[Federal Register: July 1, 2008 (Volume 73, Number 127)] [Rules and Regulations] [Page 37727-37749] From the Federal Register Online via GPO Access [wais.access.gpo.gov] [DOCID:fr01jy08-11] [[Page 37727]] ----------------------------------------------------------------------- Part V Environmental Protection Agency ----------------------------------------------------------------------- 40 CFR Part 63 National Emission Standards for Hazardous Air Pollutants: Area Source Standards for Plating and Polishing Operations; Final Rule [[Page 37728]] ----------------------------------------------------------------------- ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 63 [EPA-HQ-OAR-2005-0084; FRL-8581-3] RIN 2060-AM37 National Emission Standards for Hazardous Air Pollutants: Area Source Standards for Plating and Polishing Operations AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule. ----------------------------------------------------------------------- SUMMARY: We are issuing national emission standards for control of hazardous air pollutants (HAP) for the plating and polishing area source category. This final rule establishes emission standards in the form of management practices for new and existing tanks, thermal spraying equipment, and mechanical polishing equipment in certain plating and polishing processes. These final emission standards reflect EPA's determination regarding the generally achievable control technology (GACT) and/or management practices for the area source category. DATES: This final rule is effective on July 1, 2008. ADDRESSES: EPA has established a docket for this action under Docket ID No. EPA-HQ-OAR-2005-0084. All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some information is not publicly available, e.g., confidential business information or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy form. Publicly available docket materials are available either electronically through http:// www.regulations.gov or in hard copy at the EPA Docket Center, Public Reading Room, EPA West, Room 3334, 1301 Constitution Ave., NW., Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744, and the telephone number for the Air Docket is (202) 566-1742. FOR FURTHER INFORMATION CONTACT: Dr. Donna Lee Jones, Sector Policies and Programs Division, Office of Air Quality Planning and Standards (D243-02), Environmental Protection Agency, Research Triangle Park, North Carolina 27711, telephone number: (919) 541-5251; fax number: (919) 541-3207; e-mail address: jones.donnalee@epa.gov. SUPPLEMENTARY INFORMATION: Outline. The SUPPLEMENTARY INFORMATION in this preamble is organized as follows: I. General Information A. Does this action apply to me? B. Where can I get a copy of this document? C. Judicial Review II. Background Information for Final Area Source Standards III. Summary of Final Rule and Changes Since Proposal A. Summary of Changes Since Proposal B. Summary of Final Rule IV. Exemption of Area Source Category From Title V Permitting Requirements V. Summary of Comments and Responses A. Applicability B. Affected Source C. GACT D. Equipment Standards E. Management Practices F. Compliance Demonstrations G. Burden H. Miscellaneous I. Non-Significant Comments VI. Impacts of Final Area Source Standards A. What are the air impacts? B. What are the cost impacts? C. What are the economic impacts? D. What are the non-air health, environmental, and energy impacts? VII. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review B. Paperwork Reduction Act C. Regulatory Flexibility Act D. Unfunded Mandates Reform Act E. Executive Order 13132: Federalism F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments G. Executive Order 13045: Protection of Children From Environmental Health and Safety Risks H. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use I. National Technology Transfer Advancement Act J. Executive Order 12898: Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations K. Congressional Review Act I. General Information A. Does this action apply to me? The regulated category and entities potentially affected by this final action include: ---------------------------------------------------------------------------------------------------------------- Category NAICS code\1\ Examples of regulated entities ---------------------------------------------------------------------------------------------------------------- Industry * * *....................... 332813 Area source facilities engaged in any one or more types of nonchromium electroplating; electropolishing; electroforming; electroless plating, including thermal metal spraying, chromate conversion coating, and coloring; or mechanical polishing of metals and formed products for the trade. Regulated sources do not include chromium electroplating and chromium anodizing sources, as those sources are subject to 40 CFR part 63, subpart N, ``Chromium Emissions From Hard and Decorative Chromium Electroplating and Chromium Anodizing Tanks.'' Manufacturing........................ 32, 33 Area source establishments engaged in one or more types of nonchromium electroplating; electropolishing; electroforming; electroless plating, including thermal metal spraying, chromate conversion coating, and coloring; or mechanical polishing of metals and formed products for the trade. Examples include: 33251, Hardware Manufacturing; 323111, Commercial Gravure Printing; 332116, Metal Stamping; 332722, Bolt, Nut, Screw, Rivet, and Washer Manufacturing; 332811, Metal Heat Treating; 332812, Metal Coating, Engraving (except Jewelry and Silverware), and Allied Services to Manufacturers; 332913, Plumbing Fixture Fitting and Trim Manufacturing; Other Metal Valve and Pipe Fitting Manufacturing; 332999, All Other Miscellaneous Fabricated Metal Product Manufacturing; 334412, Bare Printed Circuit Board Manufacturing; 336412, Aircraft Engine and Engine Parts Manufacturing; and 339911, Jewelry (except Costume) Manufacturing. ---------------------------------------------------------------------------------------------------------------- \1\ North American Industry Classification System. This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. To determine whether your facility will be regulated by this action, you should examine the applicability criteria in 40 CFR 63.11504, ``Am I subject to this subpart?'' of subpart WWWWWW (National Emission Standards for Hazardous Air Pollutants (NESHAP): Area Source Standards for Plating and [[Page 37729]] Polishing Operations). If you have any questions regarding the applicability of this action to a particular entity, consult either the air permit authority for the entity or your EPA regional representative as listed in Sec. 63.13 of the General Provisions to part 63 (40 CFR part 63, subpart A). B. Where can I get a copy of this document? In addition to being available in the docket, an electronic copy of this final action will also be available on the Worldwide Web (WWW) through the Technology Transfer Network (TTN). Following signature, a copy of the final action will be posted on the TTN's policy and guidance page for newly proposed or promulgated rules at the following address: http://www.epa.gov/ttn/oarpg/. The TTN provides information and technology exchange in various areas of air pollution control. C. Judicial Review Under section 307(b)(1) of the Clean Air Act (CAA), judicial review of these final rules is available only by filing a petition for review in the U.S. Court of Appeals for the District of Columbia Circuit by September 2, 2008. Under section 307(d)(7)(B) of the CAA, only an objection to these final rules that was raised with reasonable specificity during the period for public comment can be raised during judicial review. This section also provides a mechanism for us to convene a proceeding for reconsideration, ``[i]f the person raising an objection can demonstrate to EPA that it was impracticable to raise such objection within [the period for public comment] or if the grounds for such objection arose after the