Comment: One commenter recommended that small continuous process
vents (i.e., <0.1 lb/hr and <800 lbs/yr) be exempt from requirements to
calculate a TRE value because the commenter estimated that the lowest
TRE index for a HAP emission stream with these characteristics would be
30 or higher. Another commenter estimated the burden of establishing
the variables needed to calculate the TRE index to be at least 4 hours
per process vent.
    Response: We have considered this issue and determined that, at an
emission rate of 0.1 lb/hr, the TRE will be well above 1.0 regardless
of other characteristics of the stream (e.g., type of HAP, HAP
concentration, and ratio of HAP to total VOC). The minimum TRE is
obtained for streams with high concentrations of organic compounds. For
streams containing common non-halogenated HAP (i.e., benzene, toluene,
and/or methanol), the lowest TRE values were determined to be between
16 and 30. As the concentration of these HAP decreases (due to
increased air and other VOC in the emission stream) the TRE increases,
typically to values above 30, as noted by the commenter. For streams
with the halogenated compound methylene chloride, the minimum and
typical TRE values were determined to be over 80. Therefore, to
minimize the burden of characterizing streams, the final standards
specify that calculation of the TRE is not required if the organic HAP
emission rate is less than 0.1 lb/hr. We did not include a
corresponding annual mass limit (i.e., 800 lbs/yr, which is
approximately equal to 0.1 lb/hr venting continuously for an entire
year) because the TRE varies with changes in the operating hours per
year. For a process that operates only a few weeks during the year,
emissions of 800 lbs could result in a TRE less than 1.0.
    Comment: One commenter stated that the impacts analysis for batch
process vents is unrealistic and incomplete. According to this
commenter, a more appropriate cost evaluation would include several
batch vents per process, several processes per site, and either
multiple control devices or expensive collection systems. In addition,
the commenter stated that the cost analysis for incinerators should
include the cost of halogen scrubbers when halogenated organics (e.g.,
methylene chloride) are controlled in the incinerator. The commenter
further stated that more widespread use of combustion devices in place
of or in addition to existing scrubbers and condensers would be needed
to meet the facility-wide 90 percent reduction requirement. Even if
existing controls are grandfathered, the commenter stated all sites
with emissions in the subcategory subject to control would incur costs
to meet performance test, monitoring, recordkeeping, and reporting
requirements.
    One commenter stated that the impacts analysis for continuous
process vents must include costs associated with existing controls,
including control upgrades, performance tests, monitoring, and
recordkeeping and reporting. Even with grandfathering of controls, all
continuous process vents with TRE <=1.0 would have to meet performance
test, monitoring, and recordkeeping and reporting requirements.
    Response: We have reevaluated the costs for control of batch
process vents because the final rule applies to a smaller affected
source than the proposed rule. We have also reevaluated the costs
because the analysis in the proposed rule did not account for
facilities that are achieving some level of control, but less than the
required percent reduction. As stated above, we have also redefined
GACT as 85 percent control for existing batch process units (90 percent
for new units) that have uncontrolled organic HAP emissions equal to or
greater than 10,000 lbs/yr, and our cost analysis at proposal was based
on 90 percent control for batch process vents subject to emission
limits.
    In reevaluation of the costs, we concluded that information
regarding the number of CMPU per area source, the number of CMPU with
emissions of chemical manufacturing organic urban HAP, the fraction of
total organic HAP emissions from batch process vents in process units
with chemical manufacturing organic urban HAP, the typical control
levels, flow rates, concentrations, operating hours, and other relevant
data are either lacking or limited. Therefore, information from the
baseline facility database from development of the MON was extrapolated
to area sources. Details of this revised analysis are in the docket,
but a summary of the analysis is set forth below.
    We estimated that four facilities have uncontrolled batch process
vent emissions from one CMPU with emissions greater than 10,000 lbs/yr
per process. Another seven facilities have an estimated one or two
CMPUs per facility with batch process vent emissions (for a total of
nine CMPUs at the seven facilities) controlled to some level less than
85 percent. Information available to EPA indicates that each CMPU at
the remaining facilities that have chemical manufacturing organic urban
HAP emissions have uncontrolled batch process vent emissions less than
10,000 lbs/yr.
    Based on this analysis, we estimated that the capital cost to add
controls for the 13 CMPUs at 11 facilities that do not meet the 85
percent standard is $390,000, and the annual cost is $370,000/yr. These
costs are based on the use of condensers. We do not believe
incinerators will be needed, as suggested by a commenter, because the
final standards apply to individual CMPUs (rather than facility-wide),
and the required control for existing batch process vents (85 percent)
can be averaged over all batch process vents within the CMPU. Because
the analysis is based on the use of condensers, halogen reduction
devices are not needed and have not been included in the analysis.
Costs for performance tests (or design evaluations), monitoring,
recordkeeping, and reporting are included in the final information
collection request, not this cost analysis. The estimated HAP
reductions are 43 tpy (versus 45 tpy at proposal). Thus, the cost-
effectiveness is $8,700/ton of organic HAP reduced, which we consider
to be reasonable for GACT.
    For continuous process vents, we have not changed the cost impacts
to include control equipment upgrades. Typically, if a continuous
process vent is controlled in the absence of a regulatory driver, the
vent has relatively

large emissions. We anticipate that such controls will be achieving the
required 95 percent reduction requirement. Performance test,
monitoring, recordkeeping, and reporting costs are estimated in the
information collection request. We have updated these costs in two
ways. First, we increased the number of affected facilities that must
conduct initial and ongoing compliance to include facilities with
controlled continuous process vents. Second, we increased the
percentage of facilities that will conduct design evaluations instead
of performance tests because the final rule allows design evaluations
for all control devices used to reduce emissions from continuous
process vents. Monitoring, recordkeeping, and reporting costs are
minimal in the current information collection request because it covers
only the 3 years after the promulgation date. Most existing sources
will not be in compliance during this time because the compliance date
is 3 years after promulgation. Subsequent information collection
requests will have higher costs for these activities.
3. Metal HAP Process Vents
    Comment: Several commenters recommended that EPA apply the
threshold for control on a vent basis rather than facility-wide because
the commenters interpreted the impacts analysis as applying to model
plants where all emissions were assumed to come from a single vent and
routed to a single control device. Two commenters noted that, unlike
organic HAP, particulate-containing emission streams can be ducted only
small distances. Numerous commenters recommended using the proposed 400
lbs/yr threshold for control rather than the alternative proposed
threshold of 100 lbs/yr because the incremental cost to lower the
threshold from 400 lbs/yr to 100 lbs/yr is unreasonable at an
incremental cost-effectiveness of $33,660 per ton of particulate and
$442,000 per ton of metal HAP.
    Response: After careful consideration, we have decided to set the
threshold for the subcategory of metal HAP process vents that are
subject to emission limits of 95 percent reduction at the proposed
level of 400 lbs/yr, for each CMPU that emits a Table 1 metal HAP (not
the entire facility, as proposed). We selected the CMPU basis rather
than the proposed facility-wide basis for the same reasons as for
organic HAP process vents (see response above), although we estimate
that a higher percentage of facilities that emit Table 1 metal HAP
subject to this control requirement have only a single process that
emits metal HAP, which means the affected source on a CMPU basis under
the final rule may be the same as the facility-wide affected source
under the proposed rule.\9\ For example, the four largest emitters all
make electrolytic manganese dioxide. Even if these facilities make the
product in multiple processing ``lines,'' they have only a single CMPU
under the rule because a CMPU is defined based on the product produced.
Many other facilities make inorganic pigments, catalysts, or animal
feed products. These facilities likely make a number of products with
slight variations that are grouped in ``families'' that qualify as a
single CMPU under the rule. For example, these manufacturers may make a
variety of similar products that differ only in the form or purity of
the final product (such as powders versus pellets), or the animal feed
products may differ only in the specific mix of additives. But in each
case, the metal HAP feedstock is the same, the processing steps and
emissions are comparable, and the end-use or functionality of each
product is the same; therefore, the activities would all be part of a
single CMPU under this rule.
---------------------------------------------------------------------------

    \9\ We assumed at proposal that facilities emitting Table 1
metal HAP would generally have one process so the change of affected
source from the facility to the CMPU does not require us to
reevaluate our subcategorization determination as with the change in
batch process subcategories. The factors we considered in
establishing the subcategories for metal HAP process vents at
proposal still apply under this final rule.
---------------------------------------------------------------------------

    As we stated above, the final rule requires consideration of
emissions from all vents associated with a CMPU when determining if the
threshold for the 400 lbs/yr or greater subcategory is exceeded. We did
not base the threshold for the subcategory on the emissions levels from
individual vents because the CMPU may emit metal HAP from a number of
different steps such as roasting, calcining, grinding, blending,
drying, and packaging. The end result of basing the emission rate
threshold on a vent basis would be to drastically reduce the urban HAP
emission reductions under the rule.
    Under the final rule, we estimate that up to 3 of the 30 facilities
with uncontrolled metal HAP emissions greater than 400 lbs/yr on a
facility basis may not be part of the subcategory when the threshold is
applied on a CMPU basis.
    In the preamble to the proposed rule, as part of our
subcategorization discussion, we determined that the level of metal HAP
emissions from the vents is a function of the purpose for which the
metal HAP is present in the process. We found that emissions varied
according to whether the metal HAP were intended to be incorporated
into the product of the chemical manufacturing process and that metal
HAP emissions from those types of facilities were generally larger
where the metal was incorporated into the product. We also identified
some vents that emit larger amounts of metal HAP, even though the metal
HAP is not incorporated into the final product, and we determined that,
in those circumstances, there were likely higher metal HAP emissions
because of the large size of the facility or because the facility is
using raw materials and/or fuel with higher levels of metal HAP
impurities. We concluded that it was appropriate to base the
subcategory on the amount of emissions of metal HAP from the process
vents as a proxy for the type and size of the vent. In determining the
appropriate emissions level, we considered relative emissions
reductions and costs to the affected area sources and co-proposed
subcategorizing based on either 100 lbs/yr or 400 lbs/yr of metal HAP
emissions. We received no adverse comments on the proposed
subcategorization approach.
    The preamble to the proposed rule stated that costs for both the
100 lbs/yr and 400 lbs/yr thresholds are comparable to costs for PM
control in other area source rules and for mobile sources. However, as
noted above, numerous commenters stated that the incremental costs do
not justify the 100 lbs/yr threshold and recommended selecting the 400
lbs/yr threshold. We recognize that the incremental cost for PM would
be at the high end of the range of costs for other area source rules.
The high incremental cost-effectiveness reflects a small incremental PM
reduction (40 tpy from 25 facilities), and, in regards to the basis for
the subcategory, the 400 lbs/yr level indicates a much higher emission
potential (i.e., size of facility) and we have decided that the 400
lbs/yr threshold best defines the subcategory. We received no adverse
comments on the proposed 400 lbs/yr threshold.
4. Storage Tanks
    Comment: Two commenters asked that the storage tank requirements be
based on the organic HAP partial vapor pressure instead of the VOL
vapor pressure, as specified in 40 CFR part 60, subpart Kb because it
is the HAP that are subject to standards.
    Response: Most rules in 40 CFR part 63 (i.e., NESHAP rules)
establish MTVP thresholds for total organic HAP because HAP is the
regulated pollutant.

