National Emission Standards for Hazardous Air Pollutants for Chemical Manufacturing Area Sources, 75739-75764 [2012-30698]

Download as PDF Vol. 77 Friday, No. 246 December 21, 2012 Part III Environmental Protection Agency mstockstill on DSK4VPTVN1PROD with 40 CFR Part 63 National Emission Standards for Hazardous Air Pollutants for Chemical Manufacturing Area Sources; Final Rule VerDate Mar<15>2010 18:06 Dec 20, 2012 Jkt 229001 PO 00000 Frm 00001 Fmt 4717 Sfmt 4717 E:\FR\FM\21DER2.SGM 21DER2 75740 Federal Register / Vol. 77, No. 246 / Friday, December 21, 2012 / Rules and Regulations ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 63 [EPA–HQ–OAR–2008–0334; FRL–9725–9] RIN 2060–AQ89 National Emission Standards for Hazardous Air Pollutants for Chemical Manufacturing Area Sources Environmental Protection Agency (EPA). ACTION: Final rule; lift stay of final rule. AGENCY: On January 30, 2012, the EPA proposed revisions to several provisions of the final National Emission Standards for Hazardous Air Pollutants for Chemical Manufacturing Area Sources. The proposed revisions were made, in part, in response to a petition for reconsideration received by the Administrator following the promulgation of the October 29, 2009, final rule (‘‘2009 final rule’’). In this action, the EPA is finalizing those amendments, lifting the stay of the title V permit requirement issued on March 14, 2011, and lifting the stay of the final rule issued on October 25, 2012. In addition, this final action includes revisions to the EPA’s approach for addressing malfunctions and standards applicable during startup and shutdown periods. This final action also includes amendments and technical corrections to the final rule to clarify applicability and compliance issues raised by stakeholders subject to the 2009 final rule. The revisions to the final rule do not reduce the level of environmental protection or emissions control on sources regulated by this rule but provide flexibility and clarity to improve implementation. This action also extends the compliance date for existing sources and the EPA’s final response to all issues raised in the petition for reconsideration. DATES: The stay of subpart VVVVVV and the stay of paragraph (e) of 40 CFR 63.11494 are lifted as of December 21, 2012. This final rule is effective on December 21, 2012. ADDRESSES: The EPA has established a docket for this action under Docket ID No. EPA–HQ–OAR–2008–0334. All documents in the docket are listed in the 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. Publicly available docket mstockstill on DSK4VPTVN1PROD with SUMMARY: VerDate Mar<15>2010 18:06 Dec 20, 2012 Jkt 229001 materials are available either electronically in www.regulations.gov or in hard copy at the EPA Docket Center, EPA West Building, 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 Docket Center is (202) 566–1742. FOR FURTHER INFORMATION CONTACT: Mr. Nick Parsons, Sector Policies and Programs Division (E143–01), Office of Air Quality Planning and Standards, U.S. Environmental Protection Agency, Research Triangle Park, North Carolina 27711; telephone number: (919) 541– 5372; fax number: (919) 541–0246; email address: parsons.nick@epa.gov. SUPPLEMENTARY INFORMATION: Acronyms and Abbreviations. Several acronyms and terms used to describe industrial processes are included in this final action. While this may not be an exhaustive list, to ease the reading of this preamble and for reference purposes, the following terms and acronyms are defined here: CAA Clean Air Act CEMS Continuous Emission Monitoring System CFR Code of Federal Regulations CMAS Chemical Manufacturing Area Source CMPU Chemical Manufacturing Process Unit COMS Continuous Opacity Monitoring System CPMS Continuous Parameter Monitoring System EPA Environmental Protection Agency FESOP Federally Enforceable State Operating Permit GACT Generally Available Control Technology HAP Hazardous Air Pollutants HON National Emission Standards for Organic Hazardous Air Pollutants From the Synthetic Organic Chemical Manufacturing Industry ICR Information Collection Request lb/yr Pounds Per Year MACT Maximum Achievable Control Technology MON National Emission Standards for Hazardous Air Pollutants: Miscellaneous Organic Chemical Manufacturing MSDS Material Safety Data Sheet NESHAP National Emissions Standards for Hazardous Air Pollutants NOCS Notice of Compliance Status NTTAA National Technology Transfer and Advancement Act OECA Office of Enforcement and Compliance Assurance OMB Office of Management and Budget ppmv Parts Per Million by Volume RCRA Resource Conservation and Recovery Act SARU Sulfuric Acid Regeneration Unit PO 00000 Frm 00002 Fmt 4701 Sfmt 4700 SSM Startup, Shutdown and Malfunction tpy Tons Per Year TTN Technology Transfer Network UMRA Unfunded Mandates Reform Act VCS Voluntary Consensus Standards VOC Volatile Organic Compound WWW World Wide Web Organization of This Document. The following outline is provided to aid in locating information in this preamble. I. General Information A. Executive Summary B. Does this action apply to me? C. How do I obtain a copy of this document and other related information? D. Judicial Review II. Background Information III. Summary of Final Rule Revisions A. Applicability of the Family of Materials Concept B. Title V Permitting Requirements C. Requirements When Other Rules Overlap With the Final Rule D. Requirement To Conduct Direct and Proximal Leak Inspections E. Requirement for Covers or Lids on Process Vessels F. Requirement To Conduct Leak Inspections When Equipment Is in HAP Service G. Requirements During Periods of Startup, Shutdown and Malfunction H. Requirements for Metal HAP Process Vents I. Extension of the Compliance Date J. Technical Corrections IV. Summary of Major Changes Since Proposal A. Title V Permitting Requirements B. Requirement for Covers or Lids on Process Vessels C. Requirement To Conduct Leak Inspections When Equipment Is in HAP Service D. Requirements for Metal HAP Process Vents E. Extension of the Compliance Date F. Technical Corrections V. Summary of Comments and Responses A. Title V Permitting Requirements B. Requirements When Other Rules Overlap With the Final Rule C. Requirement To Conduct Direct and Proximal Leak Inspections D. Requirement for Covers or Lids on Process Vessels E. Requirement To Conduct Leak Inspections When Equipment Is in HAP Service F. Applicability of the Family of Materials Concept G. Requirements for Metal HAP Process Vents H. Compliance Date I. Technical Corrections VI. What other actions are we taking? A. De Minimis Exemption B. Research and Development Interpretation C. Pollution Prevention Alternative VII. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review E:\FR\FM\21DER2.SGM 21DER2 Federal Register / Vol. 77, No. 246 / Friday, December 21, 2012 / Rules and Regulations 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 Risks and Safety Risks H. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use I. National Technology Transfer and Advancement Act J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations K. Congressional Review Act A red-line version of the regulatory language that incorporates the changes in this action is available in the docket. EPA reconsider six provisions in the final rule. In response to this petition, the EPA proposed revisions to several provisions of the final rule on January 30, 2012 (77 FR 4522). This final action addresses the public comments on the proposal and finalizes amendments to subpart VVVVVV. The amendments relate to issues raised in the petition for reconsideration and also include technical corrections that clarify applicability and compliance issues of the final rule. This action also lifts the stay of the title V permit requirement that was issued on March 14, 2011 (76 FR 13514) and the stay of the final rule that was issued on October 25, 2012 (77 FR 65135). This action also provides an extension of the compliance date for existing sources. I. General Information The revised final rule lifts the stay on the title V permitting requirement and requires that certain chemical manufacturing synthetic area sources that installed controls obtain a title V permit. The EPA continues to believe that the additional protections provided by a title V permit are warranted for the sources subject to title V pursuant to this rule for the reasons stated in the rulemaking record. See 74 FR 56013– 56014, 56034–56039 (October 29, 2009); 77 FR 4525–4527 (January 30, 2012). A. Executive Summary 1. Purpose of the Regulatory Action The EPA issued the NESHAP for the nine chemical manufacturing area source categories (40 CFR part 63, subpart VVVVVV) on October 29, 2009 (74 FR 56008). Pursuant to CAA section 307(d)(7)(B), the EPA received a petition for reconsideration on February 12, 2010. The petitioners requested that the 2. Summary of Major Provisions 75741 The EPA is also finalizing several revisions to the final rule to improve clarity and provide facilities with greater flexibility. The leak inspection requirements are revised such that facilities conduct quarterly sensory inspections instead of ‘‘direct and proximal (thorough)’’ inspections, and that leak inspections may be conducted while equipment is in VOC service instead of in organic HAP service. The final rule also allows facilities to remove the required cover or lid on a process vessel when access is required during manual operations. Several definitions, including ‘‘in organic HAP service,’’ ‘‘in metal HAP service,’’ ‘‘metal HAP process vent’’ and ‘‘family of materials’’ are clarified and/or revised in the final rule. The EPA is also finalizing several technical corrections. Finally, the EPA is extending the compliance date for existing sources until March 21, 2013. 3. Costs and Emissions Reductions The costs and emissions reductions associated with this rule have not changed from the October 29, 2009, final rule. Table 1 below summarizes the costs and emissions reductions of 40 CFR part 63, subpart VVVVVV. See section VI of the preamble to the October 29, 2009 final rule (74 FR 56039–56040) for further discussion of the costs and impacts. TABLE 1—SUMMARY OF THE COSTS AND EMISSIONS REDUCTIONS OF 40 CFR PART 63, SUBPART VVVVVV Capital costs ($) Requirement Annualized costs ($/yr) Emissions reductions (tpy) Batch process vents .................................................................................................................... Continuous process vents ........................................................................................................... Metal HAP process vents ............................................................................................................ Storage tanks ............................................................................................................................... Heat exchange systems .............................................................................................................. Transfer operations ...................................................................................................................... Wastewater systems .................................................................................................................... Management practices ................................................................................................................ $390,000 170,000 690,000 85,000 640,000 75,000 210,000 540,000 $370,000 85,000 1,700,000 15,000 280,000 10,000 79,000 685,000 <43 <29 41 5 79 1 51 N/A Total ...................................................................................................................................... 2,800,000 3,200,000 248 mstockstill on DSK4VPTVN1PROD with B. Does this action apply to me? The regulated categories and entities potentially affected by this action include: VerDate Mar<15>2010 18:06 Dec 20, 2012 Jkt 229001 PO 00000 Frm 00003 Fmt 4701 Sfmt 4700 E:\FR\FM\21DER2.SGM 21DER2 75742 Federal Register / Vol. 77, No. 246 / Friday, December 21, 2012 / Rules and Regulations Industry category NAICS code 1 Examples of regulated entities Chemical Manufacturing .................................... 325 Chemical manufacturing area sources that use as feedstock, generate as byproduct or produce as product, any of the hazardous air pollutants (HAP) subject to this subpart except for: (1) Processes classified in NAICS Code 325222, 325314 or 325413; (2) processes subject to standards for other listed area source categories 2 in NAICS Code 325; (3) certain fabricating operations; (4) manufacture of photographic film, paper and plate where material is coated or contains chemicals (but the manufacture of the photographic chemicals is regulated); and (5) manufacture of radioactive elements or isotopes, radium chloride, radium luminous compounds, strontium and uranium. 1 North American Industry Classification System. source categories in NAICS Code 325 for which other area source standards apply are: Acrylic Fibers/Modacrylic Fibers Production, Chemical Preparation, Carbon Black, Chemical Manufacturing: Chromium Compounds, Lead Oxide Production, Polyvinyl Chloride and Copolymers Production, Paint and Allied Coatings and Mercury Cell Chlor-Alkali Manufacturing. 2 The This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be regulated by this reconsideration action. To determine whether your facility may be affected by this final rule, you should examine the applicability criteria in 40 CFR 63.11494 of subpart VVVVVV (National Emission Standards for Hazardous Air Pollutants for Chemical Manufacturing Area Sources). If you have any questions regarding the applicability of the final rule to a particular entity, consult either the air permit authority for the entity or your EPA regional representative, as listed in 40 CFR 63.13. mstockstill on DSK4VPTVN1PROD with C. How do I obtain a copy of this document and other related information? Docket. The docket number for this action and the final rule (40 CFR part 63, subpart VVVVVV) is Docket ID No. EPA–HQ–OAR–2008–0334. World Wide Web (WWW). In addition to being available in the docket, an electronic copy of this action is available on the WWW through the Technology Transfer Network (TTN) Web site. Following signature, a copy of this notice will be posted on the TTN’s policy and guidance page for newly proposed or promulgated rules at https://www.epa.gov/ttn/oarpg. The TTN provides information and technology exchange in various areas of air pollution control. D. Judicial Review Under section 307(b)(1) of the Clean Air Act (CAA), judicial review of this final rule is available only by filing a petition for review in the United States Court of Appeals for the District of Columbia Circuit by February 19, 2013. Under section 307(b)(2) of the CAA, the requirements established by this final rule may not be challenged separately in any civil or criminal proceedings brought by the EPA to enforce these requirements. Section 307(d)(7)(B) of VerDate Mar<15>2010 18:06 Dec 20, 2012 Jkt 229001 the CAA further provides that ‘‘[o]nly an objection to a rule or procedure which was raised with reasonable specificity during the period for public comment (including any public hearing) may be raised during judicial review.’’ This section also provides a mechanism for the EPA to convene a proceeding for reconsideration, ‘‘[i]f the person raising an objection can demonstrate to EPA that it was impracticable to raise such objection within [the period for public comment] or if the grounds for such objection arose after the period for public comment (but within the time specified for judicial review) and if such objection is of central relevance to the outcome of this rule.’’ Any person seeking to make such a demonstration to us should submit a Petition for Reconsideration to the Office of the Administrator, U.S. EPA, Room 3000, Ariel Rios Building, 1200 Pennsylvania Ave. NW., Washington, DC 20460, with a copy to both the person listed in the preceding FOR FURTHER INFORMATION CONTACT section, and the Associate General Counsel for the Air and Radiation Law Office, Office of General Counsel (Mail Code 2344A), U.S. EPA, 1200 Pennsylvania Ave. NW., Washington, DC 20460. II. Background Information Section 112(d) of the CAA requires the EPA to establish national emission standards for hazardous air pollutants (NESHAP) for both major and area sources of HAP that are listed for regulation under CAA section 112(c). A major source is any stationary source that 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. On October 29, 2009 (74 FR 56008), the EPA issued the NESHAP for the nine chemical manufacturing area source (CMAS) categories that were listed pursuant to CAA sections PO 00000 Frm 00004 Fmt 4701 Sfmt 4700 112(c)(3) and 112(k)(3)(B). The nine area source categories are Agricultural Chemicals and Pesticides Manufacturing, Cyclic Crude and Intermediate Production, Industrial Inorganic Chemical Manufacturing, Industrial Organic Chemical Manufacturing, Inorganic Pigments Manufacturing, Miscellaneous Organic Chemical Manufacturing, Plastic Materials and Resins Manufacturing, Pharmaceutical Production and Synthetic Rubber Manufacturing. Section 112(k)(3)(B) of the CAA directs the EPA to identify at least 30 HAP that, as a result of emissions from area sources, pose the greatest threat to public health in the largest number of urban areas. The EPA implemented this provision in 1999 in the Integrated Urban Air Toxics Strategy (64 FR 38715, July 19, 1999) (Strategy). Specifically, in the Strategy, the 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) of the CAA requires the EPA to list sufficient categories or subcategories of area sources to ensure that area sources representing 90 percent of the area source emissions of the 30 urban HAP are subject to regulation. The EPA completed this requirement in 2011 (76 FR 15308, March 21, 2011). The nine CMAS categories were listed to satisfy this requirement for 15 of the 30 urban HAP.1 Pursuant to CAA section 112(d)(5), the NESHAP reflect generally available control technologies or management practices (GACT). The NESHAP apply to each chemical manufacturing process unit (CMPU) that uses, generates or produces any of the 15 urban HAP for which the area source categories were listed (collectively 1 The 15 urban HAP for which the chemical manufacturing area source categories were listed under CAA section 112(c) are identified in table 1 of the final rule. E:\FR\FM\21DER2.SGM 21DER2 Federal Register / Vol. 77, No. 246 / Friday, December 21, 2012 / Rules and Regulations mstockstill on DSK4VPTVN1PROD with ‘‘chemical manufacturing urban HAP’’ or ‘‘Table 1 HAP’’). On February 12, 2010, following promulgation of the 2009 final rule, the EPA received a petition for reconsideration from the American Chemistry Council and the Society of Chemical Manufacturers & Affiliates (‘‘Petitioners’’). A copy of this petition is provided in the docket (see Docket Item No. EPA–HQ–OAR–2008–0334– 0098). Petitioners, pursuant to CAA section 307(d)(7)(B), requested that the EPA reconsider six provisions in the rules: (1) The requirement that major sources that installed air pollution controls after 1990, and, as a result, became area sources, obtain a title V permit; (2) the requirement that sources subject to the final rule and any overlapping provision in another rule comply with each provision independently, or with the most stringent requirements of each rule; (3) the requirement that leak inspections include direct and proximal (thorough) inspection of all areas of potential leak within the CMPU; (4) the requirement that process vessels in HAP service be equipped with a cover or lid that must be in place at all times when the vessel contains HAP, except for material addition and sampling; (5) the requirement to conduct leak inspections while the equipment is in HAP service; and (6) the requirement that a CMPU include all equipment and processes used to produce a ‘‘family of materials.’’ 2 The arguments in support of these requests are provided in the petition and in the preamble to the reconsideration proposed rule revisions (77 FR 4525–4530, January 30, 2012). Petitioners also requested that the EPA stay the effectiveness of these provisions of the rule to save many facilities from needlessly having to file the initial notifications required by the final rule. On June 15, 2010, the EPA sent a letter to the Petitioners informing them that the EPA was granting the request for reconsideration on at least one of the issues raised in the petition, and that the agency would identify the specific issue or issues for which it was granting reconsideration in the reconsideration notice that would be published in the Federal Register. The letter also indicated that the EPA considered the request for a stay to be moot because the due date for initial notifications had already passed. On January 30, 2012, the EPA published proposed rule revisions that included six provisions for which reconsideration was requested. Specifically, the EPA: (1) Proposed to narrow the requirement for sources to obtain a title V permit to only those synthetic area sources that installed a federally-enforceable control device on an affected CMPU; (2) sought comment on the overlapping provisions requirement; (3) proposed to remove the requirement to conduct direct and proximal (thorough) leak inspections; (4) proposed to allow sources to remove the cover or lid on a process vessel when manual access is necessary; (5) sought comment on allowing leak inspections to be conducted when equipment is in volatile organic compound (VOC) service; and (6) proposed to clarify the family of materials concept. In addition, the EPA also proposed clarifying revisions to the requirements for metal HAP process vents, the addition of the affirmative defense provisions and numerous technical corrections. On October 25, 2012, the EPA published a 60-day stay of the final CMAS rule (77 FR 65135). The compliance date for the final CMAS rule was October 29, 2012, and it was the EPA’s expectation that the reconsideration would be finalized in advance of that date. However, the EPA was still in the process of finalizing the reconsideration action. For that reason, a short stay of the final rule was appropriate to allow the EPA the time necessary to complete the reconsideration action. 2 The petition also requested that the EPA take comment on three additional issues: (1) A de minimis exemption for all sources; (2) a revision of the definition of laboratory analysis unit to include commercial development activities; and (3) a pollution prevention alternative. The EPA did not seek comment on these issues in reconsideration as explained below in section VI of this preamble. B. Title V Permitting Requirements VerDate Mar<15>2010 18:06 Dec 20, 2012 Jkt 229001 III. Summary of Final Rule Revisions A. Applicability of the Family of Materials Concept The final rule revises the definition of ‘‘family of materials’’ in 40 CFR 63.11502(a) by removing the definition that was incorporated by reference to the Miscellaneous Organic Chemical Manufacturing NESHAP (MON) and replacing it with a definition in 40 CFR 63.11502(b) specific to the CMAS rule. The definition clarifies that the family of materials concept applies only to those products whose production involves emission of the same Table 1 HAP. The revised final rule requires synthetic area sources that installed a federally-enforceable control device on at least one affected CMPU to obtain a title V permit. The final rule lifts the PO 00000 Frm 00005 Fmt 4701 Sfmt 4700 75743 stay on the title V permitting requirement (76 FR 13514, March 14, 2011) and requires such sources to submit their title V permit application by December 21, 2013 or on such earlier date as the title V permitting authority requires. C. Requirements When Other Rules Overlap With the Final Rule The revised final rule requires that facilities comply with the most stringent requirements when there are overlapping provisions in the CMAS rule and other NESHAP. Sources are required to determine which of the overlapping requirements applicable to the source are more stringent. D. Requirement To Conduct Direct and Proximal Leak Inspections The revised final rule removes the requirement in 40 CFR 63.11495(a)(3) that facilities conduct a ‘‘direct and proximal (thorough)’’ leak inspection, and instead requires that facilities conduct quarterly sensory inspections of all equipment and process vessels, provided that these methods are capable of detecting leaks within the CMPU (i.e., the inspector is within sufficient proximity to the equipment that leaky equipment can be detected by sight, sound or smell). The revised final rule also allows affected facilities to conduct leak inspections of equipment in VOC service instead of in organic HAP service, provided that leaks can be detected while in VOC service. A CMPU that contains metal HAP as particulate must conduct leak inspections while the equipment is in metal HAP service. E. Requirement for Covers or Lids on Process Vessels The final rule requires in 40 CFR 63.11495(a)(1) that a cover or lid must be in place and closed at all times when a process vessel is in organic HAP service or in metal HAP service, except when access is required during manual operations such as material addition, removal, inspection, sampling and cleaning. Process vessels containing metal HAP that are in a liquid solution or other form that will not result in particulate emissions of metal HAP (e.g., metal HAP that is in ingot, paste, slurry or moist pellet form or other form) are not subject to this requirement. The definitions of ‘‘in organic HAP service’’ and ‘‘in metal HAP service’’ in 40 CFR 63.11502(b) have been revised to state that a process vessel is no longer considered to be in organic HAP service or in metal HAP service once it has been emptied to the extent practicable and any cleaning has been completed. E:\FR\FM\21DER2.SGM 21DER2 75744 Federal Register / Vol. 77, No. 246 / Friday, December 21, 2012 / Rules and Regulations F. Requirement To Conduct Leak Inspections When Equipment Is in HAP Service The final rule requires in 40 CFR 63.11495(a)(3) that leak inspections be conducted while the subject CMPU is operating in organic HAP service or in metal HAP service. This provision also allows CMPU that do not contain metal HAP as particulate to conduct leak inspections when the subject CMPU is in VOC service, provided that leaks can be detected while in VOC service. A CMPU that contains metal HAP as particulate must conduct leak inspections while the equipment is in metal HAP service. mstockstill on DSK4VPTVN1PROD with G. Requirements During Periods of Startup, Shutdown and Malfunction The EPA is adding to the final rule an affirmative defense to civil penalties for violations of emission standards that are caused by malfunctions. During the comment period of the October 6, 2008, proposed rule (‘‘2008 proposal’’), the United States Court of Appeals for the District of Columbia Circuit vacated two provisions in the EPA’s CAA section 112 regulations governing the emissions of HAP during periods of startup, shutdown and malfunction (SSM). Sierra Club v. EPA, 551 F.3d 1019 (D.C. Cir. 2008), cert. denied, 130 S. Ct. 1735 (U.S. 2010). Specifically, the Court vacated the SSM exemption contained in 40 CFR 63.6(f)(1) and 40 CFR 63.6(h)(1), that are part of a regulation, commonly referred to as the ‘‘General Provisions Rule,’’ that the EPA promulgated under section 112 of the CAA. When incorporated into CAA section 112(d) regulations for specific source categories, the exemption in these two provisions exempts sources from the requirement to comply with otherwise applicable CAA section 112(d) emission standards during periods of SSM. The 2008 proposal contained references to the vacated provisions. Because the provisions were vacated, we removed the references in the 2009 final rule, and, consistent with Sierra Club v. EPA, established standards that applied at all times. In the vacated provisions’ place, we included alternative standards for startup and shutdown periods for continuous process vents. Table 3 to 40 CFR part 63, subpart VVVVVV. For batch process vents, we determined that startup and shutdown periods were already accounted for in the existing standard and we determined that the remaining equipment did not have periods of startup and shutdown. See 74 FR 56013, October 29, 2009. We declined to VerDate Mar<15>2010 18:06 Dec 20, 2012 Jkt 229001 establish a different standard for malfunctions, as suggested by commenters. See 74 FR 56033, October 29, 2009. Further, as explained in the preamble to the 2009 final rule (74 FR 56033, October 29, 2009), periods of startup, normal operations and shutdown are all predictable and routine aspects of a source’s operations. However, by contrast, 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). The EPA has determined that CAA section 112 does not require that emissions that occur during periods of malfunction be factored into development of CAA section 112 standards. There is nothing in section 112 that directs the agency to consider malfunctions in determining the level ‘‘achieved’’ by the best performing or best controlled sources when setting emission standards. Moreover, while the EPA accounts for variability in setting emissions standards consistent with the section 112 case law, nothing in that case law requires the agency to consider malfunctions as part of that analysis. Section 112 uses the concept of ‘‘best controlled’’ and ‘‘best performing’’ unit in defining the level of stringency that section 112 performance standards must meet. Applying the concept of ‘‘best controlled’’ or ‘‘best performing’’ to a unit that is malfunctioning presents significant difficulties, as malfunctions are sudden and unexpected events. Similarly, although standards for area sources are not required to be set based on ‘‘best performers,’’ we believe that what is ‘‘generally available’’ should not be based on periods in which there is a ‘‘failure to operate.’’ Further, accounting for malfunctions would be difficult, if not impossible, given the myriad different types of malfunctions that can occur across all sources in the categories and given the difficulties associated with predicting or accounting for the frequency, degree and duration of various malfunctions that might occur. As such, the performance of units that are malfunctioning is not ‘‘reasonably’’ foreseeable. See, e.g., Sierra Club v. EPA, 167 F. 3d 658, 662 (D.C. Cir. 1999) (the EPA typically has wide latitude in determining the extent of data-gathering necessary to solve a problem. We generally defer to an agency’s decision to proceed on the basis of imperfect scientific information, rather than to ‘‘invest the resources to conduct the perfect study.’’). See also, Weyerhaeuser PO 00000 Frm 00006 Fmt 4701 Sfmt 4700 v. Costle, 590 F.2d 1011, 1058 (D.C. Cir. 1978) (‘‘In the nature of things, no general limit, individual permit, or even any upset provision can anticipate all upset situations. After a certain point, the transgression of regulatory limits caused by ‘uncontrollable acts of third parties,’ such as strikes, sabotage, operator intoxication or insanity, and a variety of other eventualities, must be a matter for the administrative exercise of case-by-case enforcement discretion, not for specification in advance by regulation.’’). In addition, the goal of a best controlled or best performing source is to operate in such a way as to avoid malfunctions of the source and accounting for malfunctions could lead to standards that are significantly less stringent than levels that are achieved by a well-performing nonmalfunctioning source. The EPA’s approach to malfunctions is consistent with section 112 and is a reasonable interpretation of the statute. In the event that a source fails to comply with the applicable CAA section 112(d) standards as a result of a malfunction event, the EPA would determine an appropriate response based on, among other things, the good faith efforts of the source to minimize emissions during malfunction periods, including preventative and corrective actions, as well as root cause analyses to ascertain and rectify excess emissions. The EPA would also consider whether the source’s failure to comply with the CAA section 112(d) standard was, in fact, ‘‘sudden, infrequent, not reasonably preventable’’ and was not instead ‘‘caused in part by poor maintenance or careless operation.’’ 