period for public comment (but within the time specified for judicial review) and if such objection is of central relevance to the outcome of this rule.'' Any person seeking to make such a demonstration to us should submit a Petition for Reconsideration to the Office of the Administrator, Environmental Protection Agency, Room 3000, Ariel Rios Building, 1200 Pennsylvania Ave., NW., Washington, DC 20004, with a copy to the person listed in the preceding FOR FURTHER INFORMATION CONTACT section, and the Associate General Counsel for the Air and Radiation Law Office, Office of General Counsel (Mail Code 2344A), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20004. Moreover, under section 307(d)(7)(B) of the CAA, only an objection to these final rules that was raised with reasonable specificity during the period for public comment can be raised during judicial review. Moreover, under section 307(b)(2) of the CAA, the requirements established by these final rules may not be challenged separately in any civil or criminal proceedings brought by EPA to enforce these requirements. II. Background Information for Final Area Source Standards Section 112(d) of the CAA requires us to establish NESHAP for both major and area sources of HAP that are listed for regulation under CAA section 112(c). A major source emits or has the potential to emit 10 tons per year (tpy) or more of any single HAP or 25 tpy or more of any combination of HAP. An area source is a stationary source that is not a major source. Section 112(k)(3)(B) of the CAA calls for EPA to identify at least 30 HAP which, as the result of emissions from area sources, pose the greatest threat to public health in the largest number of urban areas. EPA implemented this provision in 1999 in the Integrated Urban Air Toxics Strategy, (64 FR 38715, July 19, 1999). Specifically, in the Strategy, EPA identified 30 HAP that pose the greatest potential health threat in urban areas, and these HAP are referred to as the ``30 urban HAP.'' Section 112(c)(3) requires EPA to list sufficient categories or subcategories of area sources to ensure that area sources representing 90 percent of the emissions of the 30 urban HAP are subject to regulation. We implemented these requirements through the Integrated Urban Air Toxics Strategy (64 FR 38715, July 19, 1999). A primary goal of the Strategy is to achieve a 75 percent reduction in cancer incidence attributable to HAP emitted from stationary sources. Under CAA section 112(d)(5), we may elect to promulgate standards or requirements for area sources ``which provide for the use of generally available control technologies or management practices by such sources to reduce emissions of hazardous air pollutants.'' Additional information on GACT is found in the Senate report on the legislation (Senate Report Number 101-228, December 20, 1989), which describes GACT as: * * * methods, practices and techniques which are commercially available and appropriate for application by the sources in the category considering economic impacts and the technical capabilities of the firms to operate and maintain the emissions control systems. Consistent with the legislative history, we can consider costs and economic impacts in determining GACT, which is particularly important when developing regulations for source categories that have many small businesses. Determining what constitutes GACT involves considering the control technologies and management practices that are generally available to the area sources in the source category. We also consider the standards applicable to major sources in the same industrial sector to determine if the control technologies and management practices are transferable and generally available to area sources. In appropriate circumstances, we may also consider technologies and practices at area and major sources in similar categories to determine whether such technologies and practices could be considered generally available for the area source category at issue. Finally, as we have already noted, in determining GACT for a particular area source category, we consider the costs and economic impacts of available control technologies and management practices on that category. We are establishing these national emission standards in response to a court-ordered deadline that requires EPA to issue standards for 11 source categories listed pursuant to section 112(c)(3) and (k) by June 15, 2008 (Sierra Club v. Johnson, no. 01-1537, D.D.C., March 2006). We have already issued regulations addressing one of the 11 source categories. See regulations for Wood Preserving (72 FR 38864, July 16, 2007.) Other rulemakings will include standards for the remaining source categories that are due in June 2008. III. Summary of Final Rule and Changes Since Proposal A. Summary of Changes Since Proposal 1. Applicability In response to comments, we made several changes to clarify the applicability of this final rule. Specifically, we have revised the definition of plating and polishing metal HAP to mean any compound of cadmium, chromium, lead, manganese, and nickel. We further clarified that the term plating and polishing metal HAP includes the elemental form of these metals, with the exception of lead. We also clarified throughout this final rule that this final rule applies only to sources that use the plating and polishing metal HAP (i.e., tanks that contain one or more of the metal HAP, thermal spraying operations that apply one or more of the metal HAP, and dry mechanical polishing operations that emit one or more of the plating and polishing metal HAP). We have revised Sec. 63.11505, ``What parts of my plant does this subpart [[Page 37730]] cover?'', to clarify that this final rule does not apply to any of the following sources: Any source subject to 40 CFR part 63, subpart N, National Emission Standards for Chromium Emissions from Hard and Decorative Chromium Electroplating and Chromium Anodizing Tanks (Chromium Electroplating NESHAP); process units used strictly for educational purposes; thermal spraying conducted to repair surfaces; polishing conducted to restore the original finish to a surface; and any plating and polishing processes that do not use any materials that contain cadmium, chromium, lead, or nickel in amounts of at least 0.1 percent by weight, and do not use any materials that contain manganese in amounts of at least 1.0 percent by weight, as reported on the Material Safety Data Sheet for the material. We do not believe that HAP emissions from these activities were part of the inventory that supported the area source listing decision for this category because the emissions from these activities are very low. We also corrected an error in Sec. 63.11505, ``What parts of my plant does this subpart cover?'', concerning the definitions of new and existing sources. In the final rule, an existing source is a source for which construction or reconstruction began on or before March 14, 2008 (i.e., the proposal date), and new source is defined as a source for which construction or reconstruction began after March 14, 2008. 