This area source rule also regulates only HAP. As with the other rules,
we intended to base the MTVP thresholds in the proposed rule on organic
HAP, but we inadvertently neglected to override the provisions in the
referenced section of 40 CFR part 60, subpart Kb that specify the
threshold is based on the MTVP of the entire VOL. We have corrected
this error in the final rule. Table 5 to the final rule specifies all
applicable thresholds, and each MTVP threshold is based on the organic
HAP vapor pressure.
    Comment: Several commenters requested that the definition of
``storage tank'' be changed to match the language in the preamble to
the proposed rule and/or definitions in MACT rules. Specific requested
changes included: (1) Exclude wastewater storage because wastewater
storage tanks are included under the wastewater provisions (similar to
other MACT standards); (2) exclude bottoms receivers and surge control
vessels because these vessels are typically used in the chemical
industry as process vessels; (3) exclude process tanks to be consistent
with language in the MON; (4) exclude waste tanks because they are
ancillary to the process and are typically subject to regulation under
the Resource Conservation and Recovery Act (RCRA) (40 CFR Parts 264/265
and Subpart BB); and (5) limit the definition to tanks that store
liquid that contains any of the urban HAP listed in Table 1 to 40 CFR
part 63, subpart VVVVVV, not all HAP.
    Response: We have considered the comments and determined that using
similar definitions across the multiple standards is appropriate. The
definition in the final rule is consistent with the preamble and
definitions in the MON, the HON, and the Pharmaceutical MACT. The
definition of ``storage tank'' in the final rule excludes tanks storing
organic liquids containing HAP only as impurities. It excludes process
tanks because these tanks are subject to the process vent standards.
Wastewater tanks are excluded from the definition of ``storage tank.''
It also excludes surge control vessels and bottoms receivers because
these vessels are associated with continuous process operations; note,
however, that, as in the proposed rule, they are subject to the same
standards as storage tanks (i.e., all are subject to management
practice requirements, and controls are required for those that contain
Table 1 HAP and meet the same size and MTVP thresholds specified for
storage tanks).
    Comment: Several commenters asked that the rule include alternative
storage tank control options such as vapor balancing, the procedures
specified in 40 CFR part 63 subparts WW and SS, and the procedures
specified in the Consolidated Federal Air Rule (CAR) (40 CFR part 65,
subpart C).
    Response: Vapor balancing is a technique whereby the vapor space of
the storage tank is connected to the vapor space of a tank truck or
railcar that contains liquid that will be transferred to the storage
tank. As liquid from the tank truck or rail car is transferred to the
storage tank, vapors displaced from the storage tank are routed back to
the tank truck or railcar. This technique has been determined to
provide at least equivalent reductions in HAP emissions as the use of
an internal or external floating roof or routing displaced vapor to a
control device, provided several conditions are met: (1) The tank vent
pressure setting must be high enough to prevent breathing losses, (2)
the tank truck or railcar must be vapor tight, and (3) the tank truck
or railcar cleaning or reloading facility must also vapor balance or
route the collected vapors to a control device.
    The tank vent pressure setting must be high enough to prevent
breathing losses because vapor balancing controls only the working loss
emissions that are generated by filling the tank. As discussed in the
preamble to proposed amendments to 40 CFR part 63, subpart GGG (69 FR
19161, April 10, 2000), we determined that a setting of at least 2.5
lbs per square inch gage will eliminate breathing losses from tanks.
    If a system is leak-tight and very little or no air is drawn into
the system to become saturated with HAP, a source of emissions is
essentially eliminated. To ensure that the tank truck or rail car is
vapor-tight, the vapor balancing provisions in MACT rules (e.g., 40 CFR
63.1253(f) of the Pharmaceuticals Production NESHAP) require tank
trucks and railcars to have a current certification in accordance with
the U.S. Department of Transportation pressure test requirements of 49
CFR part 180 for tank trucks and 49 CFR 173.31 for railcars. To further
ensure the system is leak tight, the vapor balancing provisions in MACT
rules require that pressure relief devices on the storage tank and the
railcar or tank truck from which the storage tank is filled shall not
open during loading. To ensure that the applicable emission limit is
met, vapor balancing provisions in MACT rules require that the cleaning
or reloading facility shall implement vapor balancing when filling the
tank truck or railcar or the tank truck or railcar shall be connected
to a closed-vent system with a control device that reduces emissions by
the required amount. Because GACT for storage tanks in the subcategory
of larger tanks storing liquids with higher vapor pressures for which
an emission control device is required at chemical manufacturing area
sources is equivalent to the NESHAP requirements applicable to MON and
HON facilities, we determined that vapor balancing requirements of the
MON and HON also achieves HAP emission reductions at least equivalent
to the emission reductions required by the standards set forth in this
final rule. Therefore, the final rule allows vapor balancing in
accordance with the provisions in 40 CFR 63.2470(e) of the MON as a
compliance option for storage tanks at chemical manufacturing area
sources.
    Subpart WW in part 63 includes design, operational, and inspection
requirements for internal and external floating roofs that are
comparable to the GACT requirements that are based on 40 CFR part 60,
subpart Kb. The primary difference between the two subparts is that
subpart WW allows up to 10 years to come into full compliance with seal
and deck fitting control requirements if the tank is currently equipped
with a floating roof that does not meet these requirements. In the
preamble to the final Gasoline Distribution Area Source NESHAP (40 CFR
part 63, subpart BBBBBB) (73 FR 1926, January 10, 2008), we determined
that the requirements in subpart WW are equivalent to the GACT
requirements that were based on subpart Kb for gasoline distribution
facilities. Since the GACT requirements for chemical manufacturing area
sources are also based on subpart Kb requirements, implementing the
subpart WW requirements at chemical manufacturing area sources also
will achieve HAP reductions that are at least equivalent to the HAP
reductions resulting from implementing the subpart Kb requirements.
Therefore, the final rule allows compliance with subpart WW as an
alternative compliance option, but without the 10 year compliance
period. All storage tanks must be in full compliance by the relevant
compliance date, as set forth in this final rule.
    40 CFR part 63, subpart SS contains provisions for flare and non-
flare control devices that are comparable to the requirements for
control devices in 40 CFR part 60, subpart Kb. For example, both
require the closed-vent system to operate with no detectable emissions
as indicated by an instrument reading less than 500 parts per million
(ppm) above background and visual inspections; subpart SS may even be
more stringent in that it requires bypass monitoring and it specifies
how frequently to conduct both instrument and visual inspections. Both
subpart Kb