40 CFR 63.2 (definition of malfunction). Finally, the EPA recognizes that even equipment that is properly designed and maintained can sometimes fail, and that such failure can sometimes cause a violation of the relevant emission standard. (See, e.g., State Implementation Plans: Policy Regarding Excessive Emissions During Malfunctions, Startup, and Shutdown (September 20, 1999); Policy on Excess Emissions During Startup, Shutdown, Maintenance, and Malfunctions (February 15, 1983)). The EPA is therefore adding to the final rule an affirmative defense to civil penalties for violations of emission standards that are caused by malfunctions, consistent with other recent actions by the EPA (e.g., the NESHAP for Group I Polymers and Resins and the NESHAP for Pharmaceuticals Production. 76 FR 22566 (April 21, 2011)). See 40 CFR 63.11502 (defining ‘‘affirmative E:\FR\FM\21DER2.SGM 21DER2 mstockstill on DSK4VPTVN1PROD with Federal Register / Vol. 77, No. 246 / Friday, December 21, 2012 / Rules and Regulations defense’’ to mean, in the context of an enforcement proceeding, a response or defense put forward by a defendant, regarding which the defendant has the burden of proof, and the merits of which are independently and objectively evaluated in a judicial or administrative proceeding). We also have added other regulatory provisions to specify the elements that are necessary to establish this affirmative defense; the source must prove by a preponderance of the evidence that it has met all of the elements set forth in 40 CFR 63.11501(e). See 40 CFR 22.24. The criteria ensure that the affirmative defense is available only where the event that causes a violation of the emission standard meets the narrow definition of malfunction in 40 CFR 63.2 (sudden, infrequent, not reasonable preventable and not caused by poor maintenance and or careless operation). For example, to successfully assert the affirmative defense, the source must prove by a preponderance of the evidence that the violations ‘‘[w]ere caused by a sudden, infrequent, and unavoidable failure of air pollution control and monitoring equipment, process equipment, or a process to operate in a normal or usual manner* * *.’’ The criteria also are designed to ensure that steps are taken to correct the malfunction, to minimize emissions in accordance with CAA section 63.11501(e), and to prevent future malfunctions. For example, the source must prove by a preponderance of the evidence that ‘‘[r]epairs were made as expeditiously as possible when a violation occurred* * *’’ and that ‘‘[a]ll possible steps were taken to minimize the impact of the violation on ambient air quality, the environment and human health* * *.’’ In any judicial or administrative proceeding, the Administrator may challenge the assertion of the affirmative defense, and, if the respondent has not met its burden of proving all of the requirements in the affirmative defense, appropriate penalties may be assessed in accordance with section 113 of the CAA (see also 40 CFR 22.77). The EPA included an affirmative defense in this final rule in an attempt to balance a tension, inherent in many types of air regulation, to ensure adequate compliance while simultaneously recognizing that despite the most diligent of efforts, emission limits may be violated under circumstances beyond the control of the source. The EPA must establish emission standards that ‘‘limit the quantity, rate, or concentration of emissions of air pollutants on a VerDate Mar<15>2010 18:06 Dec 20, 2012 Jkt 229001 continuous basis.’’ 42 U.S.C. 7602(k) (defining ‘‘emission limitation and emission standard’’). See, generally, Sierra Club v. EPA, 551 F.3d 1019, 1021 (D.C. Cir. 2008). Thus, the EPA is required to ensure that section 112 emissions limitations are continuous. The affirmative defense for malfunction events meets this requirement by ensuring that even where there is a malfunction, the emission limitation is still enforceable through injunctive relief. See generally, Luminant Generation Co. LLC v. United States EPA, 2012 U.S. App. LEXIS 21223 (5th Cir. Oct. 12, 2012) (upholding EPA’s approval of affirmative defense provisions in a CAA State Implementation Plan). While ‘‘continuous’’ limitations, on the one hand, are required, there is also case law indicating that, in many situations, it is appropriate for the EPA to account for the practical realities of technology. For example, in Essex Chemical v. Ruckelshaus, 486 F.2d 427, 433 (D.C. Cir. 1973), the DC Circuit acknowledged that, in setting standards under CAA section 111, ‘‘variant provisions’’ such as provisions allowing for upsets during startup, shutdown and equipment malfunction ‘‘appear necessary to preserve the reasonableness of the standards as a whole and that the record does not support the ‘never to be exceeded’ standard currently in force.’’ See also, Portland Cement Association v. Ruckelshaus, 486 F.2d 375 (D.C. Cir. 1973). Though intervening case law such as Sierra Club v. EPA and the CAA 1977 amendments call into question the relevance of these cases today, they support the EPA’s view that a system that incorporates some level of flexibility is reasonable. The affirmative defense simply provides for a defense to civil penalties for violations that are proven to be beyond the control of the source. By incorporating an affirmative defense, the EPA has formalized its approach to upset events. In a Clean Water Act setting, the Ninth Circuit required this type of formalized approach when regulating ‘‘upsets beyond the control of the permit holder.’’ Marathon Oil Co. v. EPA, 564 F.2d 1253, 1272–73 (9th Cir. 1977). See also, Mont. Sulphur & Chem. Co. v. EPA, 2012 U.S. App. LEXIS 1056 (January 19, 2012) (rejecting industry argument that reliance on the affirmative defense was not adequate). But see, Weyerhaeuser Co. v. Costle, 590 F.2d 1011, 1057–58 (D.C. Cir. 1978) (holding that an informal approach is adequate). The affirmative defense provisions give the EPA the flexibility to both ensure that its emission limitations PO 00000 Frm 00007 Fmt 4701 Sfmt 4700 75745 are ‘‘continuous’’ as required by 42 U.S.C. 7602(k), and account for unplanned upsets and thus support the reasonableness of the standard as a whole. In addition to the affirmative defense provisions described above, we are also making several changes throughout the rule and in Table 9 (the table that specifies applicability of General Provisions to subpart VVVVVV of 40 CFR part 63) to specify applicable requirements during periods of startup and shutdown and periods of malfunction. For example, we are adding new paragraphs in 40 CFR 63.11501(c)(1)(vii) and (viii) that would require records of the occurrence and duration of malfunctions, as well as records of actions taken to minimize emissions during these periods and to fix malfunctioning equipment. We are also adding a paragraph in 40 CFR 63.11501(d)(8) that would require reporting of information related to each malfunction. Table 9 in the final rule states that 63.6(e)(1)(i) does not apply to subpart VVVVVV. We are also adding a new paragraph in 40 CFR 63.11495(d) that specifies the general duty to minimize emissions applies at all times. In addition to the changes in the text of the rule, we are revising the entries for 40 CFR 63.6(e)(1)(i), 63.10(b)(2) and 63.10(d)(5) to reference the new paragraphs in 40 CFR 63.11495(d), 63.11501(c) and 63.11501(d). Finally, we are revising Table 9 to state that the performance testing requirements in 40 CFR 63.7(e)(1) do not apply. The comments to Table 9 for that provision identify the location of the applicable performance testing requirements for sources subject to the CMAS rule. H. Requirements for Metal HAP Process Vents The revised final rule defines a ‘‘metal HAP process vent’’ to include only those streams which contain at least 50 parts per million by volume (ppmv) metal HAP. Process vents from CMPU that only contain metal HAP in a liquid solution or other form that will not result in particulate emissions of metal HAP (e.g., metal HAP that is in ingot, paste, slurry or moist pellet form or other form) are not required to comply with the metal HAP process vent requirements. I. Extension of the Compliance Date The EPA is extending the compliance date for existing sources until March 21, 2013. J. Technical Corrections The final rule provides several technical corrections. These E:\FR\FM\21DER2.SGM 21DER2 75746 Federal Register / Vol. 77, No. 246 / Friday, December 21, 2012 / Rules and Regulations amendments are being finalized to correct inaccuracies and oversights that were previously promulgated. These changes are described in Table 2 of this preamble. Several of these issues were identified through the public comments and the EPA identified others. TABLE 2—MISCELLANEOUS TECHNICAL CORRECTIONS TO 40 CFR PART 63, SUBPART VVVVVV Section of subpart VVVVVV Description of correction 40 CFR 63.11494(a)(3) ............................. We are finalizing several changes to this paragraph. First, we are clarifying that the 0.1-percent and 1.0-percent concentration thresholds are on a mass basis of the individual Table 1 HAP. Second, we are clarifying that all Table 1 HAP, except for quinoline, manganese, and trivalent chromium compounds, are considered carcinogenic, probably carcinogenic or possibly carcinogenic. Therefore, the concentration threshold of 1.0 weight percent applies only to quinoline, manganese, and trivalent chromium compounds, and the threshold of 0.1 weight percent applies to all other Table 1 HAP. Third, we are clarifying applicability of CMPU that generate a Table 1 HAP byproduct. If Table 1 HAP are generated as a byproduct, the changes clarify that the CMPU is subject to the rule if the concentration of the Table 1 HAP in any liquid stream in the CMPU exceeds the same thresholds that apply to feedstocks. Specifically, if quinoline is generated as a byproduct, then the CMPU is subject if the quinoline concentration in any liquid stream in the CMPU exceeds 1.0 percent by weight. Similarly, if hydrazine or any other organic Table 1 HAP is generated as a byproduct, then the process is subject if the individual concentration of these compounds in any liquid stream is greater than 0.1 percent by weight. In addition, we are clarifying that if hydrazine or any other organic Table 1 HAP is generated as a byproduct, then the process is subject if the individual concentration of these compounds in any batch process vent or continuous process vent is greater than 0.1 percent by weight. Finally, we are consolidating paragraphs (a)(1) and (3) to eliminate redundancy. We are adding a new paragraph that lists lead oxide production at lead acid battery manufacturing facilities in those operations for which this subpart does not apply. These sources are covered by 40 CFR part 63, subpart PPPPPP—NESHAP for Lead Acid Battery Manufacturing Area Sources. We are clarifying that a CMPU using only Table 1 metal HAP is not subject to any requirements for wastewater systems or heat exchange systems. Only organic HAP are subject to wastewater and heat exchange system requirements. We are splitting this section into an introductory section with five subsections. One sentence that contains two concepts has also been split into two separate sentences. The requirements, however, have not changed. We are adding an example of emission contributions to subtract when determining the TRE index value of individual streams before they are combined. We are revising the title of this paragraph and clarifying that the mass emission rate of halogen atoms must be calculated in accordance with § 63.115(d)(2)(v), or alternatively you may designate an emission stream as halogenated. We are adding a new paragraph that clarifies that CEMS requirements and data reduction requirements for CEMS specified in § 63.2450(j) apply. We are editing this paragraph to add the acronym ‘‘CMS.’’ We are editing the first sentence in this paragraph to remove the unnecessary word ‘‘report.’’ We are clarifying that if a source elects to conduct an engineering assessment to demonstrate initial compliance with the standards for metal HAP process vents, then the design evaluation must be conducted at representative operating conditions for the CMPU. We are clarifying that you may elect to conduct a design evaluation instead of a performance test to determine initial compliance with an outlet concentration emission limit. We are clarifying that you may measure caustic strength of the scrubber effluent for any halogen scrubber within a CMPU subject to this rule. We are clarifying that 40 CFR 63.996(c)(2)(ii) and 63.998(c)(1)(ii)(E) do not apply for the purposes of this subpart. We are adding a new paragraph that clarifies when the initial demonstration requirements for process condensers applies. We are adding a paragraph to this section clarifying that the halogenated vent stream provisions also apply to affected storage tanks. We are adding a definition of ‘‘hazardous waste treatment’’ in 40 CFR 63.11502(b) to mean treatment in either (1) a RCRA-permitted incinerator, process heater, boiler, or underground injection well, or (2) an incinerator, process heater, or boiler complying with 40 CFR part 63, subpart EEE. We are also adding corresponding changes to Table 6 to subpart VVVVVV. Specifically, for each wastewater stream, Item 1.a would require either wastewater treatment or hazardous waste treatment. In addition, Item 2.b would be edited to use the new term ‘‘hazardous waste treatment’’ and to allow for hard piping of wastewater streams to a point of transfer to onsite hazardous waste treatment. The changes to Item 1.a also make it clear that the treatment conducted to meet Item 2.b would satisfy the requirements of Item 1.a. We are adding a paragraph to 40 CFR 63.11500(a) to clarify that that offsite reloading and cleaning facilities that are subject to 40 CFR 1253(f) and comply with the monitoring, recordkeeping, and reporting requirements in any other subpart of part 63 are considered to be in compliance with the monitoring, recordkeeping, and reporting requirements of 40 CFR 63.1253(f)(7)(ii) or (iii). We are also adding corresponding changes to Table 5 to subpart VVVVVV to clarify which requirements apply to owners or operators of offsite cleaning or reloading facilities. We are revising this paragraph to allow sources to submit their notice of compliance status (NOCS) reports no later than 60 days after the applicable compliance date. We are replacing the incorrect word ‘‘dimension’’ with the correct word ‘‘dimensions.’’ 