2. Standards and Compliance Requirements We have revised the compliance options specified in Sec. 63.11507, ``What are my standards and management practices?'', of the final rule. We have clarified in Sec. 63.11507(a) that if wetting agent/fume suppressant (WAFS) is included in the bath chemicals, and the WAFS is added according to the manufacturer's instruction, plants are not required to add more WAFS to the tank. We also have added a third compliance option for affected electrolytic process tanks. In addition to using WAFS or exhausting emissions to a control device, the final rule allows owners and operators of affected tanks to comply by using tank covers. To meet this option for batch process tanks, a tank cover will have to be used during at least 95 percent of the process operating time. As mentioned above, for continuous electrolytic process tanks, covers must be used whenever the process is operating. We also expanded the definition of tank cover in Sec. 63.11507 to clarify that, for continuous process tanks, the tank surface area must be covered at least 75 percent. We have clarified the requirements for tanks that are used both for short-term or ``flash'' plating and for longer plating operations that do not meet the definition of short-term plating (i.e., ``long-term'' plating). Section 63.11507(c), ``What are my standards and management practices,'' of the final rule specifies that owners or operators must comply with the requirements for short- term plating whenever short-term plating is performed in the tank and must comply with the requirements for long-term plating whenever long- term plating is performed. We have clarified the requirements for cyanide electroplating tanks in Sec. 63.11507(d) of the final rule, ``What are my standards and management practices''. In Sec. 63.11507(f) of the final rule, we have clarified the requirements for thermal spraying operations. The final rule distinguishes between permanent and temporary thermal spraying. The requirements for permanent thermal spraying are the same as in the proposed rule. However, temporary thermal spraying operations are required only to meet the applicable management practices specified in the final rule. We also have added a definition for temporary thermal spraying to Sec. 63.11511, ``What definitions apply to this subpart?'', of the final rule to clarify whether a thermal spraying operation is temporary or permanent. In Sec. 63.11507(g), ``What are my standards and management practices?'', of the final rule, we have expanded the list of management practices. We also have clarified that this final rule requires facilities to implement only those listed management practices that are applicable and that the practices are to be implemented as practicable. In addition, we have revised some of the specific practices that were listed in the proposed rule, including the practices for minimizing bath agitation, maximizing drainage of bath liquid from parts as they are removed from the tank, using tank covers, and heating tank baths. We have made several changes to Sec. 63.11508, ``What are my compliance requirements?'', of the final rule to clarify the requirements for initial and continuous compliance. The changes include adding the compliance requirements for continuous electrolytic process tanks and temporary thermal spraying operations, and clarifying the compliance requirements for cyanide electroplating tanks. We have also changed the process by which facilities seek approval to use an alternative equipment standard other than those specifically listed in this final rule. In the proposal we indicated that facilities that would like to use equipment other than those listed must seek approval to do so pursuant to the procedures in Sec. 63.6(g) of the General Provisions to part 63. We did not receive any comments on this part of the proposal, nor did any commenters identify any alternative equipment standards that are equivalent to those specified in this final rule. We believe that facilities should be able to request approval to use an alternative equipment standard, and therefore, we have identified two different options available to facilities that would like to use alternative equipment that achieves at least equivalent HAP emission reductions as the controls specified in this final rule: (1) Facilities may petition the Agency to amend this final rule pursuant to section 553(e) of the Administrative Procedure Act, or (2) facilities may work with State permitting authorities pursuant to EPA's regulations at 40 CFR Subpart E (``Approval of State Programs and Delegation of Federal Authorities''). Subpart E implements section 112(l) of the CAA which authorizes EPA to approve alternative State/ Local/Tribal HAP standards or programs when such requirements are demonstrated to be no less stringent than EPA promulgated standards. We believe that these options are more appropriate mechanisms for area sources subject to section 112(d)(5) rules to obtain approval of alternative equipment standards. 3. Reporting and Recordkeeping Requirements We have revised Sec. 63.11509, ``What are my notification, reporting, and recordkeeping requirements?'', of the final rule to eliminate the requirement for submitting annual compliance reports. The final rule still requires owners or operators of affected sources to prepare annual compliance certifications and keep the certifications on-site and available for review. However, the certifications need only be submitted if a deviation occurred during the year, in which case the certification and report of deviations must be submitted to your state or local permitting authority. The final rule also specifies the deadline for preparing the certifications as January 31 of the year immediately following the reporting period. 4. Definitions We have made several changes to the definitions in Sec. 63.11511, ``What definitions apply to this subpart?'', of the final rule and have added [[Page 37731]] definitions for other terms used in the final rule. We added definitions for batch electrolytic process tank, continuous electrolytic process tank, tank cover for continuous process units, and temporary thermal spraying. We have revised the definitions of cyanide plating, dry mechanical polishing, flash electroplating, and plating and polishing metal HAP. 5. Other We also corrected some typographical errors that appeared in various sections of the proposed rule. B. Summary of Final Rule 1. Applicability The final subpart WWWWWW applies to new and existing area sources of plating and polishing that use any of the plating and polishing metal HAP (cadmium, chromium,\1\ lead, manganese, or nickel) in tanks or thermal spraying processes; and dry mechanical polishing operations used to remove or polish products with these metal HAP after plating. A new source is any affected source where you commenced construction or reconstruction of the affected source after March 14, 2008. --------------------------------------------------------------------------- \1\ Regulated sources do not include chromium electroplating and chromium anodizing sources, as those sources are subject to 40 CFR part 63, subpart N, ``Chromium Emissions From Hard and Decorative Chromium Electroplating and Chromium Anodizing Tanks.'' --------------------------------------------------------------------------- The final rule applies to the following sources: Any tank that contains one or more of the plating and polishing metal HAP and is used for non-chromium electroplating; electroforming; electropolishing; electroless plating or other non-electrolytic metal coating operations, such as chromate conversion coating, nickel acetate sealing, sodium dichromate sealing, and manganese phosphate coating; any thermal spraying operation that applies one or more of the plating and polishing metal HAP; and any dry mechanical polishing operation that emits one or more of the plating and polishing metal HAP. This final rule does not apply to the following sources: Process units that are subject to the Chromium Electroplating NESHAP, research and development process units, process units that are used strictly for educational purposes; thermal spraying conducted to repair surfaces; dry mechanical polishing conducted to restore the original finish to a surface before plating; and any plating or polishing process that only uses materials that do not contain cadmium, chromium, lead, or nickel in amounts of at least 0.1 percent by weight, and do not contain manganese in amounts of at least 1.0 percent by weight, as reported on the Material Safety Data Sheet for the material. As stated above, we believe that HAP emissions from these activities were not part of the inventory that supported the area source listing decision for this category because the emissions from these activities are small. 