and subpart SS require the owner or operator to demonstrate initial
compliance based on a design evaluation, although subpart SS provides
more details of what to consider in the design evaluation, and subpart
SS explicitly allows performance test results as a means to demonstrate
initial compliance. Both subpart Kb and subpart SS also require the
owner or operator to develop and operate in accordance with an
operating or monitoring plan that specifies what parameter(s) will be
monitored to demonstrate ongoing compliance with the percent reduction
emission limit. Based on these similarities, we have determined that
compliance with subpart SS will achieve HAP emission reductions at
least equivalent to the reductions achieved by compliance with subpart
Kb. Therefore, the final rule allows compliance with subpart SS as an
alternative compliance option.
    The CAR was developed as an alternative for facilities to comply
with a single rule in place of a variety of different new source
performance standards (NSPS) and NESHAP rules. We do not think it is
appropriate to allow compliance with the CAR as an alternative for area
sources subject to this final rule because 40 CFR part 60, subpart
VVVVVV is the only NESHAP that applies to most chemical manufacturing
area sources. While we are not including compliance with the CAR as an
option, the final rule includes provisions that allow an owner or
operator to comply with the most stringent requirements from both an
overlapping rule and the final subpart VVVVVV as a means of
demonstrating compliance with the final rule.
    Comment: Two commenters stated that EPA significantly
underestimated the number of storage tank controls that will be
required and, thus, the capital cost and burden. Based on their review
of Docket Document EPA-HQ-OAR-2008-0334-0008, the commenters concluded
that EPA only considered controls for tanks storing urban HAP. However,
as drafted, the proposed rule requires control of all storage vessels
at a site meeting the size and vapor pressure criteria and storing any
material containing any HAP above impurity levels.
    Response: As discussed above, the final rule applies only to
storage tanks that are part of a CMPU in the affected source and that
contain a chemical manufacturing organic urban HAP. Although management
practices are required for all storage tanks that are part of an
affected CMPU, add-on controls are required only for tanks that meet
specified size and organic HAP vapor pressure thresholds. Many of these
tanks are likely already subject to 40 CFR part 60, subpart Kb and
already in compliance. We believe that the number of tanks that will be
subject to the control requirement applicable to the subcategory for
large storage tanks under the final rule is consistent with the
proposed impacts analysis.
5. Wastewater
    Comment: Numerous commenters requested changes to the definition of
``wastewater'' to clarify which streams are included and to limit the
scope of the term. Each of the commenters requested one or more of the
following changes: (1) Clarify that wastewater streams are water that
is discarded from the CMPU or control device (or, alternatively, the
chemical manufacturing operations), not from the affected source; (2)
specify that the water must contain PSHAP, not any HAP listed in Table
9 to 40 CFR part 63, subpart G; (3) specify that wastewater must be at
least 50 percent water or ``primarily'' water; (4) include flow and HAP
concentration thresholds; (5) identify types of water streams that are
not considered wastewater, as in the preamble to the proposed rule and
previous MACT rules; and/or (6) make the definition consistent with the
definition of wastewater in previous MACT rules.
    Response: We have considered the comments and decided that using
similar definitions across the multiple standards is appropriate. The
definition in the final rule includes most of the suggestions made by
commenters and is consistent with definitions in the MON and the HON.
However, the definition does not include a minimum water percentage. As
in the HON and other NESHAP, EPA intends to regulate as wastewater any
stream that: (1) Exits process unit equipment; and (2) meets the
concentration and flow rate criteria that are specified in the
definition because such wastewater streams have a significant potential
for emissions and should, therefore, be regulated.
    Comment: One commenter noted that the solubility in water of some
PSHAP is greater than 10,000 ppmw. Therefore, the commenter requested
that decanting not be required if no separable organic phase is present
in the wastewater stream.
    Response: Based on the comments and our additional analysis, we
have determined it is appropriate to redefine the subcategories of
wastewater. Specifically, we are amending the subcategories to account
for wastewater that has 10,000 ppmw or greater concentration of PSHAP
but does not have a water phase and an organic phase. In the proposed
rule, we determined that removal of the organic layer by gravity
separation was GACT, but gravity separation is not feasible for
wastewater that does not contain separate organic and water phases.
Under the final rule, we are establishing one subcategory based on both
the PSHAP concentration of 10,000 ppmw or greater and the presence of a
separate organic phase. Wastewater with a PSHAP concentration of 10,000
ppmw or greater, but without a separate organic phase, and wastewater
with a PSHAP concentration of less than 10,000 ppmw represent the other
subcategory.
    As in the proposed rule, we have determined that GACT is removal of
a separate organic layer by gravity separation when the PSHAP
concentration exceeds 10,000 ppmw and there is a separate organic
phase. The treatment requirements in the final rule for both the
organic and wastewater phases are consistent with the requirement set
forth in the proposed rule.
    Comment: Several commenters requested additional compliance options
for streams that contain more than 10,000 ppmw PSHAP, particularly for
wastewater that is collected for shipment offsite for treatment or
disposal. For example, one commenter recommended that decanting be
required only when the aqueous phase will be sent to on-site or offsite
treatment, but facilities should not have to separate a free organic
phase from wastewater that is managed in recycle, energy use, or
hazardous disposal operations that either have integral organic phase
separation or do not require such separation before recycle, energy
use, or disposal. Another commenter stated that wastewater sent to a
permitted wastewater treatment facility (such as a publicly owned
treatment works (POTW)) should be exempt. Another commenter stated that
separation should not be required for wastewater collected for shipment
offsite to be treated by a RCRA-permitted hazardous waste incinerator,
a POTW, or oil recycling operations. According to one commenter, the
rule should allow both direct piping to biological treatment and
combustion of the entire stream without separating out the water phase,
and another commenter added that combustion should be allowed for
streams that contain small amounts of water relative to the organic
phase. One commenter also noted that other separation techniques, such
as stripping or distillation, may be more effective than

decanting, and some oil-water separators do not rely on the principle
of gravity.
    Response: The final rule contains provisions for alternative
control of organic HAP from streams with >10,000 ppmw PSHAP. The final
rule allows: (1) Several separation techniques; (2) hard piping to an
on-site hazardous waste treatment unit; or (3) shipment offsite for any
similar treatment. These compliance options are included in Table 6 of
the final rule and provide at least equivalent emission reductions. The
other alternatives cited by the commenters may not provide at least
equivalent emission reductions as the final rule and, therefore, we are
not including them in the final rule.
    Comment: One commenter argued that the proposed requirements for
wastewater streams that contain >10,000 ppmw of PSHAP are not GACT
because the actual costs are significantly higher than EPA estimated.
According to the commenter, EPA's impacts analysis omitted the cost to
determine the partially soluble HAP concentration in each wastewater
stream, which ranged from 10 to 250 streams per facility at facilities
the commenter surveyed.
    Response: In the burden analysis for the information collection
requirements for the proposed rule, we estimated compliance
demonstration costs assuming that all area sources with organic urban
HAP would have wastewater. We also assumed that a typical area source
would spend 20 hours characterizing the wastewater (e.g., based on
knowledge of the wastewater), and that 50 percent of the facilities
would conduct sampling and analysis for an average of 10 streams. The
cost of analysis was assumed to be $435. The total cost was estimated
to be $169,400 per year for characterizing the streams according to
process knowledge and $210,400 per year for sampling and analysis.
    For the final burden estimate, we believe the number of streams
will be lower than the 10 estimated at proposal because only those
wastewater streams that are discarded from a CMPU that uses, generates,
or produces chemical manufacturing organic urban HAP are part of the
affected source for the final standards. According to one commenter,
the average number of points of determination for five surveyed
facilities is approximately two wastewater streams per process. We are
estimating two CMPUs per facility and 2 points of determination per
CMPU for a total of four process streams per facility.
    The final rule allows PSHAP concentration to be determined based on
either process knowledge or sampling and analysis. We assumed that 50
percent of facilities would perform sampling and analysis and the other
50 percent would rely on process knowledge. For the process knowledge
approach, we assumed 20 hours of in-house labor per facility at a total
cost of $1,750, as in the proposed analysis. However, we corrected an
error in the proposed analysis and applied this cost to only 50 percent
of the facilities rather than all of them for the final rule. For the
sampling and analysis approach, we assumed $435 per sample for analysis
and 20 hours of time for a contractor ($125 per hour labor rate) to
collect one sample per wastewater stream per facility; thus, the total
cost of this approach is estimated to be $4,240 per year per facility.
We assumed one sample per stream because one sample would be sufficient
to meet the compliance requirements. The estimate of 20 hours at $125
per hour is based on a commenter's estimate for retrieving four
samples. One commenter noted that the cost of triplicate analysis is
approximately $885. Assuming that the average cost per sample is not
based on the number of samples, the cost on a per sample basis would be
$295. We retained the $435 sampling cost used at proposal for
consistency and to be somewhat conservative in our estimate.
    The total respondent burden for the final wastewater standards was
estimated to be $84,700 per year for characterizing the streams
according to process knowledge and $205,100 per year for sampling and
analysis, which we believe is reasonable. The overall respondent burden
for wastewater streams has decreased by $90,000 from proposal to the
final standards.
    Comment: According to several commenters, decanting is not
justified for small streams, given the expense of the equipment and the
small potential benefit. For example, one commenter indicated the
capital and operating cost for a facility could exceed $100,000 while
achieving only minimal emissions reductions because of low throughput
or low volatility of the HAP. Another commenter requested that streams
containing up to 200 lbs/yr of PSHAP be excluded from the decanting
requirement.
    One commenter stated that small streams that contact only highly
insoluble materials and streams that are excluded from the definition
of wastewater in other rules should not be subject to the treatment
requirement because such streams are not currently treated, the cost
and burden to treat such streams were not considered in the rulemaking
record and, therefore, treatment for all streams cannot be GACT.
    Response: The revised definition of wastewater clarifies the types
of water discharges that are wastewater. With the changes to the final
rule for wastewater systems, we do not agree that our cost estimates
are in error and that there will be additional costs incurred to meet
the treatment requirements in the final rule.
    Comment: Several commenters objected to the proposed maintenance
wastewater requirements and stated that the wastewater requirements
should be limited to process wastewater. One commenter stated that the
proposed requirement to decant the organic phase from maintenance
wastewater is particularly problematic because maintenance wastewater
is often generated in small volumes and collected in various vessels
prior to on-site or offsite energy recovery, reuse, or recycling. The
maintenance wastewater is not discharged directly into an individual
drain system. The commenter pointed out that decanting these streams
first would add a second transfer step, which would increase the
emissions potential relative to the current operating practice.
    Response: By adding the compliance options discussed above, we have
addressed industry concerns regarding wastewater generated in small
quantities, wastewater that is reused or recycled, and wastewater
shipped offsite. For example, instead of requiring only decanting, the
final rule allows an owner or operator the alternative to collect a
small wastewater stream and send it to an offsite hazardous waste
treatment facility. This option applies to maintenance wastewater as
well as to process wastewater. Considering the requirements of the
final rule, we see no reason to distinguish between a process
wastewater stream and a maintenance wastewater stream.
6. Transfer Operations
    Comment: One commenter stated that the data and analysis supporting
the proposed rule demonstrate that the controls currently in place at
chemical manufacturing area sources are already GACT and that no
additional requirements are justified. The commenter indicated the rule
should be revised to incorporate criteria that reflect the submerged
fill or equivalent controls currently in place and should impose no
additional requirements. This commenter also stated the management
practice requirements that are based on requirements for transfer at
gasoline distribution facilities should be deleted. According to the
commenter, these requirements generally are not