40 CFR 63.11494(c)(1)(vii) ....................... 40 CFR 63.11494(d) ................................. 40 CFR 63.11495(a)(3) ............................. 40 CFR 63.11496(c) ................................. 40 CFR 63.11496(d) ................................. 40 CFR 63.11496(e) ................................. 40 CFR 63.11496(f)(3)(i)(C) ..................... 40 CFR 63.11496(f)(3)(ii) .......................... 40 CFR 63.11496(f)(3)(ii) .......................... 40 CFR 63.11494(g)(2) ............................. 40 CFR 63.11494(g)(4)(i) ......................... 40 CFR 63.11494(g)(5) ............................. 40 CFR 63.11494(g)(8) ............................. 40 CFR 63.11497 ..................................... 40 CFR 63.11498(a)(2), 63.11502(b), and Table 6. mstockstill on DSK4VPTVN1PROD with 40 CFR 63.11500(a) and Table 5 ............ 40 CFR 63.11501(b) ................................. 40 CFR 63.11501(c)(4)(i) .......................... VerDate Mar<15>2010 18:06 Dec 20, 2012 Jkt 229001 PO 00000 Frm 00008 Fmt 4701 Sfmt 4700 E:\FR\FM\21DER2.SGM 21DER2 Federal Register / Vol. 77, No. 246 / Friday, December 21, 2012 / Rules and Regulations 75747 TABLE 2—MISCELLANEOUS TECHNICAL CORRECTIONS TO 40 CFR PART 63, SUBPART VVVVVV—Continued Section of subpart VVVVVV Description of correction 40 CFR 63.11502(a) ................................. We are inserting references to the definitions of the terms ‘‘batch operation,’’ ‘‘continuous operation,’’ and ‘‘isolated intermediate’’ in 40 CFR 63.2550 of the MON. We are also inserting a reference to the definition of ‘‘control device’’ in 40 CFR 63.111 of the Hazardous Organic Chemical Manufacturing NESHAP (HON). We are modifying the definition of ‘‘batch process vent’’ to clarify that vents from batch operations are considered to be batch process vents. We are adding a definition for the term ‘‘engineering assessment’’ consistent with 40 CFR 63.1257(d)(2)(ii), but which has been revised to include the appropriate references for this rule. We are adding a definition for the term ‘‘point of determination’’ consistent with 40 CFR 63.111 of the HON, but which has been revised to include the appropriate references for this rule. We are modifying the definition of ‘‘product’’ to remove ‘‘isolated intermediates’’ from the list of materials that are not considered products. We are adding a definition for the term ‘‘uncontrolled emissions’’ that reads: ‘‘Uncontrolled emissions means organic HAP or metal HAP process vent emissions, as applicable, at the outlet of the last recovery device, if any, and prior to any control device. In the absence of both recovery devices and control devices, uncontrolled emissions are the emissions discharged to the atmosphere.’’ We are replacing the reference to 40 CFR 63.982(c)(2) in item 1.a with the correct reference to 40 CFR 63.982(c). We are adding an item to this table for continuous process vents with a TRE >1.0 but ≤4.0. This item clarifies that these continuous process vents are required to comply with 40 CFR 63.982(e) if a recovery device is used to maintain a TRE >1.0 but ≤4.0. We are replacing the reference to 40 CFR 63.982(c)(1) in item 1.b with the correct reference to 40 CFR 63.982(c). We are also removing the requirement in item 1.b.ii to comply with the inspection requirements in 40 CFR 63.11495 for closed vent systems. We are revising item 1.a.i to clarify that the reference to monthly monitoring for the first 6 months in 40 CFR 63.104(b)(1) does not apply. We are revising the entry to 40 CFR 63.8(c)(4) to state that this paragraph does apply, but only for CEMS. The requirements for CPMS are contained in 40 CFR part 63, subpart SS, and requirements for COMS do not apply. We are revising the entry for 40 CFR 63.8(g)(5) to clarify that the data reduction requirements for CEMS are specified in 40 CFR 63.2450(j) and that CPMS requirements are specified in 40 CFR part 63, subpart SS. We are adding an entry for 40 CFR 63.9(i) to state that this paragraph applies to subpart VVVVVV. 40 CFR 63.11502(b) ................................. 40 CFR 63.11502(b) ................................. 40 CFR 63.11502(b) ................................. 40 CFR 63.11502(b) ................................. 40 CFR 63.11502(b) ................................. Table 3 ...................................................... Table 3 ...................................................... Table 5 ...................................................... Table 8 ...................................................... Table 9 ...................................................... Table 9 ...................................................... Table 9 ...................................................... IV. Summary of Major Changes Since Proposal The EPA received 19 public comment letters on the proposed revisions to the CMAS final rule. In addition, the EPA received six comments and sets of materials from industry representatives following the close of the comment period. After consideration of these comments, the EPA is making several changes to the final rule. Following are the major changes to the standards since the proposal. The rationale for these and other significant changes can be found in this section, in section V of this preamble, and in the National Emission Standards for Hazardous Air Pollutant Emissions for Chemical Manufacturing Area Source—Reconsideration: Summary of Public Comments and Responses, in the CMAS rule docket (EPA–HQ–OAR–2008–0334). mstockstill on DSK4VPTVN1PROD with A. Title V Permitting Requirements In the proposed rule revisions, we proposed to narrow the applicability of title V permitting requirements for certain synthetic area sources subject to the final rule. Specifically, under the proposal, only those sources that installed a federally-enforceable control device on an affected CMPU in order to VerDate Mar<15>2010 18:06 Dec 20, 2012 Jkt 229001 become an area source would be subject to the requirement to obtain a title V permit. The EPA received public comments on this issue from industry representatives and two states during the public comment period. Public commenters were generally opposed to the EPA requiring any affected source to obtain a title V permit. The commenters were concerned that the burden of obtaining a title V permit was not warranted given the level of public participation already required by, and other requirements associated with, a Federally Enforceable State Operating Permit (FESOP) that sources with a federally-enforceable control device must already obtain. However, commenters stated that if the EPA should choose to require certain sources to obtain a title V permit, then they supported limiting the requirement to apply to only those sources that installed a federally-enforceable control device on an affected CMPU. As a preliminary matter, we note that section 502(a) of the CAA requires all area sources subject to CAA section 112 standards to obtain a title V permit unless the EPA makes a finding that title V is impracticable, infeasible or unnecessarily burdensome. The EPA PO 00000 Frm 00009 Fmt 4701 Sfmt 4700 did not exempt CMAS synthetic area sources that installed controls to limit HAP emissions because we believe that the limited burden resulting from the applicability of title V to these area sources is outweighed by the benefits of the title V permit. The EPA also continues to maintain that ‘‘while there is some burden on the affected facilities, we think that the burden is not significant because these facilities are generally larger and more sophisticated than the natural area sources and sources that took operational limits to become area sources.’’ 74 FR 56014. In the final rule revisions, we have made slight revisions to the proposed changes to the title V permit requirement to further clarify the applicability of title V to CMAS sources. Specifically, we have revised the rule to make clear that the installation of a federally-enforceable air pollution control device on an affected CMPU triggers the title V permit requirement for any synthetic area source subject to the final rule if the air pollution controls installed on the affected CMPU are required to maintain the source’s emissions at area source levels. The EPA continues to believe that the additional protections provided by a title V permit E:\FR\FM\21DER2.SGM 21DER2 75748 Federal Register / Vol. 77, No. 246 / Friday, December 21, 2012 / Rules and Regulations mstockstill on DSK4VPTVN1PROD with are warranted for CMAS synthetic area sources that installed controls because they are generally larger, more sophisticated and have higher HAP emissions before control than natural area sources and synthetic area sources that took operational limits. See 74 FR 56013–56014, 56034–56039 (October 29, 2009); 77 FR 4525–4527 (January 30, 2012). If a synthetic area source is subject to the CMAS rule and it has installed a federally-enforceable control device on an affected CMPU in order to become an area source, it is subject to title V and it must obtain a permit. Under 40 CFR 70.3(c)(2), for any non-major source subject to title V, the permitting authority must include in the permit all applicable requirements that apply to emissions units (i.e., the CMPU) that trigger applicability of title V. 40 CFR 70.3(c)(2); see also 40 CFR 70.2 (defining ‘‘applicable requirement’’). Thus, the state title V permitting authority may require a source subject to title V pursuant to the CMAS rule to include in the title V permit only the applicable requirements that apply to the CMPU(s) that cause the source to be subject to title V. Additionally, based on the comments submitted by industry, we appreciate industry’s concern that, due to the nature of chemical manufacturing, specifically specialty and batch chemical manufacturing, the industry needs operational flexibility and that some types of operational changes involving the affected CMPU could be subject to frequent title V revisions. There are several flexible permitting techniques available to sources through the title V permitting program, such as Alternative Operating Scenarios and Approved Replicable Methodologies. See 74 FR 51418 (October 6, 2009). We therefore encourage sources to consider the viability of establishing flexibility upfront in their respective title V permits as a way to avoid permit revisions, without sacrificing compliance assurance or operational flexibility. B. Requirement for Covers or Lids on Process Vessels In the proposed rule revisions, we requested comment on whether a change was needed for the definition of ‘‘in metal HAP service’’ to make it consistent with the proposed revisions to the definition of ‘‘in organic HAP service.’’ Public commenters were generally in favor of these proposed revisions. In the final rule revisions, we have revised the definition of ‘‘in metal HAP service’’ to state that, consistent with VerDate Mar<15>2010 18:06 Dec 20, 2012 Jkt 229001 the revised definition of ‘‘in organic HAP service,’’ a process vessel is no longer in metal HAP service after the vessel has been emptied to the extent practicable (i.e., a vessel with liquid left on process vessel walls or as bottom clingage, but not in pools, due to floor irregularity, is considered completely empty) and any cleaning has been completed. We have also revised the requirement that a cover or lid must be in place and closed at all times when a process vessel is in organic HAP service or in metal HAP service to not apply for CMPU using only metal HAP that are in a liquid solution or other form that the source determines will not result in particulate emissions of metal HAP (e.g., metal HAP that is in ingot, paste, slurry or moist pellet form or other form). C. Requirement To Conduct Leak Inspections When Equipment Is in HAP Service We solicited comment on whether to permit leak inspections to be conducted when equipment was in VOC service, rather than just when it was in organic HAP service or in metal HAP service. Public commenters were generally in favor of allowing leak inspections to be conducted while equipment was in VOC service. In the final rule revisions, we are allowing facilities to conduct leak inspections of equipment in VOC service, provided that leaks can be detected while in VOC service. A CMPU that contains metal HAP as particulate must conduct leak inspections while the equipment is in metal HAP service. We have also added a corresponding definition of ‘‘in VOC service’’ to mean that a process vessel or piece of equipment either contains or contacts a fluid that contains VOC. D. Requirements for Metal HAP Process Vents In the proposed rule revisions, we solicited comment on whether the definition of ‘‘metal HAP process vent’’ was applicable to all types of equipment from which metal HAP are emitted. The original rule defined a metal HAP process vent as ‘‘the point of discharge to the atmosphere (or inlet to a control device, if any) of a metal HAPcontaining gas stream from any CMPU at an affected source,’’ regardless of the concentration of metal HAP in the stream. Public commenters were generally in favor of defining a metal HAP process vent as containing at least 50 ppmv metal HAP, consistent with the MON. In the final rule revisions, we have revised the definition of ‘‘metal HAP process vent’’ to include only those PO 00000 Frm 00010 Fmt 4701 Sfmt 4700 streams which contain at least 50 ppmv metal HAP. We have also revised the final rule to state that process vents from CMPU that only contain metal HAP in a liquid solution or other form that will not result in particulate emissions of metal HAP (e.g., metal HAP that is in ingot, paste, slurry or moist pellet form or other form) are not required to comply with the metal HAP process vent requirements. E. Extension of the Compliance Date In the proposed rule revisions, we did not propose to revise the compliance date for the final rule, which was October 29, 2012. Under CAA section 112, the compliance date may be no more than 3 years after the effective date of the final rule, which for the CMAS rule was October 29, 2009. Public commenters were concerned that due to the expected short period of time between the promulgation of the final rule amendments and the existing October 29, 2012, compliance date, there would not be sufficient time for facilities to review the revised rule requirements and certify compliance by the compliance date. The commenters were particularly concerned with determining compliance because the proposed changes to the family of materials concept may affect applicability of the final standards to CMPU located at sources subject to the CMAS rule. It was the EPA’s expectation that the reconsideration would be finalized in advance of October 29, 2012, compliance date. However, the EPA was still in the process of finalizing the reconsideration action, and on October 25, 2012, the EPA published a 60-day stay of the final CMAS rule (77 FR 65135). In the final rule, the EPA is extending the compliance date for existing sources until March 21, 2013. We agree that existing sources should have additional time to evaluate applicability in light of the amendments to the rule since publication of the final reconsideration action is occurring so close to the existing source compliance date. We think this short extension will provide sources the necessary time to determine applicability and take the actions necessary to comply with the final rule. The EPA is not revising the compliance date for new sources. F. Technical Corrections In the proposed rule revisions, we proposed in 40 CFR 63.11494(a)(3) a technical correction that the concentration thresholds for applicability of Table 1 HAP present in feedstocks or any