2. Compliance Dates All existing area source facilities with operations subject to this final rule must comply with the final rule requirements for their existing operations no later than 2 years after the date of publication of the final rule in the Federal Register. The owner or operator of a new area source operation must comply with these final rule requirements by the date of publication of the final rule in the Federal Register or upon startup, whichever is later. 3. Standards The final rule requires owners or operators of affected non-cyanide plating and polishing tanks to meet one of the following three compliance options, which are described in further detail below: Use WAFS in the tank, capture and control emissions using an emission control device, or use a tank cover. To meet the requirement for WAFS, the owner or operator must use a bath chemistry that includes a WAFS or must add WAFS separately to the bath. In either case, the owner or operator will be required to maintain the level of WAFS in the tank according to manufacturer's specifications and requirements. No additional WAFS needs to be added beyond the manufacturer's specifications and requirements. To meet the control device option, the owner or operator must install, operate, and maintain a control system that includes a capture device designed to capture the plating and polishing metal HAP emissions from the tank and to transport the metal HAP emissions to a composite mesh pad (CMP), packed bed scrubber (PBS), or mesh pad mist eliminator (MPME). The tank cover option distinguishes between batch process tanks and continuous process tanks. For batch process tanks, the cover must enclose the entire surface area of the tank and must be in place during at least 95 percent of the process operating time; for continuous process tanks, the tank surface area must be covered at least 75 percent during all periods of process operation. For short-term or flash plating tanks, the final rule requires owners or operators to limit plating time to no more than 1 cumulative hour per day or 3 cumulative minutes per hour of plating time, or to use a tank cover during at least 95 percent of the plating time. For affected cyanide plating tanks, owners or operators must perform and record a one-time measurement of pH in the tank bath. In addition to the above requirements, owners or operators of all affected plating and polishing tanks are required to implement, as practicable, the applicable management practices listed in Sec. 63.11507(g), ``What are my standards and management practices?'', and certify that they have implemented the management practices. For any existing affected permanent thermal spraying processes, the final rule will require a control system that is designed to provide capture of the plating and polishing metal HAP emissions from the thermal spraying operation and transport the metal HAP emissions to a water curtain, fabric filter, or high efficiency particulate air (HEPA) filter. For new permanent thermal spraying operations, the final rule requires owners or operators to install a control system that is designed to provide capture and control of the metal HAP emissions from these sources and that transports the emissions from the affected source to a fabric filter, or HEPA filter. For any temporary thermal spraying operation, the final rule requires owners or operators to document the length of time and location of the temporary thermal spraying, and to meet applicable management practices listed in Sec. 63.11507(g), ``What are my standards and management practices?'', such as, but not limited to, vacuuming or sweeping following the operation. For any new and existing affected dry mechanical polishing operation, the final rule requires a control system that is designed to capture the plating and polishing metal HAP emissions from dry mechanical polishing operations and transport the metal HAP emissions to a cartridge, fabric, or HEPA filter. 4. Compliance Requirements To demonstrate compliance with the final rule, owners or operators of affected new or existing plating and polishing tanks will have to implement one or more of the equipment standards specified in Sec. 63.11507, ``What are my standards and management practices?'', of the final rule and certify that they have implemented the equipment standard. Owners or operators of affected new or existing non-cyanide electrolytic process tanks that comply with the WAFS requirement must add WAFS to [[Page 37732]] the tank and replenish the WAFS levels in the tank, according to the manufacturer's specifications and operating instructions, and certify that they have done so. Owners or operators of affected new or existing non-cyanide electrolytic process tanks that comply with the control device option must install, operate, and maintain a control system that captures the metal HAP emissions from plating tanks and transports the emissions to CMP, PBS, or MPME, and certify that they have done so. Owners or operators of affected new or existing non-cyanide electrolytic process tanks that comply using the tank cover option must certify that they have installed the tank cover and are operating the tank with the cover in place, as required by the final rule. Owners or operators of affected cyanide plating tanks must perform a one-time measurement of pH, record the measurement, and certify that they have done so. The owner or operator of a facility that uses an affected flash electroplating process that chooses to comply by limiting the plating time must demonstrate compliance by operating the affected tank no more than 1 cumulative hour per day or 3 cumulative minutes per hour, and documenting that they have done so. Owners or operators of affected flash electroplating tanks that choose to comply by using a tank cover must certify that they have installed the tank cover and are operating the tank with the cover in place for at least 95 percent of the plating time. In addition to the above requirements, owners or operators of all affected plating and polishing tanks must demonstrate compliance by implementing the applicable management and pollution prevention practices specified in Sec. 63.11507(g), ``What are my standards and management practices?'', of the final rule, as practicable, maintaining the appropriate records to document compliance, and certifying that they have implemented the management practices. The owners or operators of affected new and existing dry mechanical polishing processes must demonstrate compliance by installing, operating, and maintaining an emissions control system according to the manufacturer's specifications and operating instructions that is designed to provide capture of the metal HAP emissions from these sources and to transport these emissions from the affected source to a cartridge, fabric, or HEPA filter. In any case, the owner or operator must also certify that the control system has been installed and is being operated and maintained according to manufacturer's specifications. Owners or operators of affected existing permanent thermal spraying processes must demonstrate compliance by installing, operating, and maintaining an emissions control system according to the manufacturer's specifications and operating instructions. The control system must be designed to provide capture of the metal HAP emissions from these sources and to transport the emissions from the affected source to a water curtain, fabric filter, or HEPA filter. The owner or operator must also certify that the control system has been installed and is being operated and maintained according to manufacturer's specifications. Owners or operators of new permanent thermal spraying processes must demonstrate initial compliance by installing, operating, and maintaining an emissions control system according to the manufacturer's specifications and operating instructions. The control system must be designed to provide capture of the metal HAP emissions from these sources and transport the emissions from the affected source to a fabric or HEPA filter, device. The owner or operator must also certify that the control system has been installed and is being operated and maintained according to manufacturer's specifications. Owners or operators of affected existing temporary thermal spraying processes must demonstrate compliance by documenting that the thermal spraying occurs for less than one hour per day and is performed in situ; and by implementing the applicable management and pollution prevention practices specified in Sec. 63.11507(g), ``What are my standards and management practices?'', of the final rule, as practicable, maintaining the appropriate records to document compliance, and certifying that they have implemented the management practices. 