GACT (because they impose significant cost but achieve no emission
reduction), are unclear, and conflict with other requirements and
regulations. The commenter provided labor hour estimates for the
various management practice tasks and estimated that the total cost
would be more than 10 times higher than EPA estimated.
    Response: As discussed in section III of this preamble, the
management practice requirements have been revised in the final rule to
better reflect what is generally available for these categories. Upon
review of the comments, we recognized that the proposed management
practice requirements were redundant for CMPU with both batch and
continuous process vents because the proposed requirements for both
emission points applied to all process equipment. In this final rule,
the various proposed management practices for process vents, equipment
leaks, transfer operations, and storage tanks were consolidated and
simplified into one comprehensive set of management practices that are
applicable to each affected CMPU. The comprehensive management
practices in the final rule include requirements to equip each vessel
with a cover or lid that must be in place when the vessel contains HAP
(except for material addition and sampling) and to conduct sensory
inspections for leaks throughout each affected CMPU on a quarterly
basis. The proposed inspections for equipment leaks are included
without change in the final management practice requirements, but the
final rule also requires comparable inspections for leaks from process
equipment in a CMPU (e.g., reactors, distillation units, process tanks)
and for storage tanks that are part of a CMPU and that store liquid
that contains any Table 1 organic urban HAP.
    For transfer operations, we retained in the final rule the
requirement to use submerged/bottom filling or other controls for all
loading of tank trucks and railcars (excluding reactive and resinous
materials). As the commenter noted, the combination of these loading
procedures and process unit-wide management practices is consistent
with operation at most area sources and has been determined to be GACT,
unlike the proposed requirements that were based on the requirements in
the gasoline distribution rule. Therefore, the final standards
generally do not impose many additional requirements except for the few
facilities that may not already be implementing these procedures.
Although emissions from transfer operations are less than emissions
from other emission points at chemical manufacturing area sources, we
believe that the reason for this is, in part, that most facilities are
implementing submerged loading or other control techniques. The
standards ensure that these practices continue.
    Comment: Three commenters requested that the submerged (and bottom)
fill requirement be deleted for transfer of resins because of
operational and safety concerns. One commenter noted that resins can
stratify and some of the layers formed might be flammable. Another
commenter noted that submerged fill may be dangerous for certain resins
and polymers, particularly those that contain styrene. The third
commenter noted that the Amino and Phenolic Resins NESHAP (40 CFR part
63, subpart OOO) has no requirements for transfer of resins because EPA
determined that the resins contain insignificant quantities of HAP and
are not cost-effective to regulate. One commenter also requested an
exemption from the submerged/bottom loading requirement for loading of
all reactive, viscous, and sticky materials due to safety concerns, the
fact that such procedures are not general industry practice, and
because past efforts have shown the liquids stick and sometimes harden
in the fill pipe, resulting in a significant expense to replace the
fill pipe and dispose of the hardened material as a RCRA hazardous
waste.
    Response: In response to commenters concerns, we reevaluated types
of liquid transfers to determine GACT for transfers of the types of
materials described by the commenters. We determined that submerged
loading is not a generally available industry practice for transferring
reactive or resinous materials for the reasons articulated by the
commenters. To address this issue, the final rule specifies that
submerged or bottom loading is not required for reactive or resinous
material. However, transfer operations associated with these materials
must comply with the other management practices.
7. Heat Exchange Systems
    Comment: One commenter stated that EPA should regulate cooling
towers where process fluid contains not less than 5- or 10-percent HAP
to keep applicability consistent with historic LDAR applicability
criteria and to minimize burden. Other commenters stated only re-
circulating cooling towers serving process heat exchangers containing 5
percent by weight organic HAP that could leak into the water should be
subject to cooling tower requirements.
    Two commenters requested EPA clarify whether ``once-through''
cooling systems, comfort cooling towers, or other non-process cooling
towers are excluded. These commenters suggested that exemptions in the
HON under 40 CFR 63.104(a) be included in the rule, with some
modifications, and that the exemptions apply to all cooling towers, not
only those with >8,000 gal/min circulation rates.
    Response: Although the proposed rule used the term ``cooling
tower'' systems, we intended it to mean ``heat exchange'' systems as is
consistent with the HON. Furthermore, the language in item 5.b of Table
2 to the proposed rule required affected sources to comply with the
requirements contained in 40 CFR 63.104(a)(1) through (6) of the HON.
That provision listed systems that were not subject to the proposed
rule (i.e., systems with cooling water side pressure that is at least
35 kPa greater than the process side, systems with intervening fluids
with <5 weight percent total HAP, systems used to cool process fluids
containing <5 weight percent HAP [as specified in Table 4 of 40 CFR
part 63, subpart F for recirculating systems, and as specified in Table
9 of 40 CFR part 63, subpart G for once-through systems], and once-
through systems that meet specified National Pollution Discharge
Elimination System permit requirements).
    Therefore, the final standards for heat exchange systems apply to
all heat exchange systems that are part of the affected source and that
do not meet conditions in 40 CFR 63.104(a) of the HON. The heat
exchange systems covered by the final rule are also exactly the same as
the cooling tower systems we intended to cover under the proposal and
on which our cost and emission reduction estimates were based.
    While a commenter noted that once-through systems are exempted in
the HON, it should be noted that the HON covers both recirculating and
once-through heat exchange systems under the 40 CFR 63.104 heat
exchange system requirements. Consistent with the proposal, the final
rule applies to once-through cooling waters in accordance with 40 CFR
63.104(a).
    We believe that control of once-through heat exchanger cooling
systems is appropriate for several reasons. Emissions of volatile HAP
occur readily from open water sources. While the stripping process may
not be as fast as in a cooling tower, once-through cooling water will
have a much longer exposure to the atmosphere than a system with a
cooling tower. While the emissions may occur over a longer time period,
all

available scientific evidence and fate modeling studies of open water
systems leads us to conclude that essentially all volatile HAP will be
released into the atmosphere. Therefore, we see no reason why HAP leaks
from heat exchange systems into once-through cooling water should be
treated any differently than HAP leaks from heat exchange systems that
have cooling towers.
    For the final rule, we clarify that heat exchange systems are part
of the affected source and specifically address once-through cooling
systems. We have included a definition of ``heat exchange system'' as
in the HON. These changes clarify the applicable requirements and also
clarify that comfort cooling towers and any other non-process cooling
towers are not subject to standards.
    Comment: Two commenters stated that the management practice
requirement for systems with <8,000 gal/min circulation rate should be
clarified. These commenters requested that area sources be allowed to
sample to determine if indications of a leak identified by an
inspection actually reflect a leak that is large enough to justify a
costly repair or a process shutdown. Because Sec.  63.104(b) of the HON
defines a leak as 1 ppm, and this level was also used in the impacts
analysis for the proposed standards, the commenters requested that area
sources be allowed to determine if this condition is met before being
required to repair after an inspection reveals indications of a leak.
    Response: The final rule specifies that the owner or operator must
either eliminate indications of a potential leak or demonstrate that
the HAP concentration in the cooling water does not constitute a leak,
as defined in 40 CFR 63.104(b)(6). If the concentration threshold is
not met, the system is assumed not to be leaking, and no other
requirements apply for that inspection cycle. We believe this is
appropriate because HAP may be inadvertently introduced to the heat
exchange system in ways other than through a leak. Requiring the
facility to cease operations based on minimal HAP present is not GACT
as it would create considerable cost with virtually no HAP reductions.
In addition, an alternative has been added for small heat exchange
systems to allow compliance with the same requirements that apply to
large heat exchange systems instead of the requirements that would
otherwise apply to the small heat exchange system.
    Comment: One commenter stated the costs estimated for the cooling
tower requirements are significantly underestimated and suggested
several specific revisions to the cost analysis involving the number of
cooling towers per site, number of samples to be collected, operator
sampling time, and sample analysis costs. Specifically, commenters
suggested that EPA should: Assume two cooling towers per site; assume
four samples per quarter for Options 2 and 3 because many cooling
towers have several return headers that each must be monitored and
because both inlet and outlet monitoring will be required for many
cooling towers to account for organic cooling tower additives, heavy
HAP and soluble HAP which build up in the system; operator sampling
time should be 1 hour under Options 2 and 3; sampling of total
hydrocarbons or surrogate species costs $200 to $400 per sample under
Option 2; sampling for HAP speciation requires multiple samples or gas
chromatography/mass spectroscopy for $300 to $800 per analysis; HON
procedures require triplicate samples; and add cost associated with
check samples and identifying the source of the leak.
    Response: We have made several revisions to the costs based on
comments and to correct omissions at proposal. While commenters
suggested that there are two cooling towers at each facility, after
limiting the affected source to CMPUs and associated heat exchange
systems and wastewater systems that use, produce, or generate chemical
manufacturing urban HAP, it is likely that area sources have one
cooling tower (or heat exchange system) in the affected source. Option
1 in both the proposed and final analyses is a quarterly sensory
inspection and leak repair program, and Option 2 consists of the
requirements for surrogate monitoring and leak repair in 40 CFR
63.104(c) of the HON. As discussed in section III.B.2.f of this
preamble, the Option 1 requirements were determined to be GACT for
small heat exchange systems, and the Option 2 requirements were
determined to be GACT for large heat exchange systems.
    For the final Option 2 cost analysis, we increased the number of
quarterly samples as suggested by one commenter, i.e., increased the
number to be taken from one sample to three samples, given that some
operators will monitor the heat exchange exit stream before the outlet
cooling water is manifolded with other streams. We included a 1-hour
sampling time for Option 2, as suggested by a commenter. We also
revised the recordkeeping time to 1 hour per quarter for both Options 1
and 2 because the type and amount of information to be recorded are
comparable under the two options. We inadvertently omitted the labor
costs to conduct the quarterly sensory inspections for Option 1 at
proposal and have included those cost estimates in the final analysis.
    We did not incorporate other suggested changes from the commenters
in the final impacts analysis. One suggestion was to incorporate costs
for identifying the specific source of the leak. However, with the
changes noted above regarding the monitoring of individual heat
exchangers, i.e., conducting three samples per quarterly event at heat
exchanger exits rather than one sample at a manifolded location, we
assumed that no additional cost would be associated with finding the
specific leaking heat exchanger because the leak will be easier to
locate based on HAP concentrations in the samples taken at different
locations. Other suggested changes were to include costs for ``water
sampling,'' monitoring both inlet and outlet locations, and conducting
sampling in triplicate. We did not include costs for these activities
because they are not required under either Option 1 or Option 2. An
owner or operator may elect to conduct monitoring in accordance with 40
CFR 63.104(b) of the HON, which does require sampling at the inlet and
outlet of each heat exchange system and in triplicate, but we did not
include costs for compliance with these procedures because we do not
expect many facilities to choose to comply with this option. Similarly,
facilities that choose to conduct water sampling to meet the surrogate
indicator monitoring under Option 2 could incur additional lab analysis
costs and would perhaps choose to take two or three samples; however it
is not required by the rule.
8. Equipment Leaks
    Comment: One commenter requested that the rule allow use of Method
21 as an option to confirm that AVO indication of a leak is or is not
actually a leak, i.e., less than 10,000 ppmv, as is consistent with
HON. Another commenter asked that Method 21 inspections be allowed in
lieu of sensory inspections.
    Response: The final rule allows Method 21 inspections in lieu of
sensory inspections. This alternative is equivalent to the method in
the proposed rule at detecting organic HAP leaks. The leak definition
in the final rule for Method 21 is set at 500 ppmv, the most stringent
level used in any Federal LDAR program.