liquid streams (process or waste) were to be E:\FR\FM\21DER2.SGM 21DER2 Federal Register / Vol. 77, No. 246 / Friday, December 21, 2012 / Rules and Regulations determined on a collective Table 1 HAP basis. In addition, we also proposed to specify that a CMPU is subject to the CMAS rule if the collective concentration of Table 1 HAP exceeded 50 ppmv in any process vent stream. Public commenters were concerned that by revising the rule to determine applicability based on collective Table 1 HAP concentration and a 50 ppmv threshold, the applicability of the rule would be greatly expanded beyond its original scope. In the final rule revisions, we have revised this language to clarify that the concentration thresholds for applicability of Table 1 HAP are to be determined on an individual Table 1 HAP concentration, rather than a collective concentration. In addition, we have also clarified that the 0.1 percent by weight threshold for Table 1 HAP present in liquid streams (process or waste) also applies to Table 1 HAP present in any continuous process or batch process vent, rather than the proposed 50 ppmv threshold. We are not finalizing this proposed change because we did not fully consider the implications of the proposed change. We included the proposed change in the technical corrections section of the proposed rule on the belief that it was a technical change, but, in fact, the change, if finalized, would have had significant consequences. The proposed change would have likely lead to a considerable expansion of the applicability of the rule. In addition, sources would no longer have been able to determine applicability by reviewing their Material Safety Data Sheets (MSDS) as the 2009 final rule provides because the MSDS does not indicate the amount of emissions below the 0.1 percent threshold. This would mean that sources would have to go to considerable lengths at considerable cost in testing very low levels of HAP to even determine whether the final rule applies to their CMPUs, which is not what the EPA intended. mstockstill on DSK4VPTVN1PROD with V. Summary of Comments and Responses This section contains a summary of major comments and responses and rationale for changes made to the proposed rule. The EPA received many comments covering numerous topics. The EPA’s responses to those comments can be found either in this preamble or in the National Emission Standards for Hazardous Air Pollutant Emissions for Chemical Manufacturing Area Source— Reconsideration: Summary of Public Comments and Responses, in the CMAS VerDate Mar<15>2010 18:06 Dec 20, 2012 Jkt 229001 rule docket (EPA–HQ–OAR–2008– 0334). A. Title V Permitting Requirements Comment: Eight commenters objected to the requirement that certain synthetic area sources subject to the CMAS rule be required to obtain a title V permit. The commenters stated that the requirement would be overly burdensome and that it would impose significant additional costs on facilities while achieving no additional environmental benefit or gains in compliance. The commenters estimate that it will cost a facility $25,000– $100,000 to obtain a title V permit. In contrast, one commenter stated that the cost of obtaining a title V permit instead of a synthetic area source permit in their area is comparable due to associated permit fees for synthetic area source permits and emission fees for title V permits. Response: The EPA disagrees with the commenters that the requirement to obtain a title V permit is overly burdensome and we maintain that title V is appropriate for the sources that will be subject to title V pursuant to this final rule. In the preamble to the final rule, we determined that ‘‘requiring additional public involvement and compliance assurance requirements through title V is important to ensure that these sources are maintaining their emissions at the area source level, and, while there is some burden on the affected facilities, we think that the burden is not significant because these facilities are generally larger and more sophisticated than the natural area sources and sources that took operational limits to become area sources.’’ 74 FR 56014. The cost estimates provided by the commenters are very broad and the commenters do not provide any information to support the cost estimates that were provided; therefore, the EPA is unable to evaluate the validity of these estimates. Comment: Three commenters expressed concern with the impacts that the title V program requirements might impose on a source subject to the CMAS rule. In particular, they expressed concern with the ability of batch operations that have the need for quick changes to their production processes to be able to make such changes rapidly and with the necessary permitting flexibility. The commenters stated that by requiring a title V permit, the facility will be required to apply for a permit modification every time they wanted to manufacture a new product, costing them both time and money and placing them at a competitive disadvantage. PO 00000 Frm 00011 Fmt 4701 Sfmt 4700 75749 Response: We appreciate that the commenters want to maintain operational flexibility, but title V permits can and do accommodate provisions that provide operational flexibility for batch processing (and other) operations. In fact, permitting authorities have been incorporating operational flexibility for batch processes into title V permits through a variety of mechanisms provided under existing rules. These flexibilities have eliminated the need to modify permits when new products are manufactured. For example, since 2003, a number of specialty chemical manufacturers, who use batch processing, are subject to title V permitting under the Miscellaneous Organic NESHAP (MON). To accommodate the need for frequent operational changes at these facilities, states have issued flexible operating permits that provide these sources with the ability to obtain approval in advance for a variety of alternative operating scenarios, categories of changes, plantwide applicability limits, or other operating flexibilities that enable them to operate in the most effective way while still complying with the requirements of the title V program. As the CMAS rule notes, batch CMAS sources, like MON sources, can take advantage of similar flexibilities and set their continuous monitoring parameters based on their projected range of batch scenarios. This type of flexibility has been effectively incorporated into title V permits to sources in the semiconductor industry for many years. Just like the specialty chemical manufacturing industry, the semiconductor industry operates in a rapidly changing environment, requiring flexibility to make quick changes without the need to go through permit modifications. Through the use of advance approvals and flexible permits, companies such as Intel have been able to operate in a quickly changing environment while complying with the requirements of the title V program. Intel currently introduces a new generation of semiconductor chips every 12 to 24 months, with each new product cycle supported by a major facility revamp. These operational changes are time sensitive to meet product release schedules from computer and electronics manufacturers and involve highly interdependent and sequenced steps. Intel also reported a need to make rapid (and sometimes iterative) process and equipment adjustments in production processes to improve yield, lower costs, reduce chemical usage, and otherwise improve operations. The E:\FR\FM\21DER2.SGM 21DER2 mstockstill on DSK4VPTVN1PROD with 75750 Federal Register / Vol. 77, No. 246 / Friday, December 21, 2012 / Rules and Regulations advance approved changes in Intel’s flexible permit likely saved the plant hundreds of business days associated with making operational and process changes to ramp up production for new products, respond to market demands, and optimize production processes. Industry estimates of the opportunity costs of production downtime and time delays run as high as several million dollars in just a few days due to lost sales to computer makers and other factors. The estimated 150 to 200 changes per year, combined with the otherwise normally expected approval time frame of up to 60 days per change, indicate that there would likely have been significant delay under a conventional permitting approach. Intel has in the past cited its flexible air permit as a vital element enabling Intel to double employment during the permit term and to transfer and scale-up production of next generation computer chips at plants throughout the U.S., retaining and creating thousands of additional jobs. The EPA is willing to work with companies and state permitting authorities to ensure they are aware of the flexibilities already available under the title V permitting program that address the concerns of the small number of CMAS synthetic area sources that must obtain a title V permit. Comment: Four commenters stated that the process for obtaining a synthetic area source permit and the amount of information contained in it are very similar to those of a title V permit. Three of the commenters detailed the steps involved in obtaining each type of permit, as well as the information contained in each. The commenters also stated that both processes provide opportunity for public comment on the draft permit and that the facilities may be required to certify compliance annually. One of the commenters also provided general information on FESOPs and synthetic area source permits issued in Illinois and Ohio. Another commenter also provided general information on FESOP and synthetic area source permits for 11 states, including whether notice and comment is required and what additional oversight is conducted by the state. One commenter noted that FESOP programs must be approved through State Implementation Programs, which provide an opportunity for both the EPA and public comment. Another commenter stated that under the North Carolina Division of Air Quality’s air permitting program, synthetic area sources are already subject to annual inspections similar to what title V requires. The commenter also stated that VerDate Mar<15>2010 18:06 Dec 20, 2012 Jkt 229001 sources that have add-on controls typically have lower emissions than sources that have taken operational limits to become synthetic area sources. Response: While the commenters provided broad, general information on the requirements of FESOPs as compared to title V permits, none of them provided specific examples of these permits for the EPA to evaluate and compare to title V permits. Without this specific information from each state (as the requirements for a FESOP vary by state), the EPA cannot conclude that FESOPs provide the same level of information as that of a title V permit. In addition, unlike FESOP programs, petitions to object to title V permits may be brought before the EPA. As the requirements for public participation for a FESOP vary by state, the EPA cannot be assured that all citizens in all states would be afforded the same level of public participation that a title V permit would provide. In addition, title V requires a facility to include in the title V permit all applicable requirements that apply to CMAS affected units, not just the CMPU requirements that trigger applicability of title V, so that the public will be able to assess a source’s compliance with all requirements that apply to CMAS affected units by reviewing the title V permit. The public is provided access to compliance demonstration information submitted to state permitting authorities and there is no indication in the comments that such information is available pursuant to state FESOP programs. Furthermore, even though certain states, such as North Carolina, may require that a synthetic area source be subject to additional inspections, this requirement varies by state and only a title V permit would assure that these additional inspections are required for all CMAS synthetic area sources required to obtain a title V permit. Finally, we do not agree with the assertion that sources that install control devices necessarily have lower emissions than those that have taken operational limits to maintain area source status, as both types of synthetic area sources are subject to the same requirement to maintain emissions below 10 tpy of any single HAP or 25 tpy of any combination of HAP. It is the potential level of emissions from the synthetic area source absent controls or operational limits that we considered when comparing the two types of synthetic area sources. In the 2009 final rule and the reconsideration proposed rule revisions, we noted that one reason why we were not exempting synthetic area sources that installed controls from PO 00000 Frm 00012 Fmt 4701 Sfmt 4700 title V is because we believe the sources are ‘‘generally larger and more sophisticated’’ than natural area sources and the synthetic area sources that took operational limits. See 77 FR 4525; 74 FR 56014. We also stated that we believe the uncontrolled HAP emissions from synthetic area sources that installed controls are generally much higher than the natural area sources and synthetic area sources that took operational limits. Id. The commenters did not provide any information that causes us to question our conclusions. Comment: Four commenters stated that requiring synthetic area sources that installed control devices to obtain a title V permit would create a disincentive for facilities to maintain their synthetic area source status by either voluntarily reducing their emissions or installing add-on controls in lieu of taking production limits, which would have a negative impact on air quality. Response: The EPA disagrees that requiring title V permits would discourage facilities from maintaining their synthetic area source status, as facilities would in most, if not all, cases be subject to existing NESHAP applicable to chemical manufacturing major sources if they did not maintain synthetic area source status. For example, these sources would likely be subject to the HON or the MON, both of which require more frequent inspections and more stringent control of emissions. The EPA believes that avoiding these additional requirements would still provide incentive for facilities to maintain their synthetic area source status. In addition, all major sources of HAP subject to NESHAP are required to obtain a title V permit so the sources would still be required to comply with title V. Comment: One commenter stated that it is punitive to require title V permits for sources that have already made a capital investment to achieve area source status and avoid title V permits in the past. The commenter stated that the EPA is ignoring the environmental benefit associated with the installation of federally-enforceable control devices by focusing on the uncontrolled potential of these sources. Response: Pursuant to section 502(a) of the CAA, all area sources subject to CAA section 112 standards are required to obtain a title V permit unless the EPA makes a finding that title V is impracticable, infeasible or unnecessarily burdensome. Thus, there is no basis to support the statement that title V is punitive in nature and the EPA disagrees that requiring title V permits for synthetic area sources that installed E:\FR\FM\21DER2.SGM 21DER2 mstockstill on DSK4VPTVN1PROD with Federal Register / Vol. 77, No. 246 / Friday, December 21, 2012 / Rules and Regulations control devices is punitive. Furthermore, we are not ignoring the environmental benefit of controlling HAP emissions by requiring title V for certain CMAS sources. In most, if not all, cases, synthetic area sources that installed controls would