5. Notification, Recordkeeping, and Reporting Requirements The owner or operator of a new or existing affected source is required to comply with certain requirements of the General Provisions to part 63, which are identified in Table 1 of the final rule. Each facility is required to submit an Initial Notification and a Notification of Compliance Status according to the requirements in 40 CFR 63.9 of the General Provisions to part 63. The owner or operator of an affected source is required to prepare and keep on-site an annual compliance certification. If any deviations occurred during the reporting year, the owner or operator will be required to submit the compliance certification along with a report that describes the deviations and the corrective action taken. Owners and operators also are required to maintain all records that demonstrate initial and continuous compliance with this final rule, including records of all required notifications and reports, with supporting documentation; and records showing compliance with the management and pollution prevention practices. Owners and operators must maintain records of the following, if applicable: For cyanide electroplating tanks, the one-time pH measurement value; for non- cyanide electroplating tanks, the amount and frequency of WAFS additions; for flash electroplating tanks, the daily plating time; for electroplating tanks using covers as a control option, the time the tank is operated with a cover in place; for continuous electroplating tanks, the amount of tank surface covered and the time the tank is operated with a cover in place; and maintenance of any required control systems. IV. Exemption of Area Source Category From Title V Permitting Requirements We did not receive any comments on our proposal to exempt facilities in the Plating and Polishing area source category from title V permitting requirements. Therefore, this final rule does not require facilities in this source category to obtain an operating permit under 40 CFR part 70 or part 71, provided they are not otherwise required to obtain a permit under the part 70 or part 71 regulations. V. Summary of Comments and Responses The significant comments and responses are summarized and discussed below according to the comment subject. A. Applicability 1. Delisting Comment: One commenter stated that the Plating and Polishing source category should be delisted. The commenter explained that in the past, when EPA has determined that a NESHAP source category was no longer a significant source of the targeted HAPs, it was delisted. The commenter noted that no additional emission reductions are expected as a result of this rule, which is only codifying the voluntary efforts of industry, and that small businesses, such as those affected [[Page 37733]] by the proposed rule, should not be burdened by a rule that provides no environmental benefit. Response: As noted in the preamble to the proposed rule, Section 112(k)(3)(B) of the CAA requires EPA to identify at least 30 HAP which, as the result of emissions from area sources, pose the greatest threat to public health in urban areas. Section 112(c)(3) requires EPA to list sufficient categories or subcategories of area sources to ensure that area sources representing 90 percent of the emissions of the 30 urban HAP are subject to regulation. This provision requires that we subject to regulation area source categories representing 90 percent of the emissions of cadmium, chromium, lead, manganese and nickel. See section 112(c)(3). Since plating and polishing is one of the area source categories that we need to meet the section 112(c)(3) requirement, we are issuing regulations for this source category. The commenter is correct in stating that no additional emissions reductions are expected as a result of the final rule. However, we disagree with the commenter's statement that this rule will result in no environmental benefit. This final rule will help to ensure that future emissions will be limited to the same levels currently achieved; if the source category were to be delisted, as suggested by the commenter, there would be no such limit of future emissions from existing and new plating and polishing sources. Comment: One commenter explained that in situ thermal spraying is sometimes performed in confined areas in the interior of vessels. The commenter explained that these jobs are of short duration (approximately 1 hour) and infrequent in nature (up to 5 times per year). The commenter noted that setting up a temporary emissions capture system for this type of thermal spray operation is impracticable and economically infeasible because it would take an estimated 32 hours to set up and remove the temporary capture system. As an alternative, the commenter recommended allowing up to 2 pounds per year of metal HAP emissions from uncontrolled thermal spraying if the operation is temporary and capture and control is impractical. Response: We recognize that temporary in situ thermal spraying operations should not be subject to the same requirements as permanent thermal spraying operations for the reasons outlined by the commenter. To address this type of operation, we have included a definition of short-term thermal spraying in, ``What definitions apply to this subpart?'', of the final rule. We also have revised, ``What are my standards and management practices?'', in the final rule to address thermal spraying in the same manner as another time-limited operation, flash plating, that is subject only to management practices. In addition, we have added sweeping and/or vacuuming as a management practice specifically with short-term thermal spraying operations in mind, but also as a possible management practice for the other plating and polishing operations, to be done ``as practicable.'' Also, as explained above, we believe that repair and maintenance operations were not part of the source category in the inventory and, therefore, we are not including requirements for these practices in this final rule. Since some of the thermal spraying repair and maintenance operations may also be performed in situ, the number of in-situ thermal spraying operations at a facility affected by this final rule may be reduced. 