D. Initial Compliance Demonstrations

    Comment: Three commenters requested that sources be allowed to
demonstrate initial compliance using

design evaluations (or a combination of design evaluation, engineering
calculation, or information from the equipment supplier) as an
alternative to performance testing for any control device and any type
of HAP, not just under the conditions where it is already allowed in
the MON and 40 CFR part 63, subpart SS. One commenter also stated that
sources should be allowed to designate vents as having a TRE <1.0 and
allow engineering estimates as an alternative to testing in all cases
(rather than requiring testing when estimating procedures result in a
TRE between 1.0 and 4.0). These commenters stated that this would be a
way to reduce burden and costs while having little impact on emissions
reductions, and they pointed out that, in some cases, testing is
impossible (e.g., at the inlet to sintered metal filters that are used
to control particulate emissions from storage bins). One commenter
added that some problems that area sources with limited testing
experience are likely to encounter include the need to modify sampling
methods, the lack of inlet sampling ports and the lack of a location
that will allow ports to meet EPA Method 1 location requirements, and
difficulty sampling inlet streams due to toxicity or flammability of
the gas.
    Response: Performance tests provide the greatest assurance that
required control levels are being achieved. However, they can be costly
(>$20,000 per test). Design evaluations based on engineering principles
are allowed in the MON and other MACT rules for small control devices
primarily due to cost considerations and the limited emission potential
from small control devices. Considering the cost of testing and the
fact that overall emissions from area sources are much lower than
emissions from major sources, we do not think a requirement for testing
at area sources is justified. Therefore, the final rule specifies that
design evaluations may be used to demonstrate initial compliance with
any organic HAP emission limits, hydrogen halide and halogen HAP
emission limits for scrubbers associated with combustion controls for
halogenated vent streams, and metal HAP emission limits.
    The final rule also does not require compliance with the referenced
requirements in Sec.  63.115(d)(1)(ii) that specify the owner or
operator must either perform measurements to verify that the TRE
determined using an engineering assessment is really between 1 and 4 or
consider the TRE to be <1; thus, an engineering assessment is
sufficient to determine the TRE in this range.

E. Monitoring Requirements

    Comment: Several commenters urged EPA to specify that the proposed
PS-17 and EPA Quality Assurance Procedure 4 do not apply to chemical
manufacturing area sources because the burden and cost of these
requirements is significant. Another commenter stated that the costs
for complying with the proposed PS-17 and EPA Quality Assurance
Procedure 4 need to be considered in the impacts analysis if they are
to apply to chemical manufacturing area sources. One commenter noted
that sophisticated instrumentation systems, centralized computer data
systems, and on-site instrumentation specialists would be needed to
comply with the proposed PS-17 and EPA Quality Assurance Procedure 4
requirements.
    Response: PS-17 and EPA Quality Assurance Procedure 4 have not been
finalized. As one commenter pointed out, these requirements go beyond
existing MACT and NSPS standards, area sources in the categories being
regulated today do not generally comply with these procedures, and the
costs to comply with PS-17 and EPA Quality Assurance Procedure 4 are
not reasonable. For these reasons, PS-17 and EPA Quality Assurance
Procedure 4 do not apply to affected sources under 40 CFR part 63,
subpart VVVVVV.

F. Recordkeeping and Reporting

    Comment: Two commenters stated that imposing almost all 40 CFR part
63 General Provisions is overly burdensome and unjustified, because
area sources have limited technical expertise and staff resources and
small emission potential compared to major sources. For example, one
commenter indicated that the ``negative'' records required by 40 CFR
63.1(b)(3) and 40 CFR 63.10(b)(3) should be indicated as ``No'' in
Table 4; the performance testing and monitoring provisions in 40 CFR
part 63, subpart SS should supersede 40 CFR 63.7 and 40 CFR 63.8; and
only the 40 CFR part 63 General Provisions, not the 40 CFR part 60
General Provisions, should apply.
    Response: In consideration of these comments, we have reviewed the
General Provisions and made a few minor changes to Table 9 of the final
rule with respect to recordkeeping and reporting requirements
(Applicability of General Provisions to Subpart VVVVVV). We determined
that 40 CFR 63.7(a)(2) does not apply because the rule references the
procedures in 40 CFR part 63, subpart SS for certain control device
compliance requirements, and 40 CFR 63.997(c)(1) of subpart SS contains
performance testing schedule requirements that are comparable, although
slightly more descriptive, than the schedule requirements in 40 CFR
63.7(a)(2). To ensure that area sources do not have to comply with PS-
17 and EPA Quality Assurance Procedure 4 when they are finalized, we
determined that 40 CFR 63.8(a)(2) does not apply. We also specify in
Table 9 that references to SSM in the General Provisions requirements
for recordkeeping and reporting do not apply. Finally, we determined
that the notification of changes to information already provided that
is required by 40 CFR 63.9(j) does not apply because it is redundant
with 40 CFR 63.11501(d)(4) of the final rule, which specifies that
notifications of process changes that affect a compliance
determination, result in a new compliance determination, or change the
method of compliance must be reported in the semi-annual compliance
reports.
    In addition to the changes in Table 9, we also added a statement in
40 CFR 63.11501(a) of the final rule to clarify that an affected source
must only comply with those Part 63 General Provisions as specified in
40 CFR Table 9. The General Provisions in other Parts, such as Part 60,
do not apply except to the extent that a source is subject to an
overlapping requirement, and that requirement calls for compliance with
the General Provisions of another part.

G. Requirements During Periods of Startup, Shutdown, and Malfunction
(SSM)

    Comment: Several commenters suggested changes to simplify and
reduce the burden of SSM requirements. One commenter stated that no
special reporting should be required after an SSM event if the SSM plan
was followed, and sources should not have to submit revised plans if
the plan is modified in a timely fashion. One commenter recommended
that 40 CFR part 63, subpart VVVVVV explicitly state that emission
limits and control requirements do not apply during SSM periods. Three
commenters stated that facilities subject only to management practice
requirements should not be required to develop an SSM plan because no
purpose is served by requiring an SSM plan for anything that does not
impact required controls.
    One commenter stated EPA should simplify SSM reporting requirements
by: (1) Waiving immediate reporting as required by 40 CFR 63.10(d)(5);
(2) requiring the information required by 40 CFR 63.10(d)(5) to be
recorded and maintained onsite and submitted in the periodic report;
(3) requiring SSM