be subject to existing NESHAP applicable to major sources if they did not take synthetic area source limits and those standards are set at the maximum achievable control technology (MACT) level. Since MACT standards are technology based standards established based on the performance of the best performing source(s), it is likely the commenter would have had to achieve a comparable level of emissions reductions even if they had not taken the synthetic area source limit. While the EPA appreciates the environmental benefit attained by facilities that have installed these control devices to become area sources, we still believe that title V permitting is appropriate to, among other things, ensure: that synthetic area sources that installed controls are maintaining their emissions at the permitted level; that the public is able to review and evaluate the source’s permit and compliance; that there is adequate monitoring, recordkeeping and reporting; and that the source’s management is required to certify compliance with the CAA requirements applicable to the source. Comment: Three commenters stated that if the EPA should choose to finalize the title V permit requirement, they supported the decision to limit this requirement to only facilities that have installed controls on an affected CMPU subject to the CMAS rule. Response: The EPA has finalized revisions to the title V permit requirement; however, the EPA has made some revisions to the title V permit requirement to further clarify the applicability of title V to CMAS sources. The final rule only requires title V permits for facilities that have installed a federally-enforceable control device on at least one affected CMPU and the air pollution control device is required to maintain the source’s emissions at area source levels. Comment: One commenter expressed concern that while the language of the original final rule made it clear that their facility was exempted from the title V requirement, the proposed revisions made it ambiguous as to whether the facility would be required to obtain a title V permit. The commenter believed that the revised provisions for obtaining a title V permit would no longer exclude sources that were never a major source, and could instead be interpreted to mean that any VerDate Mar<15>2010 18:06 Dec 20, 2012 Jkt 229001 synthetic area source, regardless of whether it was previously major or area, that installed a federally-enforceable control device on an affected CMPU would be subject to the title V permit requirement. The commenter requested that this requirement only apply to sources that became a synthetic area source as a direct result of installing the federally-enforceable control device. Response: In response to comments on the proposed rule, the EPA has revised the final rule language to clarify the scope of the title V permit requirement. Specifically, the final rule requires a title V permit for any synthetic area source subject to the CMAS rule that would be a major source but for the installation of a federallyenforceable control device on at least one affected CMPU. The final title V requirement language affords no consideration to the purpose of the installed control device, other than it being necessary to maintain the source’s emissions at area source levels, or the timing of the installation of the control device. B. Requirements When Other Rules Overlap With the Final Rule Comment: One commenter stated that it is not always clear what the most stringent provisions are when looking at overlapping provisions. The commenter requested that the EPA revise the rule to require facilities to make their best determination of stringency and submit to the appropriate agency for review and comment. The commenter also requested that states should be allowed to make streamlined determinations on stringency on an overall program stringency basis rather than individual rule provisions of overlapping rules. Response: The EPA disagrees with the commenter that it is necessary to revise the final rule to allow for facilities to submit their stringency determinations for review and comment to their permitting authority. As the requirements of this section are entirely optional, we do not believe it to be appropriate to place additional burden on the local permitting authorities to make the determination of what the most stringent provisions are. Instead, we believe that this responsibility should continue to be placed on the facility. For those sources that are unable to determine the more stringent requirements, we continue to believe that it is more appropriate to evaluate requests for clarification on a case-bycase basis. In addition, we also believe that it would be inappropriate for us to make a determination of equivalency among the numerous state streamlined PO 00000 Frm 00013 Fmt 4701 Sfmt 4700 75751 programs with the requirements of the CMAS rule. As noted in the preamble to the proposed rule revisions, ‘‘[w]e did not include language that defines the more stringent requirements, as found in other rules, due to the great variety in characteristics of CMAS processes and the wide variety of compliance options in both the CMAS rule and overlapping rules. This variety makes it difficult to develop language that would not inadvertently allow a CMAS facility to comply with requirements less stringent than those contained in 40 CFR part 63, subpart VVVVVV, or less stringent than the required control level in an overlapping rule.’’ (77 FR 4528). For these reasons, we are not revising these provisions in the final rule. C. Requirement To Conduct Direct and Proximal Leak Inspections Comment: Four commenters supported the proposed revisions to remove the requirement to conduct ‘‘direct and proximal’’ leak inspections and stated that the proposed sight, sound or smell inspections are appropriate. Response: The EPA has finalized the proposed revisions to the leak detection requirements. D. Requirement for Covers or Lids on Process Vessels Comment: Three commenters requested that the EPA clarify that for metal HAP precipitate, or metal HAP in solution, the requirement to install a cover or lid on process vessels in metal HAP service does not apply. The commenters cited the low potential for emissions from these low vapor pressure metal HAP solutions as rationale for not imposing this requirement on such units. One commenter estimated that without this change, their facility would have to invest over $1,000,000 in covers/lids for their clarifiers, which are used to gravity-separate solids from solution and have very low potential for emissions. One commenter cited 40 CFR part 63, subpart CCCCCCC as an example of an area source rule that does not require this for metal HAP in solution. The commenter also provided examples of regulatory text that could be used in the CMAS rule. Response: The EPA agrees with the commenters that the requirement to install a cover or lid for process vessels in metal HAP service is unnecessary for metal HAP in solution. As there is very little or no potential for air emissions to occur from these solutions, the rule need not require the process vessel to be covered. As such, we have revised the final rule to state that process vessels E:\FR\FM\21DER2.SGM 21DER2 75752 Federal Register / Vol. 77, No. 246 / Friday, December 21, 2012 / Rules and Regulations that only contain metal HAP in a liquid solution or other form that will not result in particulate emissions of metal HAP (e.g., metal HAP that is in ingot, paste, slurry or moist pellet form or other form) are not required to comply with the cover/lid requirement. E. Requirement To Conduct Leak Inspections When Equipment Is in HAP Service Comment: Three commenters suggested that leak inspections should be permitted to be conducted when equipment is in non-HAP (i.e., VOC) service. Two commenters cited the limited personnel available to conduct leak inspections and the limited time windows for when equipment is in HAP service and inspections may be conducted as rationale. One commenter noted that there is little difference between detecting leaks for streams in VOC vs. HAP service, as many HAP and non-HAP solvents have similar vapor and odor thresholds and both can be detected adequately by sight, sound or smell. The commenter also stated that since the MON allows for sources to assume that equipment is in HAP service, then the CMAS rule should permit it as well. Response: The EPA agrees with the commenters that conducting leak inspections when equipment is in VOC service is acceptable for the reasons described above, and has revised the final rule to reflect this option, provided that leaks can be detected while in VOC service. As it may be very difficult for some facilities to conduct their inspections while equipment is in HAP service due to the limited amount of time and/or personnel available, this alternative will provide facilities with flexibility in conducting inspections while maintaining the same level of emissions reductions. This option does not apply to CMPU that contain metal HAP as particulate. For those units, the inspections must be conducted while the unit is in metal HAP service. mstockstill on DSK4VPTVN1PROD with F. Applicability of the Family of Materials Concept Comment: Two commenters supported the proposed revisions to the definition of ‘‘family of materials.’’ Response: The EPA has finalized the proposed revisions to this definition. G. Requirements for Metal HAP Process Vents Comment: Two commenters stated that the definition of metal HAP process vent should be revised to better reflect GACT for these emission points. The commenters state that in sulfuric acid regeneration units (SARUs), metal HAP VerDate Mar<15>2010 18:06 Dec 20, 2012 Jkt 229001 are already controlled to >95 percent within the process itself and that it would be unreasonable to require an additional 95 percent control for metal HAP vents. The commenters recommend that a metal HAP process vent be defined as containing at least 50 ppmv metal HAP (similar to the batch and continuous process vents definitions), or that all vents from SARUs be excluded. Response: The EPA agrees with the commenters that a metal HAP process vent should be defined as containing at least 50 ppmv metal HAP, consistent with the definitions of batch and continuous process vents. In reviewing other rules that regulate the chemical sector (e.g., the MON) and define a process vent as containing at least 50 ppmv, the EPA found that it applied to process vents containing any HAP, not just organic HAP. As such, the EPA has revised the final rule to define a metal HAP process vent as containing at least 50 ppmv metal HAP. Comment: One commenter requested that the EPA exempt process vents from CMPU using metal HAP in solution from the requirements for metal HAP process vents. The commenter cites the low potential for emissions from these low vapor pressure metal HAP solutions as rationale for exempting them. One commenter cited 40 CFR part 63, subpart CCCCCCC as an example of an area source rule that exempts metal HAP in solution. The commenter also provided examples of regulatory text that could be used in the CMAS rule. Response: The EPA agrees with the commenter that it is not necessary to subject process vents from CMPU using metal HAP in solution to the requirements for metal HAP process vents. As the CMAS rule requires that CMPU process vents with total metal HAP emissions of less than 400 pounds/ year (lb/yr) maintain records demonstrating that total metal HAP emissions are less than 400 lb/yr, and it is unlikely that process vents from CMPU handling only metal HAP in solution would ever exceed this value due to the little or no potential for air emissions to occur, this requirement results in an unnecessary recordkeeping burden for the facility. As such, we have revised the final rule to state that process vents from CMPU that only contain metal HAP in a liquid solution or other form that will not result in particulate emissions of metal HAP (e.g., metal HAP that is in ingot, paste, slurry or moist pellet form or other form) are not required to comply with the metal HAP process vent requirements. PO 00000 Frm 00014 Fmt 4701 Sfmt 4700 H. Compliance Date Comment: Four commenters requested that the EPA extend the compliance date for a period of time ranging from 18 months to 3 years. The commenters all stated that the potential expansion of the applicability of the final rule would require additional time for sources to re-evaluate whether they would be subject to the rule. One commenter also cited the uncertainty surrounding the family of materials concept as finalized in the original rule and the fact that the EPA did not address the de minimis threshold issue that the Petitioners raised in their petition for reconsideration as reasons for extending the compliance date. The commenters stated that the EPA has the legal authority to extend the compliance date, citing the circumstances under which the EPA did so in the Boiler MACT reconsideration. Response: The EPA agrees that a short extension of the compliance date is warranted for existing sources, not an extension of 18 months to 3 years. Given the amount of uncertainty regarding the applicability of the family of materials concept in the 2009 final rule, the EPA believes that with the revised definition of ‘‘family of materials’’ in these amendments, sources will need the short extension to evaluate applicability and determine the appropriate compliance approach. As such, the EPA believes it is reasonable to provide some additional period of time for facilities to review the revised final rule and determine which CMPU are subject to the requirements. I. Technical Corrections Comment: Six commenters objected to the proposed revision to base CMPU applicability on a collective 0.1 percent by weight (for carcinogens) or 1.0 percent by weight (for non-carcinogens) concentration, rather than an individual compound concentration. The commenters stated that this proposed change goes beyond being a ‘‘technical correction’’ as described in the proposal preamble, as it would significantly expand the scope of the rule and increase the compliance burden for facilities. Two commenters stated that going to a collective HAP concentration would be inconsistent with the Toxics Release Inventory and the Occupational Safety and Health Administration Hazard Communication rules upon which the 0.1 percent and 1.0 percent thresholds were based and would be inconsistent with the definition of ‘‘product’’ in the CMAS rule. E:\FR\FM\21DER2.SGM 21DER2 Federal Register / Vol. 77, No. 246 / Friday, December 21, 2012 / Rules and Regulations mstockstill on DSK4VPTVN1PROD with Three commenters also noted that by having to use the collective concentration, facilities would no longer be able to use MSDS to determine applicability because MSDS are not provided for compounds at concentrations below 0.1 percent. Response: The EPA agrees with the commenters that it is not appropriate to use a collective HAP concentration in determining applicability. It was not the EPA’s intent to expand the applicability of the CMAS rule, but rather to clarify when it applied. As explained above and in section IV.F of this preamble, the commenters brought up numerous issues that the EPA had not considered when proposing this revision that would make determining applicability and complying with the rule extremely difficult. The expansion of the applicability was inadvertent and the final rule has not been revised as proposed. Comment: Five commenters objected to the proposed revision to determine CMPU applicability based on a collective 50 ppmv concentration. The commenters state that, similar