2. Regulated Pollutant Comment: One commenter recommends that EPA clarify whether elemental metals (other than lead) are considered ``Plating and Polishing metal HAP''. The commenter explained that in thermal spraying, the metallic coating applied is in the elemental form both before and after application. Response: We acknowledge that some thermal spraying operations use one of the plating and polishing metal HAP in elemental form. The metal compounds on the HAP list, except for lead, include the elemental form, as per the footnote in the CAA section 112(b)(1) that reads: ``For all listings above which contain the word `compounds' and for glycol ethers, the following applies: Unless otherwise specified, these listings are defined as including any unique chemical substance that contains the named chemical (i.e., antimony, arsenic, etc.) as part of that chemical's infrastructure.'' Moreover, publications by the American Welding Society and the California Air Resources Board state that compounds of metal HAP may form and be emitted from the thermal spraying process even when the metal used is in its elemental form. Furthermore, elemental metals are emitted from the process as particulate matter (PM), and PM is a surrogate for the metal HAP at issue here. For the above reasons, we have revised the definition of plating and polishing metal HAP in, ``What definitions apply to this subpart?'', of the final to indicate that, with the exception of lead, this final rule also applies to metals in their elemental form. Comment: One commenter noted that thermal spray operations are sometimes conducted with non-HAP metals that may contain small amounts of one or more of the target HAP metals as impurities. The commenter recommended that EPA revise the definition of Plating and Polishing metal HAP to include those metal HAPs present in quantities greater than 0.1 percent for carcinogens and greater than 1.0 percent for other metal HAP. They also recommend revising the definition of thermal spraying to include the following language: ``Only thermal spray materials containing greater than 1 percent (0.1 percent for carcinogens) of Plating and Polishing Metal HAP as reported on a Material Safety Data Sheet are subject to this rule.'' Another commenter requested that we clarify that this rule does not apply to all plating tanks with cyanide, but only those that contain one or more of the five metal plating HAP. Response: It was not our intent for this rule to apply to non-HAP materials that contain trace levels of one or more of the plating and polishing metal HAP as impurities. Therefore, we have revised the definition of plating and polishing metal HAP in, ``What definitions apply to this subpart?'', to clarify that this final rule does not apply to materials that contain any of the metal HAP in concentrations less than 0.1 percent for carcinogens and less than 1.0 percent for other metals, as reported in the Material Safety Data Sheet, since these emissions were not part of the 1990 inventory used for the area source category listing. We also have clarified that this final rule only applies to tanks, including cyanide tanks, that contain or have the potential to emit the five metal plating HAP. 3. Thresholds and Exemptions Comment: One commenter believes EPA should establish a threshold to exclude very small plating and polishing area sources from the applicability of the proposed rule. The commenter noted that, for each of the 2,900 area sources, the number of plating and polishing tanks ranged from 1 to 20 tanks, with an average of 10 tanks, and the number of polishing and thermal spray lines ranged from 1 to 10 lines, with an average of 5 lines. The commenter stated that a threshold for the applicability of the proposed rule would result in no net loss in reductions of metal HAP emissions, would significantly minimize the regulatory burden on small plating and polishing area sources, and would reduce the [[Page 37734]] administrative burden on federal and state regulatory agencies. Response: We understand the commenter's concern regarding the potential impact of this final rule on small facilities. However, we cannot establish an applicability threshold for small plating facilities for the following reasons. Plating and polishing is one of the area source categories needed to meet the section 112(c)(3) requirement that we subject to regulation, area source categories representing 90 percent of the emissions of cadmium, chromium, lead, manganese and nickel. See section 112(c)(3). We recognize that the plating and polishing area source category is comprised of a large number of relatively small plating and polishing facilities. Although area sources individually may be considered low-emitting sources, collectively, they are not. The commenter's suggestion fails to address the requirement of section 112(c)(3), and as discussed above, we previously determined that we need the plating and polishing area source category to meet this requirement, which provides that EPA regulate area sources accounting for 90 percent of the emissions of the 30 urban HAP. However, in developing the proposed rule, we attempted to minimize the burden on small facilities while ensuring that this final rule includes sufficient requirements for ensuring compliance. As discussed more fully below, we have incorporated certain changes in the final rule to further reduce the burden to small facilities. Finally, we are planning various outreach activities specifically for this industry to help affected facilities comply with the final rule to further reduce the overall burden. Comment: One commenter requested an exemption for maintenance activities that require thermal spraying for repair (e.g., that would take place on an oil rig or platform) and maintenance activities that might involve polishing a plated surface to restore the original finish in order to accomplish its intended task (e.g., a sealing plate or hydraulic cylinder). The commenter explained that the low levels of emissions from these operations justifies exempting them from the proposed rule. Another commenter remarked that EPA should exempt small tanks that are used only for educational purposes. The commenter believes that such an exemption would be consistent with the exemption for research and development process units specified in, ``What parts of my plant does this subpart cover?'', of the proposed rule. Response: The commenter has misconstrued this rule's treatment of research and development process units specified in, ``What parts of my plant does this subpart cover?''. Research and development process units are not subject to this rule because the source category does not cover these activities. Similarly, based on reasonable assumptions about the practices included in the 1990 112(k) urban HAP inventory, we have concluded that the processes that contributed to plating and polishing metal HAP emissions most likely did not include thermal spraying operations used for repairing surfaces, polishing operations used to restore original finish, or tanks used strictly for educational purposes. As a result, we have revised, ``What parts of my plant does this subpart cover?'', of the final rule by adding a new paragraph (g) to clarify the scope of the listed source category addressed in this final rule. The new paragraph provides that the plating and polishing area source category does not include thermal spraying operations for repair, polishing operations used to restore original finish, or tanks used strictly for educational purposes. Comment: One commenter stated that EPA should exempt chromate conversion coating tanks from the plating and polishing rule. The commenter states that the chromium conversion coating process does not utilize an electrical current or apply heat to the tank, so there is nothing to drive emissions from the process. The commenter also pointed out that chromium conversion tanks were exempted from the Chromium Electroplating NESHAP; communication in the docket from OSHA states that employee exposures are very low; and the proposal does not include any emissions estimates for chromium conversion coating. Response: We disagree with the commenter that chromium conversion tanks should be exempt from this rule. The commenter requests an exemption, but fails to demonstrate that emissions from such tanks were not included as part of EPA's inventory analysis when it listed the area source category. As explained above, we need to regulate the plating and polishing area source category in order to meet the section 112(c)(3) requirement that we subject to regulation area source categories representing 90 percent of the emissions of cadmium, chromium, lead, manganese and nickel. Moreover, the proposed management practices represent pollution prevention activities for air emissions. Incidentally, these practices also help to prevent pollution associated with water discharges and the chromate conversion process. It is our understanding that these practices, when practicable, also can result in cost savings for many facilities, which thereby reduces the net burden. The lack of emission data is