reporting only if excess emissions occurred and they did not follow
their SSM plan; and (4) allowing SSM reporting to be consolidated with
semiannual compliance reports.
    One commenter stated that Table 4 should indicate that the
immediate reporting requirements and separate SSM reports required in
40 CFR 63.6(e)(3)(iii) and (iv) do not apply to 40 CFR part 63, subpart
VVVVVV, and that failure to follow the SSM plan during an event where
there are excess emissions should be reported in the deviation report.
This commenter also requested that EPA use time and labor rate
assumptions provided by the commenter in revised burden estimates
related to SSM plans.
    This same commenter stated that EPA developed the emission
limitations and work practices in the proposed rule without considering
any emission data during SSM of control or process equipment. As such,
the EPA cannot legally impose the emission limitations required during
normal operations on sources during periods of SSM. The commenter
points out that EPA may set a standard based on GACT or management
practices, and management practices is the most appropriate requirement
for SSM. The commenter suggests provisions of the HON be used as a
model for SSM management practices. The commenter also requested that
EPA clarify that area sources may take all actions necessary to ensure
that sources operate safely at all times, including during SSM events,
by including language similar to that in the MON in regards to opening
a safety device.
    Another commenter also submitted comments in response to the court
decision on SSM issues. The commenter submitted additional compliance
options that would show compliance at all times, including periods of
SSM because, according to the commenter, these periods are not steady
state conditions and, therefore, operating parameter limits determined
through performance testing or engineering evaluations would not be
indicative of those periods. The commenter stated that SSM provisions
should still be included in the final rulemaking for area sources.
Alternatives suggested by the commenter include demonstration of
compliance of emission limit using a long term rolling average; conduct
performance testing for periods of startup and shutdown; allow use of
storage tank when control device is not operational if tank is not
filled and has a tight fitting cover; run no new batches until
malfunction is over; and ensure that the control device is at normal
operating conditions before the process is started.
    Response: Table 9 to the final rule (Table 4 to the proposed rule)
contains references to the 40 CFR part 63 General Provisions and lists
the applicability of the General Provisions to the sources subject to
the rule. As explained above, in Sierra Club v. EPA, 551 F.3d 1019, the
Court vacated 40 CFR 63.6(f)(1) and 63.6(h)(1). In light of this court
decision, we revised Table 9 to state that 40 CFR 63.6(f)(1) and (h)(1)
do not apply. Table 9 also states that the requirements for SSM plans
and reports in 40 CFR 63.6(e)(3) and 40 CFR 63.10(d)(5) do not apply.
The final emission standards summarized in section IV above apply at
all times. As noted in sections III and IV above, we are establishing a
separate emission standard for periods of startup and shutdown for
continuous process vents for the nine source categories at issue here,
because these periods are characterized by activities, such as the
filling of vessels and the inerting of vessels, and these activities
generally result in significantly different emissions than normal
operations. See Sierra Club, 551 F.3d at 1027 (recognizing that the CAA
does not require EPA to set a single emission standard under CAA
section 112(d) that applies during all operating periods).
    Some commenters complain that EPA failed to consider emissions data
during startup and shutdown, and that EPA should set different
standards for these periods. EPA is limited to the emissions
information before it, which, of course, includes any information
provided by the commenters. In this case, EPA carefully analyzed all of
the emissions information before it, including that provided by
commenters, and concluded that only continuous vents presented a
situation where a separate standard during startup and shutdown was
appropriate. Although EPA recognizes that startup and shutdown events
associated with a continuous process can impact the quantity of
wastewater sent to the wastewater system, these events do not warrant a
separate standard for wastewater systems. The final GACT standards for
wastewater systems appropriately control HAP emissions, and the
commenters have not provided any data or other information that would
justify a separate standard for wastewater systems. Contrary to the
commenters' assertion, for batch processing, startup and shutdown are
considered part of normal operations. Storage tanks, heat exchange
systems, and transfer operations also do not undergo startup and
shutdown activities.
    Consistent with Sierra Club v. EPA, EPA has established CAA section
112(d) compliant standards in this rule that apply continuously. The
standards, as described above, apply at all times. In establishing the
standards in this rule, EPA has taken into account startup and shutdown
periods and has established different standards for such periods where
appropriate. Periods of start-up, normal operations, and shut-down are
all predictable and routine aspects of a source's operations. Batch
processes start up and shutdown as part of their routine process and
continuous process operations undergo startups and shutdowns for a
variety of reasons, including changes in product demand or product
line, and upgrading of equipment. By contrast, a malfunction is defined
as a ``sudden, infrequent, and not reasonably preventable failure of
air pollution control and monitoring equipment, process equipment or a
process to operate in a normal or usual manner * * * '' 40 CFR 63.2.
EPA has properly accounted for different periods of operation in
establishing the standards in this rule. EPA does not view malfunctions
as a distinct operating mode and, therefore, any emissions that occur
at such times do not need to be factored into development of CAA
section 112(d) standards, which, once promulgated, apply at all times.
Thus, EPA is not setting separate standards for malfunctions in this
rule, as the commenters requested.
    Further, even if malfunctions were considered a distinct operating
mode, we believe it would be impracticable to take into account
malfunctions in setting CAA section 112(d) standards. Because, by
definition, malfunctions are sudden and unexpected events, it would be
difficult to set a standard that would account for the myriad of
different emissions that could occur during malfunctions. In addition,
the type, frequency, and duration of the malfunctions may differ
significantly between sources. Furthermore, emissions during
malfunctions can substantially exceed the level of emissions during
start-up, shut-down, and normal operations. Finally, setting an
emissions standard that accounts for all different types of
malfunctions could allow a source to emit excessive quantities of
uncontrolled pollution.
    Commenters raised a concern that certain malfunctions necessitate
the opening of a safety device to avoid damage to equipment or injury
to personnel working at the site. EPA shares the commenters' concerns
that plants must be operated safely and that

plant operators should run their facilities in a safe manner.

H. Title V Permitting

    As discussed above in section III.F, we are not finalizing the
exemption from title V requirements for those sources that became area
sources by installing emission controls. We maintain, as explained
below in this response to significant comments, that we properly
applied the test for determining whether title V is unnecessarily
burdensome on the other sources subject to this NESHAP and we are
finalizing that exemption in this rulemaking.
    Comment: One commenter argued that the Agency's proposal to exempt
the nine area source categories 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. Sec.  7661a(a). The commenter notes that EPA
did not claim that title V requirements are impracticable or infeasible
for any of the source categories it proposes to exempt, but that EPA
instead relied entirely on its claim that title V would be
``unnecessarily burdensome.''
    Response: We have reconsidered our proposed exemption for major
sources that installed controls to become area sources after 1990.
Based on our additional review of the source categories since proposal,
we conclude that exemption for these synthetic area sources is not
appropriate as discussed above in section III.F. We are finalizing the
exemption for synthetic area sources that took operational limits and
for natural minor sources.
    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. 7661a(a).

    The statute plainly vests the Administrator with discretion to
determine when it is appropriate to exempt non-major (i.e., area)
sources of air pollution from the requirements of title V. The
commenter correctly notes that EPA based the proposed exemptions solely
on a determination that title V is ``unnecessarily burdensome,'' and
did not rely on whether the requirements of title V are
``impracticable'' or ``infeasible'', which are alternative bases for
exempting area sources from title V.
    To the extent the commenter is asserting that EPA must determine
that all three criteria in CAA section 502 are met before an area
source category can be exempted from title V, the commenter misreads
the statute. The statute expressly provides that EPA may exempt an area
source category from title V requirements if EPA determines that the
requirements are ``impracticable, infeasible or unnecessarily
burdensome.'' See CAA section 502 (emphasis added). If Congress had
wanted to require that all three criteria be met before a category
could be exempted from title V, it would have stated so by using the
word ``and,'' in place of ``or.''
    Comment: One commenter stated that in order to demonstrate that
compliance with title V would be ``unnecessarily burdensome,'' EPA must
show, among other things, that the ``burden'' of compliance is
unnecessary. According to the commenter, by promulgating title V,
Congress indicated that it viewed the burden imposed by its
requirements as necessary, as a general rule. The commenter maintained
that the title V requirements provide many benefits that Congress
viewed as necessary. Thus, in the commenter's view, EPA must show why,
for any given category, special circumstances make compliance
unnecessary. The commenter believed that EPA has not made that showing
for any of the categories it proposes to exempt.
    Response: EPA does not agree with the commenter's characterization
of the demonstration required for determining that title V is
unnecessarily burdensome for an area source category. As stated above,
the CAA provides the Administrator discretion to exempt an area source
category from title V if he determines that compliance with title V
requirements is ``impracticable, infeasible, or unnecessarily
burdensome'' on an area source category. See CAA section 502(a). In
December 2005, in a national rulemaking, EPA interpreted the term
``unnecessarily burdensome'' in CAA section 502 and developed a four-
factor balancing test for determining whether title V is unnecessarily
burdensome for a particular area source category, such that an
exemption from title V is appropriate. See 70 FR 75320, December 19,
2005 (``Exemption Rule''). In addition to interpreting the term
``unnecessarily burdensome'' and developing the four-factor balancing
test in the Exemption Rule, EPA applied the test to certain area source
categories.
    The four factors that EPA identified in the Exemption Rule for
determining whether title V is unnecessarily burdensome on a particular
area source category include: (1) Whether title V would result in
significant improvements to the compliance requirements, including
monitoring, recordkeeping, and reporting, that are proposed for an area
source category (70 FR 75323); (2) whether title V permitting would
impose significant burdens on the area source category, and whether the
burdens would be aggravated by any difficulty the sources may have in
obtaining assistance from permitting agencies (70 FR 75324); (3)
whether the costs of title V permitting for the area source category
would be justified, taking into consideration any potential gains in
compliance likely to occur for such sources (70 FR 75325); and (4)
whether there are implementation and enforcement programs in place that
are sufficient to assure compliance with the NESHAP for the area source
category, without relying on title V permits (70 FR 75326).\10\
---------------------------------------------------------------------------

    \10\ In the Exemption Rule, in addition to determining whether
compliance with title V requirements would be unnecessarily
burdensome on an area source category, we considered, consistent
with the guidance provided by the legislative history of CAA section
502(a), whether exempting the area source category would adversely
affect public health, welfare, or the environment. See 70 FR 75326,
December 19, 2005. As shown above, after conducting the four-factor
balancing test and determining that title V requirements would be
unnecessarily burdensome on the area source categories at issue
here, we examined whether the exemption from title V would adversely
affect public health, welfare, and the environment, and found that
it would not.
---------------------------------------------------------------------------

    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 October 6, 2008 proposed rule
for the categories at issue in this rule. Rather, we applied the four-
factor balancing test articulated in the Exemption Rule to the source
categories for which we proposed title V exemptions. Had we sought to
re-open our interpretation of the term ``unnecessarily burdensome'' in
CAA section 502 and modify it from what was articulated in the
Exemption Rule, we would have stated so in the October 6, 2008,
proposed rule and solicited comments on a revised interpretation, which
we did not do. Accordingly, we reject the commenter's attempt to create
a new test for determining what constitutes ``unnecessarily
burdensome'' under CAA section 502, as that issue falls outside the
purview of this rulemaking.\11\
---------------------------------------------------------------------------

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

    Furthermore, we believe that the commenter's position that ``EPA
must show * * * that the ``burden'' of compliance is unnecessary'' is
unreasonable and contrary to Congressional intent concerning the
applicability of title V to area sources. Congress intended to treat
area sources differently under title V, as it expressly authorized the
EPA Administrator to exempt such sources from the requirements of title
V at her discretion. There are several instances throughout the CAA
where Congress chose to treat major sources differently than non-major
sources, as it did in CAA section 502. In addition, it is worth noting
that, although the commenter espouses a new interpretation of the term
``unnecessarily burdensome'' in CAA section 502 and attempts to create
a new test for determining whether the requirements of title V are
``unnecessarily burdensome'' for an area source category, the commenter
does not explain why EPA's interpretation of the term ``unnecessarily
burdensome'' is arbitrary, capricious, or otherwise not in accordance
with law. We maintain that our interpretation of the term
``unnecessarily burdensome'' in CAA 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 for 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. In any event, EPA interpretation is reasonable.
Furthermore, 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 sources we are exempting, nor do the comments provide a
basis for the Agency to reconsider the exemption as we are finalizing
it.
    EPA reasonably applied the four factors to the facts of the nine
source categories at issue in this rule, and the commenter has not
identified any flaw in EPA's application of the four-factor test to the
nine area source categories at issue here.
    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 70 FR 75326.
    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. 73 FR 58373. 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. 73 FR 58373. 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 that
States will treat information submitted under these NESHAP differently
than information submitted pursuant to a title V permit.
    Even accepting the commenter's assertions that it is more difficult
for citizens to enforce the NESHAP absent a title V permit, in
evaluating the fourth factor in EPA's balancing test, EPA concluded
that there are adequate implementation and enforcement programs in
place to enforce the NESHAP. The commenter has provided no information
to the contrary or explained how the absence of title V actually
impairs the ability of citizens to enforce the provisions of the
NESHAP. Furthermore, the fourth factor is one factor 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 exemptions for natural area sources and synthetic area
sources that took operational limits in the source categories at issue
in this rule, but we are not finalizing the title V exemption for
sources that became synthetic area sources through the use of add-on
controls for the reasons set forth above in section III.F.
    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 each category. The commenter said
that, in its proposal, EPA proposed to require ``management practices,
which are practices that are currently used at most facilities, for
most subcategories (73 FR 58372).'' The commenter further states that
``EPA argues that its proposed standard, including these practices,
`provides monitoring in the form of recordkeeping that will assure
compliance with the requirements of the proposed rule.' '' Id. 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,
its claim that title V requirements are ``unnecessarily burdensome'' is
arbitrary and capricious, and its exemption is unlawful and arbitrary
and capricious.
    Response: As noted in the earlier comment, EPA used the four-factor
test to determine if title V requirements were unnecessarily
burdensome. 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
categories. See 70 FR 75323. It is in the context of this first factor
that EPA evaluates the monitoring, recordkeeping, and reporting
requirements of the proposed NESHAP to determine the extent to which
those requirements are consistent with the requirements of title V. See
70 FR 75323.
    The commenter asserts that ``EPA argues that its proposed standard,
including these practices, `provides monitoring in the form of
recordkeeping that will assure compliance with the requirements of the
proposed rule.' '' The commenter has taken a phrase from the preamble
out of context to imply that EPA has only required monitoring in the
form of recordkeeping. In the proposal, we stated:

    The proposed rule requires implementation of certain management
practices, which are practices that are currently used at most
facilities, for most subcategories, and add on controls and other
requirements, in addition to management practices for other
subcategories of sources. The proposed rule requires direct
monitoring of emissions or control device parameters, both
continuous and periodic, recordkeeping that also may serve as
monitoring, and deviation and other semi-annual reporting to assure
compliance with these requirements.
    The monitoring component of the first factor favors title V
exemption. For the management practices, this proposed standard
provides monitoring in the form of recordkeeping that would assure
compliance with the requirements of the proposed rule. Monitoring by
means other than recordkeeping for the management practices is not
practical or appropriate. Records are required to ensure that the
management practices are followed. The proposed rule requires the
owner or operator to record the date and results of inspections, as
well as any actions taken in response to findings of the
inspections. The records are required to be maintained as
checklists, logbooks and/or inspection forms. The rule also requires
emission limit requirements for some subcategories. Monitoring of
control device or recovery device operating parameters using CPMS or
periodic monitoring is required to assure compliance with these
emission limits.

See 73 FR 58372.

    We nowhere state or imply that the only monitoring required for the
rule is in the form of recordkeeping. As the above excerpt states, we
required continuous and periodic direct monitoring of emission control
devices and recovery devices when the rule requires the installation of
such controls in addition to the recordkeeping that serves as
monitoring for the management practices. The commenter does not provide
any evidence that contradicts the conclusion that the proposed
monitoring requirements are sufficient to assure compliance with the
standards in the rule.
    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 can assure compliance for those
sources we are exempting.
    For the reasons described above and in the proposed rule, the first
factor supports an exemption. Assuming, for arguments sake, that the
first factor alone cannot support the exemption, the four-factor
balancing test requires EPA to examine the factors, in combination, and
determine whether the factors, viewed together, weigh in favor of
exemption. See 70 FR 75326. As explained above, we determined that the
factors, weighed together, support title V exemption for the natural
area sources and synthetic area sources that took operational limits in
these source categories.
    Comment: One commenter believes EPA argued that its own belief that
title V is a ``significant burden'' on area sources further justifies
its exemption (73 FR 58372-58373). According to the commenter,
regardless of whether EPA regards the burden as ``significant,'' the
Agency may not exempt a category from compliance with title V
requirements unless compliance is ``unnecessarily burdensome.'' The
commenter stated that, in any event, EPA's claims about

the alleged significance of the burden of compliance is entirely
conclusory and could be applied equally to any major or area source
category. The commenter also stated that the Agency does not show that
the compliance burden is especially great for any of the sources it
proposes to exempt, and, thus, does not demonstrate that the alleged
burden necessitates treating them differently from other categories by
exempting them from compliance with title V requirements.
    Response: The commenter appears to take issue with the formulation
of the second factor of the four-factor balancing test. Specifically,
the commenter states that EPA must determine that title V compliance is
``unnecessarily burdensome'' and not a ``significant burden,'' as
expressed in the second factor of the four-factor balancing test.
    As we have stated before, at proposal we found the burden placed on
these sources in complying with the title V requirements is significant
when we applied the four-factor balancing test.\12\ We note that the
commenter in other parts of its comments on the title V exemptions
argues that EPA must demonstrate that every title V requirement is
``unnecessary'' for a particular source category before an exemption
can be granted, but makes no mention of the ``burden'' of those
requirements on area sources, but here the commenter argues that
``significant burden'' is not appropriate for the second factor.
Notwithstanding the commenter's inconsistency, as explained above, the
four-factor balancing test was established in the Exemption Rule and we
did not re-open EPA's interpretation of the term ``unnecessarily
burdensome'' in this rule. As explained above, we maintain that the
Agency's interpretation of the term ``unnecessarily burdensome,'' as
set forth in the Exemption Rule and reiterated in the proposal to this
rule, is reasonable.
---------------------------------------------------------------------------

    \12\ As discussed in Section III above, since proposal, we have
reconsidered the proposed exemption for synthetic area sources that
became area sources by virtue of installing add-on controls and
determined that these sources are generally larger and more
sophisticated sources and, that for these and other reasons, the
burden on these sources would not be significant.
---------------------------------------------------------------------------

    Contrary to the commenter's assertions, we properly analyzed the
second factor of the four-factor balancing test. See 70 FR 75320. Under
that factor, EPA considers whether title V permitting would impose a
significant burden on the area source categories, and whether that
burden would be aggravated by any difficulty that the sources may have
in obtaining assistance from the permitting agencies. See 70 FR 75324.
The commenter appears to assert that the second factor must be
satisfied for EPA to exempt an area source category from title V, but,
as explained above, the four factors are considered in combination. We
have concluded that the second factor, in combination with the other
factors, supports an exemption for the chemical manufacturing area
sources that we are exempting from compliance with title V in this
final rule.
    Therefore, we disagree with the commenter's assertion that EPA's
finding (i.e., that the burden of obtaining a title V permit is
significant, does not equate to the required finding that the burden is
unnecessary) is misplaced. While EPA could have found that the second
factor alone could justify the exemption for the sources we are
exempting in this rule, EPA found that the other three factors also
support exempting these sources from the title V requirements because
the permitting requirements are unnecessarily burdensome for the
chemical manufacturing area sources we are exempting.
    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 (73 FR 58373). The commenter stated
that EPA's conclusory claim could be made equally with respect to any
major or area source category. According to the commenter, the Agency
provides no specific reasons to believe--with respect to any of the
categories it proposes to exempt--that the additional informational,
monitoring, reporting, certification, and enforcement requirements that
exist in title V, but not in these NESHAP, would not provide additional
compliance benefits. The commenter also stated that the only basis for
EPA's claim is, apparently, its beliefs that those additional
requirements never confer additional compliance benefits. According to
the commenter, by advancing such argument, EPA merely seeks to elevate
its own policy judgment over Congress' decisions reflected in the CAA's
text and legislative history.
    Response: The commenter mischaracterizes the first and third
factors of the four-factor balancing test and takes out of context
certain statements in the proposed rule concerning the factors used in
the balancing test to determine if imposition of title V permit
requirements is unnecessarily burdensome for the source categories. 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. In
fact, our decision to not exempt synthetic area sources that installed
add-on controls was based, in part, on our determination that the
additional public participation and oversight attendant to title V
permitting was appropriate for those sources. While EPA recognizes that
requiring a title V permit offers additional compliance options, the
statute provides EPA with the discretion to evaluate whether compliance
with title V would be unnecessarily burdensome to specific area
sources. For the sources we are exempting, we conclude 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.
    The monitoring, recordkeeping and reporting requirements in the
rule are sufficient to assure compliance with the requirements of this
rule for the sources we are exempting, consistent with the goal in
title V permitting. For example, in the Notification of Compliance
Status report, the source must certify that it has implemented
management practices, and, if necessary, installed controls and
established monitoring parameters. See 40 CFR 63.11501 in the final
rule. The source must also submit deviation reports to the permitting
agency every 6 months if there has been a deviation in the requirements
of the rule. See 40 CFR 63.11501 in the final rule. The requirements in
the final rule provide sufficient basis to assure compliance,