not in itself a reason to exempt sources when other information indicates that HAP emissions from those sources are possible. Likewise, the lack of an electrical current in chromium conversion baths is not a reason to exempt those processes since electroless nickel plating baths also are operated without electrical current applied to the bath, yet the data show that there are metal HAP emissions from electroless nickel plating tanks. Comment: One commenter stated that EPA should exempt all continuous plating operations from the proposed rule. The commenter reasoned that exemption of continuous plating from this rule is appropriate based on the insignificant number of continuous plating operations and the miniscule amount of potential HAP emissions from the process. The commenter explained that bubbling, which is the primary emissions mechanism for batch plating operations, does not occur in continuous plating. In addition, the commenter stated that the tanks are not agitated and have little surface area compared to the surface area of batch plating tanks. The commenter further stated that most of the surface area of continuous plating operations is covered. Response: We disagree with the commenter and are not providing the exemption requested. We recognize that the plating and polishing area source category is comprised of a large number of relatively small plating and polishing facilities. Although area sources individually may be considered low-emitting sources, collectively, they are not. HAP emissions from the processes identified by the commenter do occur, and the commenter has not demonstrated that emissions from such processes were not included as part of EPA's inventory analysis when it listed the area source category. As explained above, we need to regulate the plating and polishing area source category to meet the 90 percent requirement in section 112(c)(3) for emissions of cadmium, chromium, lead, manganese and nickel. In developing this final rule, we have attempted to minimize the burden on the sources identified by the commenter. At the time of proposal, we had no information on the differences between batch plating processes and continuous plating processes. We acknowledge that the continuous electroplating processes differ [[Page 37735]] significantly from batch plating processes for the reasons identified by this commenter; another commenter also pointed out these differences. To account for the differences between continuous plating operations and batch plating operations, we are including in the final rule separate requirements for continuous plating operations, which should address the commenter's concerns. Under the final rule, continuous plating operations will have three options for complying with the standard. Owners or operators of affected continuous plating tanks can comply by covering at least 75 percent of the tank whenever the process is operating. As discussed more fully below in Section C, this option represents GACT for continuous plating tanks. Owners or operators can also comply by using WAFS in the plating bath or by using controls, either of which is equivalent to GACT for continuous plating tanks. We are also revising the management practices in the final rule by including practices specifically used with continuous plating operations. B. Affected Source Comment: One commenter stated that the definition of dry mechanical polishing in ``What definitions apply to this subpart?'', is ambiguous and inconsistent with the description of the process in the preamble to the proposed rule. The commenter suggested the following alternative wording: ``Dry mechanical polishing means a process used for removing defects from and smoothing the surface of finished metals and formed products after plating, using hard-face abrasive wheels or belts and where no liquids or fluids are used to trap the removed metal particles.'' Another commenter noted that the proposed rule does not provide a definition for the term ``polishing.'' The commenter also remarked that the proposed rule appears to apply only to the polishing of metals or finished products after they have been plated, and not to polishing done before plating, or to grinding and machine operations. Response: We agree with both commenters that the definition of dry mechanical polishing in the proposed rule should be clarified. We are revising the definition of dry mechanical polishing in, ``What definitions apply to this subpart?'', of the final rule, as suggested by the commenters to help clarify which types of operations are subject to this final rule. In light of the revised definition of dry mechanical polishing in the final rule, we do not believe it is necessary to separately define ``polishing.'' With respect to grinding and machining operations, emissions from these sources are covered under 40 CFR part 63, subpart XXXXXX--National Emission Standards for Hazardous Air Pollutants Area Source Standards for 9 Metal Fabrication and Finishing Source Categories, which we expect to finalize by June 15, 2008. Comment: One commenter suggested revising the definition of short- term or ``flash'' electroplating in, ``What definitions apply to this subpart?'', to reflect the full range of compliance options. The commenter noted that doing so would also be consistent with the preamble to the proposed rule. The commenter suggested revising the definition as follows: Short-term or ``flash'' electroplating means an electroplating process that is used no more than 1 hour per day or 3 minutes per hour in duration, or an electroplating process that has a cover in place 95 percent of the plating time. Response: We agree with the commenter's suggestion that the definition of short-term or ``flash'' electroplating in, ``What definitions apply to this subpart?'', should be revised to include the maximum duration of 1 hour per day, and we have revised the definition in the final rule accordingly. We do not agree with the commenter's suggestion that flash electroplating should be defined in terms of tank cover usage since flash electroplating is different from other electroplating solely on the amount of time is it performed, whereas using tank covers are a control option. However, as explained below, we have revised, ``What are my standards and management practices?'', to add paragraph (3), which provides the option of using tank covers during at least 95 percent of the process operating time as a compliance option for long-term plating processes (i.e., for all affected plating processes that are not short-term or flash processes). With this change, all batch electroplating processes, both long-term and short-term, will be allowed to use covers 95 percent of the process operating time to comply with this final rule. We believe this change addresses the commenter's concern. Comment: One commenter suggested that EPA clarify the requirements for tanks that are used for both flash electroplating and for other electroplating processes that are longer in duration. The commenter suggested such tanks should have to comply by meeting the requirements for the other types of electroplating processes, as specified in, ``What are my standards and management practices?'', of the proposed rule. Response: Our intent in, ``What parts of my plant does this subpart cover?'', of the proposed rule was to define affected source in terms of the plating and polishing process that is performed in the tank and not to define affected source as the physical tank structure. Therefore, in the case of a tank that is used for both flash plating and for any of the other type of plating process that would be subject to the requirements in, ``What are my standards and management practices?'', the requirements for flash plating requirements would apply when the tank is used for short-term plating, and the requirements for the other affected plating processes would apply when those processes are being conducted in the tank. We have revised the final rule to clarify this requirement. C. GACT