and EPA does not believe that the title V requirements, if applicable
to the sources that we are exempting, would offer significant
improvements in the compliance of the sources with the rule.
    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 considers the costs of title V
permitting requirements, including consideration of any improvement in
compliance above what the rule requires. In considering the third
factor, we stated, in part, that, ``[b]ecause the costs, both economic
and non-economic, of compliance with title V are high, 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 these area source categories.'' See 73
FR 58373.
    Most importantly, EPA considered all four factors in the balancing
test in determining whether title V was unnecessarily burdensome on the
area source categories we are exempting from title V in this final
rule. As stated above, we have determined that title V is appropriate
for synthetic area sources that installed add-on controls and we are
not finalizing the exemption for those sources. As to the remaining
sources, 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 sources we are exempting, nor do the comments provide sufficient
basis for the Agency to reconsider its proposal to exempt the natural
area sources and synthetic area sources that took operational limits to
maintain HAP below major source levels.
    Comment: According to one commenter, EPA argued that alternative
State implementation and enforcement programs assure compliance with
the underlying NESHAP without relying on title V permits (73 FR 58373).
The commenter stated that again, EPA's claim is entirely conclusory and
generic. The commenter also stated that ``the Agency does not identify
any aspect of any of the underlying NESHAP showing that with respect to
these specific NESHAP--unlike all the other major and area source
NESHAP it has issued without title V exemptions--title V compliance is
unnecessary'' (emphasis added). 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: Contrary to the commenters' assertions, EPA does believe
that title V is appropriate under certain circumstances. Indeed, we are
not finalizing the title V exemption for synthetic area sources that
became area sources by virtue of installing add-on controls. However,
given the facts associated with the remainder of the sources in the
categories, we think that exemption from title V is appropriate for
those sources.
    In this comment, 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. 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 NESHAP.
    The commenter argues that EPA cannot exempt any of the area sources
in these categories 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'' (emphasis added). 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.
    Furthermore, we disagree that the basis for excluding the chemical
manufacturing area sources we are exempting from title V requirements
is generally applicable to sources in any source category. As explained
in the proposal preamble and above, we balanced the four factors
considering the facts and circumstances of the nine source categories
at issue in this rule. For example, in assessing whether the costs of
requiring the sources to obtain a title V permit was burdensome, we
concluded that the high relative costs would not be justified given
that there is likely to be little or no potential gain in compliance,
particularly for sources that are required to comply only with the
management practice requirements contained in the final rule. Almost
all of the sources we are exempting from title V are required to comply
only with management practices.
    Comment: One commenter stated that, as EPA concedes, 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. Furthermore, the commenter stated that EPA conceded this
point. See 73 FR 58373. 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 (73 FR 58373). 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, for the reasons given above, that 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. At proposal, EPA
applied these four factors to the nine chemical manufacturing area
source categories subject to this rule and concluded that requiring
title V for these area source categories would be unnecessarily
burdensome. We maintain that this conclusion is accurate for the
sources we are exempting in this rule.
    In addition to determining that title V would be unnecessarily
burdensome on the area source categories for which we proposed
exemptions, as in the Exemption Rule, EPA also considered, consistent
with our interpretation of the legislative history, whether exempting
the area source categories would adversely affect public health,
welfare, or the environment. As explained in the proposal preamble, we
concluded that exempting the area source categories at issue in this
rule would not adversely affect public health, welfare, or the
environment because the level of control would be the same even if
title V applied. We further explained in the proposal preamble 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 to demonstrate that the exemption from
title V that we are finalizing will adversely affect public health,
welfare, or the environment.

VI. Impacts of the Final Area Source Standards

A. What are the air impacts?

    We estimate that the final standard will reduce organic HAP
emissions by 207 tpy and metal HAP by 41 tpy from the baseline level,
for an overall HAP emission reduction of 248 tpy from the baseline.
Table 1 of this preamble summarizes the estimated HAP reductions under
the final standards for each type of emission point.

          Table 1--Estimated Nationwide HAP Emission Reductions
------------------------------------------------------------------------
                                    HAP emission      Urban HAP emission
         Emission point            reduction (tpy)     reduction (tpy)
------------------------------------------------------------------------
Batch process vents............                 <43                 13
Continuous process vents.......                 <29                  9
Metal HAP process vents........                  41                 38
Storage tanks..................                   5                  5
Heat exchange systems..........                  79                 24
Transfer operations............                   1                  0.2
Wastewater systems.............                  51                 16
                                ----------------------------------------
    Total......................                 248                105
------------------------------------------------------------------------

B. What are the cost impacts?

    The total capital cost of the final standard is estimated at $2.8
million. The total annualized cost of the final standard, including the
annualized cost of capital equipment, is estimated at $3.2 million/yr.
Additional information on our impact estimates on the sources is
available in the docket (See Docket Number EPA-HQ--OAR-2008-0334.)

C. What are the economic impacts?

    The final standard is estimated to impact a total of approximately
450 existing source facilities and 27 new sources in the next 3 years.
Many of the facilities affected by this final rule are small entities.
Our analyses indicate that the final rule will not impose a significant
adverse impact on any facilities, large or small. The average cost for
each chemical manufacturing industry is projected to be less than 0.06
percent of average sales. In addition, the average costs in each
industry are projected to be less than 0.2 percent of average sales for
the smallest facilities within each industry (i.e., facilities with 50
to 99 employees).

D. What are the non-air health, environmental, and energy impacts?

    The secondary impacts would include energy impacts associated with
direct operation of combustion control devices, energy impacts
associated with the generation of electricity to operate control
devices, and solid waste generated as a result of the metal HAP
emissions collected. Organic materials that are recovered from
wastewater using gravity separation techniques would also be a solid
waste if the material could not be reused in a process or as fuel.
    We estimate that an additional 175 megawatt-hr/yr of electricity
and 260,000 standard cubic feet per year of natural gas will be needed
to operate control devices. We estimate that an additional 1.7 tpy of
criteria pollutants will be generated from the combustion of natural
gas in combustion control devices and from the combustion of coal to
generate electricity. We estimate that controlling metal HAP emissions
will generate an additional 580 tpy of solid

waste, including about 41 tpy of HAP metals. An estimated 8 tpy of
organic material will be recovered from wastewater using gravity
separation techniques.

VII. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

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

B. Paperwork Reduction Act

    The information collection requirements in this final rule have
been submitted for approval to OMB under the Paperwork Reduction Act,
44 U.S.C. 3501, et seq. The information collection requirements are not
enforceable until OMB approves them.
    The recordkeeping and reporting requirements in this final rule are
based on the requirements in EPA's NESHAP General Provisions to part
63. These recordkeeping and reporting requirements are mandatory
pursuant to section 113 of the CAA (42 U.S.C. 7414). All information
submitted to EPA pursuant to the information collection requirements
for which a claim of confidentiality is made is safeguarded according
to CAA section 114(c) and the Agency's implementing regulations at 40
CFR part 2, subpart B.
    This final NESHAP requires chemical manufacturing area sources to
submit an initial notification of applicability, Notification of
Compliance Status report, performance test results, and semiannual
compliance reports. The semiannual compliance reports are only required
to be submitted if any deviations from any requirements in the rule
occurred during the applicable semiannual reporting period. Area
sources must also estimate emissions from batch process vents and metal
HAP process vents, determine the TRE for continuous process vents,
identify and characterize the PSHAP concentration in wastewater
streams, prepare a heat exchange system monitoring plan, conduct design
evaluations to determine control efficiency, and conduct inspections
for leaks.
    Records will be required to demonstrate compliance with the TRE
calculation requirements for continuous process vents, batch and metal
process vent emissions estimation requirements, inspections and vapor
pressure calculations for storage tanks, wastewater HAP concentration
requirements, and management practice inspection records for each CMPU.
    The annual burden associated with the monitoring, recordkeeping,
and reporting requirements for this information collection, averaged
over the first 3 years of this ICR, is estimated to total 10,566 labor
hours per year at a cost of $803,906. Capital/startup costs for
performance tests and monitoring equipment were annualized and
estimated at $69,484/yr; operation and maintenance costs for the
monitoring equipment were estimated at $28,787/yr. The costs
attributable to the final standards are associated with the initial
compliance demonstration, monitoring, recordkeeping, and reporting
requirements. 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. The OMB control numbers for EPA's
regulations in 40 CFR are listed in 40 CFR part 9. When this ICR is
approved by OMB, the Agency will publish a technical amendment to 40
CFR part 9 in the Federal Register to display the OMB control number
for the approved information collection requirements contained in this
final rule.

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 will
not have a significant economic impact on a substantial number of small
entities. Small entities include small businesses, small organizations,
and small governmental jurisdictions.
    For purposes of assessing the impacts of this final rule on small
entities, small entity is defined as: (1) A small business that meets
the Small Business Administration size standards for small businesses
found at 13 CFR 121.201 (less than 500, 750, or 1,000 employees
depending on the specific NAICS Code under subcategory 325); (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 a total of approximately 450 chemical
manufacturing area sources; more than 150 of these facilities are
estimated to be small entities. An economic impacts analysis was
performed to compare the control costs associated with producing a
product at facilities in the various chemical manufacturing industries
to the average value of shipments from such facilities. In all
industries, the average costs are projected to be less than 0.07
percent of average sales. For the smallest facilities in each industry
(those with 50 to 99 employees), the average costs are all projected to
be less than 0.2 percent of average sales. Thus, any price increases or
loss of profit would be quite small.
    Although this final rule will not have a significant economic
impact on a substantial number of small entities, EPA nonetheless has
tried to reduce the impact of this final rule on small entities. The
standards represent practices and controls that are common throughout
the sources engaged in chemical manufacturing, and in many cases only
require management practices. The standards require only the
recordkeeping and reporting needed to demonstrate and verify
compliance.

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 $3.2 million/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 final rule does not have federalism implications. It will not
have substantial direct effects on the States,

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

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

    This action does not have tribal implications, as specified in
Executive Order 13175 (65 FR 67249, November 9, 2000). This action
imposes requirements on owners and operators of specified area sources
and not tribal governments. Thus, Executive Order 13175 does not apply
to this action.

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

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

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. Further, we have concluded that this
rule is not likely to have any adverse energy impacts.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (NTTAA), Public Law 104-113, 12(d) (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. VCS are technical standards
(e.g., materials specifications, test methods, sampling procedures, and
business practices) that are developed or adopted by VCS bodies. NTTAA
directs EPA to provide Congress, through OMB, explanations when the
Agency decides not to use available and applicable VCS.
    This action involves technical standards. EPA cites the following
standards: EPA Methods 5 and 5D in 40 CFR part 60, Appendix A-3 and EPA
Method 29 in 40 CFR part 60, Appendix A-8. Therefore, EPA conducted a
search to identify potentially applicable VCS. No applicable VCS were
identified for EPA Methods 5D and 29. The search identified four VCS as
possible alternatives to EPA Method 5. EPA determined that these four
standards were impractical alternatives to the EPA test methods.
Therefore, EPA does not intend to adopt these standards for this
purpose. The reasons for the determinations for the 4 methods are
discussed in a memorandum included in the docket for this action.
    Under 40 CFR 63.7(f) and 40 CFR 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