Comment: Two commenters commented on how GACT was defined for the proposed rule and the relevance of that definition to continuous plating tanks. The commenters explained that, as proposed, owners or operators of continuous plating operations would be required to use either WAFS or a control device to comply with this rule. However, the commenters stated that the facility they represent does not use WAFS in their continuous nickel electroplating tanks, and that WAFS may not be feasible for the process. One commenter pointed out that for WAFS to be GACT for continuous plating processes, the technology must be commercially available and appropriate considering the economic impacts and technical capabilities. The commenters stated that WAFS are not used in continuous nickel electroplating tanks, and it is unknown if WAFS is a feasible control option for continuous nickel plating tanks; to make this feasibility determination would require lengthy and expensive trials. The commenters concluded that WAFS is not GACT for continuous nickel electroplating tanks. The commenters also stated that, as proposed, facilities that cannot use WAFS would have to install a control device, thereby making control devices GACT for such facilities even though EPA states in the preamble to the proposed rule that capture and control technology is cost-prohibitive and therefore not appropriate for GACT. Both commenters stated that the continuous plating tanks have relatively small surface areas and that emissions are negligible because there is no bubbling in, or agitation of, plating baths. One of the commenters stated [[Page 37736]] that the commenter's facility uses tank covers on their continuous plating tanks, but those covers cover about 80 percent of the surface area which does not meet the definition of tank cover in the proposed rule. The commenter pointed out that covers that totally enclose tanks are practical only for batch operations, and the commenter suggested revising the definition of tank cover to allow for partial covers over most of the open surface of the tank. Both commenters stated that because of the differences in the continuous plating process, continuous plating should not be required to use WAFS or control devices, but should be allowed to comply only with appropriate management practices. Response: As a result of these comments, we now recognize that continuous electroplating operations differ significantly from batch electroplating operations, that the use of WAFS may not be appropriate for all continuous electroplating operations, and that control devices should not be the only compliance option for this type of process. By consultation with other facilities that responded to our survey that perform continuous electroplating, we also now recognize that partial tank covers are the generally available technology for continuous electroplating tanks, and that partially covering the surface area of the tank is the most that could be used considering the equipment that is permanently positioned within the continuous plating tanks. Consequently, we have revised this final rule to provide separate requirements for continuous electroplating operations. In the final rule, continuous electroplating operations will be able to comply using tank covers that cover at least 75 percent of the tank surface, or by using WAFS or control devices as alternate compliance options equivalent to GACT. Although the commenter identified tank covers that cover 80 percent of the surface area, we chose 75 percent as GACT based on consultation with other facilities that perform continuous electroplating. This value is also a more practical percentage in terms of an accurate estimation. Finally, we have added the use of squeegee rolls as a management practice for continuous electroplating operations. D. Equipment Standards Comment: One commenter requested that EPA clarify that when WAFS are already included in the plating chemicals, the requirement is simply to identify the WAFS in the plating solution and add the plating solution to the tank. The commenter also requested that EPA clarify that when WAFS are added separately plants can comply by adding WAFS as recommended by the manufacturer and recording the time and amount of all additions of WAFS. Another commenter requested that EPA clarify the term or requirement for WAFS so that facilities know that if a WAFS is already in use, no additional fume suppressants are necessary to meet the standard. The commenter was concerned that facilities might expand the use of perfluorooctane sulfate (PFOS), a pollutant of concern usually used in chromium plating baths as a fume suppressant. Response: The commenter is correct regarding the compliance requirements for the use of WAFS in affected tanks. As specified compliance is demonstrated by adding and maintaining the WAFS in the bath according to manufacturer's specifications and instructions, and documenting that the additions of WAFS to the affected tank, regardless of whether the WAFS is included in the plating chemical solution or added separately. In regard to the comment with PFOS concerns, this final rule will be clarified to state that if WAFS are already in the bath ingredients, no additional WAFS need to be added unless specified by the manufacturer's instructions. E. Management Practices Comment: One commenter noted that the proposed rule would require each affected plant to meet all five of the management practices listed in, ``What are my standards and management practices?.'' The commenter stated that because of the variability inherent in plating and polishing operations, it is not reasonable or practical to implement all five of the management practices listed in the regulation, and that some affected facilities may not be able to implement any of them. The commenter explained that, while the management practices listed in the proposed rule can be effective in reducing HAP emissions, they are unnecessarily limited in scope and do not reflect the broad range of management practices and pollution prevention techniques that have been implemented since 1990. The commenter stated that there are several other management practices and pollution prevention activities that would be appropriate and would achieve the same objectives as those listed in the proposed rule, and provided lists of those practices. The commenter believes that sources should be allowed to demonstrate compliance with the management practices requirement by identifying the management practices that it has implemented since 1990, is currently implementing (and will continue to implement), and any management practices that it implements in the future. Another commenter urged EPA to not require affected facilities to meet all five of the listed management practices, some of which would not be appropriate for the commenter's facility. Response: We have added a number of pollution prevention management practices that were provided to EPA by the commenter. We believe that the revised list of management practices represents the most significant pollution prevention management practices that can be done to eliminate, reduce, or minimize air pollution in the plating and polishing processes regulated by this final rule. We also have emphasized in the revised rule that these pollution prevention management practices need to be done only ``as practicable'' to the specific plating operation being performed, as explained in this section in response to other comments. However, we are unable to provide the additional flexibility suggested by the commenter that sources be allowed to demonstrate compliance with a site-specific management plan that would identify management practices. Under the commenter's approach, no one, other than the source, would review the site-specific plan. Such an approach would constitute an improper delegation of our rulemaking authority under the Act. We therefore reject the approach. Comment: Several commenters stated that one or more of the managemen