to the proposed revision to the 0.1/1.0 percent thresholds, this revision would significantly expand the scope of the rule, as 50 ppmv is a much lower concentration than the 0.1/1.0 percent concentration thresholds that had already been established. Additionally, the commenters stated that facilities would no longer be able to rely upon MSDS for determining applicability and the revision goes beyond being a ‘‘technical correction’’ as described in the proposal preamble. Response: The EPA agrees with the commenters that it is not appropriate to establish a collective 50 ppmv concentration threshold for determining applicability. It was not the EPA’s intent to expand the applicability of the CMAS rule, but rather to make the applicability consistent with the definitions of batch and continuous process vents. As explained above and in section IV.F of this preamble, the commenters brought up numerous issues that the EPA had not considered when proposing this revision, which would have inadvertently expanded the applicability of the rule. The expansion of the applicability was inadvertent and the EPA has not revised the final rule as proposed. VI. What other actions are we taking? In addition to requesting reconsideration of the above issues, the petition for reconsideration also requested the EPA take comment on three additional issues: (1) A de minimis exemption for all sources potentially VerDate Mar<15>2010 18:06 Dec 20, 2012 Jkt 229001 subject to the rule; (2) a Petitioner proposed interpretation of the CAA section 112(c)(7) definition of ‘‘research or laboratory facilities’’ that would include commercial development activities; and (3) a pollution prevention alternative. The EPA is denying reconsideration of these issues because they failed to meet the standard for reconsideration under CAA section 307(d)(7)(B), and the EPA determined that reconsideration was not otherwise appropriate. Specifically, on these issues, the Petitioners have failed to show the following: That it was impracticable to raise their objections during the comment period; and/or that their concern is of central relevance to the outcome of the rules. We have concluded that no clarifications to the underlying rules are warranted for these issues. Section 307(d)(7)(B) of the CAA states that ‘‘[o]nly an objection to a rule or procedure which was raised with reasonable specificity during the period for public comment (including any public hearing) may be raised during judicial review. If the person raising an objection can demonstrate to the Administrator that it was impracticable to raise such objection within such time or if the grounds for such objection arose after the period for public comment (but within the time specified for judicial review) and if such objection is of central relevance to the outcome of the rule, the Administrator shall convene a proceeding for reconsideration of the rule and provide the same procedural rights as would have been afforded had the information been available at the time the rule was proposed. If the Administrator refuses to convene such a proceeding, such person may seek review of such refusal in the United States court of appeals for the appropriate circuit (as provided in subsection (b)).’’ As to the first procedural criterion for reconsideration, a petitioner must show why the issue could not have been presented during the comment period, either because it was impracticable to raise the issue during that time or because the grounds for the issue arose after the period for public comment (but within 60 days of publication of the final action). In the EPA’s view, an objection is of central relevance to the outcome of the rule only if it provides substantial support for the argument that the promulgated regulation should be revised. See, e.g., the EPA’s Denial of the Petition to Reconsider the Endangerment and Cause of Contribute Findings for the Greenhouse Gases under Section 202 of the Clean Air Act, 75 FR 49561 (August 13, 2010). See also, PO 00000 Frm 00015 Fmt 4701 Sfmt 4700 75753 75 FR 49556, 49560–49563 (August 13, 2010), and 76 FR 4780, 4786–4788 (January 26, 2011) for additional discussion of the standard for reconsideration under CAA section 307(d)(7)(B). A. De Minimis Exemption Petitioners stated that the EPA should revise the CMAS final rule to include an across-the-board de minimis exemption for sources. The Petitioners argued that reconsideration would allow commenters to explain how, even with a de minimis exemption, the EPA could meet its statutory obligations. This issue was contained in public comments submitted in response to the CMAS proposed rule published on October 6, 2008 (73 FR 58352). The EPA’s responses to the comments are presented in section V.A of the preamble to the final rule (74 FR 56016– 56018) and section 3.2 (pp. 3–3–3–4) of the October 2009 Response to Comments Regarding National Emission Standards for Hazardous Air Pollutants for Chemical Manufacturing Area Sources document (See Docket Item No. EPA–HQ–OAR–2008–0334–0087). The comments received on this issue demonstrate that the public had ample opportunity to comment on this issue and indeed did so. The EPA responded to those comments and sees no substantive reason to revisit this issue. Therefore, because the Petitioners did not demonstrate that it was impracticable to comment on this issue during the comment period on the proposed rule and the Petitioners did comment on it during the comment period for the 2008 proposal, the EPA is denying reconsideration of this issue. B. Research and Development Interpretation Petitioners stated that the EPA should take comment on an interpretation of ‘‘research and laboratory facility’’ in the CMAS final rule that would exempt equipment associated with ‘‘research’’ or ‘‘laboratory’’ activities as those terms are defined by the Petitioners. The Petitioners were concerned that, without an interpretation of the CAA section 112(c)(7) exemption for research and development facilities, the CMAS rule may pose a substantial compliance challenge for some sources. This issue was contained in public comments submitted in response to the CMAS proposed rule published on October 6, 2008 (73 FR 58352). The EPA’s responses to the comments are presented in section 3.5.3 (pp. 3–11) of the October 2009 Response to Comments Regarding National Emission Standards for Hazardous Air Pollutants E:\FR\FM\21DER2.SGM 21DER2 75754 Federal Register / Vol. 77, No. 246 / Friday, December 21, 2012 / Rules and Regulations for Chemical Manufacturing Area Sources document (See Docket Item No. EPA–HQ–OAR–2008–0334–0087). The comments received on this issue demonstrate that the public had ample opportunity to comment on this issue and indeed did so. The EPA responded to those comments and sees no substantive reason to revisit this issue. Therefore, because the Petitioners did not demonstrate that it was impracticable to comment on this issue during the comment period on the proposed rule and the Petitioners did comment on it during the comment period for the 2008 proposal, the EPA is denying reconsideration of this issue. C. Pollution Prevention Alternative Petitioners stated that the EPA should revise the CMAS final rule to include a pollution prevention alternative. The Petitioners argued that there would be broad interest in this alternative and that data would be made available for the EPA to specify requirements for such an alternative. This issue was contained in public comments submitted in response to the CMAS proposed rule published on October 6, 2008 (73 FR 58352). The EPA’s responses to the comments are presented in section 4.7 (pp. 4–7—4–8) of the October 2009 Response to Comments Regarding National Emission Standards for Hazardous Air Pollutants for Chemical Manufacturing Area Sources document (See Docket Item No. EPA–HQ–OAR–2008–0334–0087). The comments received on this issue demonstrate that the public had ample opportunity to comment on this issue, and indeed did so. The EPA responded to those comments and sees no substantive reason to revisit this issue. Therefore, because the Petitioners did not demonstrate that it was impracticable to comment on this issue during the comment period on the proposed rule and the Petitioners did comment on it during the comment period for the 2008 proposal, the EPA is denying reconsideration of this issue. VII. Statutory and Executive Order Reviews mstockstill on DSK4VPTVN1PROD with A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory 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, the EPA submitted this action to the Office of Management and Budget (OMB) for review under Executive Order 12866 and Executive VerDate Mar<15>2010 18:06 Dec 20, 2012 Jkt 229001 Order 13563 (76 FR 3821, January 21, 2011), 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 the OMB under the Paperwork Reduction Act, 44 U.S.C. 3501, et seq. The Information Collection Request (ICR) document prepared by the EPA has been assigned EPA ICR Number 2323.05. The information collection requirements are not enforceable until OMB approves them. The information requirements are based on notification, recordkeeping and reporting requirements in the NESHAP General Provisions (40 CFR part 63, subpart A), which are mandatory for all operators subject to national emission standards. These recordkeeping and reporting requirements are specifically authorized by section 114 of the CAA (42 U.S.C. 7414). All information submitted to the EPA pursuant to the recordkeeping and reporting requirements for which a claim of confidentiality is made is safeguarded according to agency policies set forth in 40 CFR part 2, subpart B. For this final rule, the EPA is adding affirmative defense to the estimate of burden in the ICR. To provide the public with an estimate of the relative magnitude of the burden associated with an assertion of the affirmative defense position adopted by a source, the EPA has provided administrative adjustments to this ICR to show what the notification, recordkeeping and reporting requirements associated with the assertion of the affirmative defense might entail. The EPA’s estimate for the required notification, reports and records for any individual incident, including the root cause analysis, totals $2,958 and is based on the time and effort required of a source to review relevant data, interview plant employees and document the events surrounding a malfunction that has caused an exceedance of an emissions limit. The estimate also includes time to produce and retain the record and reports for submission to the EPA. The EPA provides this illustrative estimate of this burden because these costs are only incurred if there has been a violation and a source chooses to take advantage of the affirmative defense. Given the variety of circumstances under which malfunctions could occur, as well as differences among sources’ operation and maintenance practices, PO 00000 Frm 00016 Fmt 4701 Sfmt 4700 we cannot reliably predict the severity and frequency of malfunction-related excess emissions events for a particular source. It is important to note that the EPA has no basis currently for estimating the number of malfunctions that would qualify for an affirmative defense. Current historical records would be an inappropriate basis, as source owners or operators previously operated their facilities in recognition that they were exempt from the requirement to comply with emissions standards during malfunctions. Of the number of excess emissions events reported by source operators, only a small number would be expected to result from a malfunction (based on the definition above), and only a subset of excess emissions caused by malfunctions would result in the source choosing to assert the affirmative defense. Thus, we believe the number of instances in which source operators might be expected to avail themselves of the affirmative defense will be extremely small. For this reason, we estimate no more than 2 or 3 such occurrences for all sources subject to 40 CFR part 63, subpart VVVVVV over the 3-year period covered by this ICR. We expect to gather information on such events in the future and will revise this estimate as better information becomes available. 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 the 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 Procedures 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 as defined by the Small Business Administration’s regulations at 13 CFR E:\FR\FM\21DER2.SGM 21DER2 Federal Register / Vol. 77, No. 246 / Friday, December 21, 2012 / Rules and Regulations 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-forprofit enterprise that 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 will not impose any new requirements on any small entities because it does not impose any additional regulatory requirements beyond those already promulgated. D. Unfunded Mandates Reform Act This action contains no federal mandates under the provisions of Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 1531– 1538 for state, local or tribal governments or the private sector. This final rule imposes no enforceable duty on any state, local or tribal governments or the private sector. Therefore, this final rule is not subject to the requirements of sections 202 and 205 of the UMRA. This action 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 rule finalizes amendments to aid with compliance but does not change the level of the standards in the rule. mstockstill on DSK4VPTVN1PROD with E. Executive Order 13132: Federalism This action does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. This final rule will not impose direct compliance costs on state or local governments and will not preempt state law. Thus, Executive Order 13132 does not apply to this action. F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments This final rule does not have tribal implications, as specified in Executive Order 13175 (65 FR 67249, November 9, 2000). It will not have substantial direct effects on tribal governments, on the relationship between the federal VerDate Mar<15>2010 18:06 Dec 20, 2012 Jkt 229001 government and Indian tribes or on the distribution of power and responsibilities between the federal government and Indian tribes, as specified in Executive Order 13175. Thus, Executive Order 13175 does not apply to this final rule. G. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks The 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 final rule is not subject to Executive Order 13045 because it is based solely on technology performance. Further, this action does not relax the control measures on sources regulated by the final rule, and, therefore, will maintain the level of environmental protection. 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, this action does not change the level of standards already in place. I. National Technology Transfer and Advancement Act Section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) of 1995, Public Law No. 104–113, 12(d) (15 U.S.C. 272 note) directs the 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. The NTTAA directs the EPA to provide Congress, through OMB, explanations when the agency decides not use available and applicable VCS. This final rulemaking does not involve technical standards. Therefore, the EPA did not consider the use of any VCS. PO 00000 75755 J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations Executive Order 12898 (59 FR 7629, February 16, 1994) establishes federal executive policy on environmental justice. Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies and activities on minority populations and low-income populations in the United States. The EPA has determined that this final rule, as amended, will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because the rule amendments maintain the level of environmental protection for all affected populations without having any disproportionately high and adverse human health or environmental effects on any population, including any minority or low-income population. This action does not relax the control measures on sources regulated by the final rule, and, therefore, will not cause emissions increases from these sources. K. Congressional Review Act The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A Major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a ‘‘major rule’’ as defined by 5 U.S.C. 804(2). This rule will be effective December 21, 2012. List of Subjects in 40 CFR Part 63 Environmental protection, Administrative practice and procedure, Air pollution control, Hazardous substances. Dated: December 14, 2012. Lisa P. Jackson, Administrator. For the reasons cited in the preamble, title 40, chapter I, part 63 of the Code Frm 00017 Fmt 4701 Sfmt 4700 E:\FR\FM\21DER2.SGM 21DER2 75756 Federal Register / Vol. 77, No. 246 / Friday, December 21, 2012 / Rules and Regulations of Federal Regulations is amended as follows: PART 63—[AMENDED] 1. The authority citation for part 63 continues to read as follows: ■ Authority: 42 U.S.C. 7401, et seq. Subpart VVVVVV—[AMENDED] 2. Lift the stay of subpart VVVVVV published October 25, 2012 (77 FR 65135). ■ 3. In § 63.11494, lift the stay on paragraph (e) published March 14, 2011 (76 FR 13514). ■ 4. Section 63.11494 is amended by: ■ a. Revising paragraph (a); ■ b. Adding paragraph (c)(1)(vii); ■ c. Revising the last sentence in paragraph (d) introductory text; ■ d. Revising paragraphs (e) and (f) to read as follows: ■ mstockstill on DSK4VPTVN1PROD with § 63.11494 What are the applicability requirements and compliance dates? (a) Except as specified in paragraph (c) of this section, you are subject to this subpart if you own or operate a chemical manufacturing process unit (CMPU) that meets the conditions specified in paragraphs (a)(1) and (2) of this section. (1) The CMPU is located at an area source of hazardous air pollutant (HAP) emissions. (2) HAP listed in Table 1 to this subpart (Table 1 HAP) are present in the CMPU, as specified in paragraph (a)(2)(i), (ii), (iii), or (iv) of this section. (i) The CMPU uses as feedstock, any material that contains quinoline, manganese, and/or trivalent chromium at an individual concentration greater than 1.0 percent by weight, or any other Table 1 HAP at an individual concentration greater than 0.1 percent by weight. To determine the Table 1 HAP content of feedstocks, you may rely on formulation data provided by the manufacturer or supplier, such as the Material Safety Data Sheet (MSDS) for the material. If the concentration in an MSDS is presented as a range, use the upper bound of the range. (ii) Quinoline is generated as byproduct and is present in the CMPU in any liquid stream (process or waste) at a concentration greater than 1.0 percent by weight. (iii) Hydrazine and/or Table 1 organic HAP other than quinoline are generated as byproduct and are present in the CMPU in any liquid stream (process or waste), continuous process vent, or batch process vent at an individual concentration greater than 0.1 percent by weight. VerDate Mar<15>2010 18:06 Dec 20, 2012 Jkt 229001 (iv) Hydrazine or any Table 1 HAP is produced as a product of the CMPU. * * * * * (c) * * * (1) * * * (vii) Lead oxide production at Lead Acid Battery Manufacturing Facilities, subject to subpart PPPPPP of this part. * * * * * (d) * * * A CMPU using only Table 1 metal HAP is required to control only total CAA section 112(b) metal HAP in accordance with § 63.11495 and, if applicable, § 63.11496(f). * * * * * (e) Any area source that installed a federally-enforceable control device on an affected CMPU is required to obtain a permit under 40 CFR part 70 or 40 CFR part 71 if the control device on the affected CMPU is necessary to maintain the source’s emissions at area source levels. For new and existing sources subject to this rule on December 21, 2012 and subject to title V as a result of this rule, a complete title V permit application must be submitted no later than December 21, 2013. New and existing sources that become subject to this rule after December 21, 2012 must submit a complete title V permit application no later than 12 months after becoming subject to this rule if the source is subject to title V as a result of this rule. Otherwise, you are exempt from the obligation to obtain a permit under 40 CFR part 70 or 40 CFR part 71, provided you are not otherwise required by law to obtain a permit under 40 CFR 70.3(a) or 40 CFR 71.3(a). Notwithstanding the previous sentence, you must continue to comply with the provisions of this subpart. (f) If you own or operate an existing affected source, you must achieve compliance with the applicable provisions in this subpart no later than March 21, 2013. * * * * * ■ 5. Section 63.11495 is amended by: ■ a. Revising paragraphs (a)(1) and (a)(3); ■ b. Adding paragraph (c) heading; and ■ c. Adding paragraph (d) to read as follows: § 63.11495 What are the management practices and other requirements? (a) * * * (1) Each process vessel must be equipped with a cover or lid that must be closed at all times when it is in organic HAP service or metal HAP service, except for manual operations that require access, such as material addition and removal, inspection, sampling and cleaning. This requirement does not apply to process PO 00000 Frm 00018 Fmt 4701 Sfmt 4700 vessels containing only metal HAP that are in a liquid solution or other form that will not result in particulate emissions of metal HAP (e.g., metal HAP that is in ingot, paste, slurry, or moist pellet form or other form). * * * * * (3) You must conduct inspections of process vessels and equipment for each CMPU in organic HAP service or metal HAP service, as specified in paragraphs (a)(3)(i) through (v) of this section, to demonstrate compliance with paragraph (a)(1) of this section and to determine that the process vessels and equipment are sound and free of leaks. Alternatively, except when the subject CMPU contains metal HAP as particulate, inspections may be conducted while the subject process vessels and equipment are in VOC service, provided that leaks can be detected when in VOC service. (i) Inspections must be conducted at least quarterly. (ii) For these inspections, detection methods incorporating sight, sound, or smell are acceptable. Indications of a leak identified using such methods constitute a leak unless you demonstrate that the indications of a leak are due to a condition other than loss of HAP. If indications of a leak are determined not to be HAP in one quarterly monitoring period, you must still perform the inspection and demonstration in the next quarterly monitoring period. (iii) As an alternative to conducting inspections, as specified in paragraph (a)(3)(ii) of this section, you may use Method 21 of 40 CFR part 60, appendix A–7, with a leak definition of 500 ppmv to detect leaks. You may also use Method 21 with a leak definition of 500 ppmv to determine if indications of a leak identified during an inspection conducted in accordance with paragraph (a)(3)(ii) of this section are due to a condition other than loss of HAP. The procedures in this paragraph (a)(3)(iii) may not be used as an alternative to the inspection required by paragraph (a)(3)(ii) of this section for process vessels that contain metal HAP as particulate. (iv) Inspections must be conducted while the subject CMPU is operating. (v) No inspection is required in a calendar quarter during which the subject CMPU does not operate for the entire calendar quarter and is not in organic HAP service or metal HAP service. If the CMPU operates at all during a calendar quarter, an inspection is required. * * * * * (c) Startup, shutdown and malfunction. * * * E:\FR\FM\21DER2.SGM 21DER2 Federal Register / Vol. 77, No. 246 / Friday, December 21, 2012 / Rules and Regulations (d) General duty. At all times, you must operate and maintain any affected CMPU, including associated air pollution control equipment and monitoring equipment, in a manner consistent with safety and good air pollution control practices for minimizing emissions. Determination of whether such operation and maintenance procedures are being used will be based on information available to the Administrator, which may include, but is not limited to, monitoring results, review of operation and maintenance procedures, review of operation and maintenance records, and inspection of the CMPU. ■ 6. Section 63.11496 is amended by: ■ a. Revising the last sentence in paragraph (c); ■ b. Revising paragraphs (d) and (e) introductory texts; ■ c. Adding paragraph (e)(6); ■ d. Adding a sentence to the end of paragraph (f) introductory text; ■ e. Revising paragraphs (f)(3)(i)(C), (f)(3)(ii), and (g)(1); ■ f. Revising the first sentence in paragraph (g)(2); and ■ g. Revising paragraphs (g)(4)(i) and (g)(5). The additions and revisions read as follows: § 63.11496 What are the standards and compliance requirements for process vents? mstockstill on DSK4VPTVN1PROD with * * * * * (c) * * * The TRE index value for continuous process vents and the annual emissions from batch process vents shall be determined for the individual streams before they are combined, and prior to any control (e.g., by subtracting any emission contributions from storage tanks, continuous process vents or batch process vents, as applicable), in order to determine the most stringent applicable requirements. (d) Halogenated streams. You must determine if an emission stream is a halogenated vent stream by calculating the mass emission rate of halogen atoms in accordance with § 63.115(d)(2)(v). Alternatively, you may elect to designate the emission stream as halogenated. If you use a combustion device to comply with the emission limits for organic HAP from a halogenated batch process vent or a halogenated continuous process vent, you must use a halogen reduction device to meet the emission limit in either paragraph (d)(1) or (d)(2) of this section and in accordance with § 63.994 and the requirements referenced therein. * * * * * VerDate Mar<15>2010 18:06 Dec 20, 2012 Jkt 229001 (e) Alternative standard for organic HAP. Exceptions to the requirements for the alternative standard requirements specified in Tables 2 and 3 to this subpart and § 63.2505 are specified in paragraphs (e)(1) through (6) of this section. * * * * * (6) CEMS requirements and data reduction requirements for CEMS specified in § 63.2450(j) apply. * * * * * (f) Emissions from metal HAP process vents. * * * The requirements of this paragraph (f) do not apply to metal HAP process vents from CMPU containing only metal HAP that are in a liquid solution or other form that will not result in particulate emissions of metal HAP (e.g., metal HAP that is in ingot, paste, slurry, or moist pellet form or other form). * * * * * (3) * * * (i) * * * (C) Operation and maintenance plan for the control device (including a preventative maintenance schedule consistent with the manufacturer’s instructions for routine and long-term maintenance) and continuous monitoring system (CMS). * * * * * (ii) You must conduct a performance test or an engineering assessment for each CMPU subject to a HAP metals emissions limit in Table 4 to this subpart and report the results in your Notification of Compliance Status (NOCS). Each performance test or engineering assessment must be conducted under representative operating conditions, and sampling for each performance test must be conducted at both the inlet and outlet of the control device. Upon request, you shall make available to the Administrator such records as may be necessary to determine the conditions of performance tests. If you own or operate an existing affected source, you are not required to conduct a performance test if a prior performance test was conducted within the 5 years prior to the effective date using the same methods specified in paragraph (f)(3)(iii) of this section, and, either no process changes have been made since the test, or, if you can demonstrate that the results of the performance test, with or without adjustments, reliably demonstrate compliance despite process changes. * * * * * (g) * * * (1) Requirements for performance tests. (i) The requirements specified in § 63.2450(g)(1) through (4) apply instead PO 00000 Frm 00019 Fmt 4701 Sfmt 4700 75757 of, or in addition to, the requirements specified in 40 CFR part 63, subpart SS. (ii) Upon request, you shall make available to the Administrator, such records as may be necessary to determine the conditions of performance tests. (2) Design evaluation. To determine initial compliance with a percent reduction or outlet concentration emission limit, you may elect to conduct a design evaluation as specified in § 63.1257(a)(1) instead of a performance test as specified in subpart SS of this part 63. * * * * * * * * (4) * * * (i) You may measure pH or caustic strength of the scrubber effluent at least once per day for any halogen scrubber within a CMPU subject to this rule. * * * * * (5) Startup, shutdown, malfunction (SSM). Sections 63.996(c)(2)(ii) and 63.998(b)(2)(iii), (b)(6)(i)(A), (c)(1)(ii)(E) and (d)(3) do not apply for the purposes of this subpart. * * * * * ■ 7. Section 63.11497 is amended by adding paragraph (d) to read as follows: § 63.11497 What are the standards and compliance requirements for storage tanks? * * * * * (d) Combustion of halogenated streams. If you use a combustion device to comply with the emission limits for organic HAP from a halogenated vent stream from a storage tank, you must reduce emissions in accordance with § 63.11496(d) and the requirements referenced therein. ■ 8. Section 63.11498 is amended by revising paragraph (a)(2) to read as follows: § 63.11498 What are the standards and compliance requirements for wastewater systems? (a) * * * (2) You are not required to determine the partially soluble concentration in wastewater that is hard piped to a combustion unit or hazardous waste treatment unit, as specified in Table 6, Item 2.b to this subpart. * * * * * ■ 9. Section 63.11500 is amended by revising paragraph (a) to read as follows: § 63.11500 What compliance options do I have if part of my plant is subject to both this subpart and another Federal standard? * * * * * (a) Compliance with other subparts of this part 63. (1) If any part of a CMPU that is subject to the provisions of this E:\FR\FM\21DER2.SGM 21DER2 75758 Federal Register / Vol. 77, No. 246 / Friday, December 21, 2012 / Rules and Regulations subpart is also subject to the provisions of another subpart of 40 CFR part 63, then compliance with any of the requirements in the other subpart of this part 63 that are at least as stringent as the corresponding requirements in this subpart VVVVVV constitutes compliance with this subpart VVVVVV. (2) After the compliance dates specified in § 63.11494, at an offsite reloading or cleaning facility subject to § 63.1253(f), as referenced from § 63.2470(e) and Table 4 to subpart VVVVVV, compliance with the monitoring, recordkeeping, and reporting provisions of any other subpart of this part 63 constitutes compliance with the monitoring, recordkeeping, and reporting provisions of § 63.1253(f)(7)(ii) or (iii). You must identify in your notification of compliance status report required by § 63.11501(b) the subpart of this part 63 with which the owner or operator of the offsite reloading or cleaning facility complies. * * * * * ■ 10. Section 63.11501 is amended by: ■ a. Revising the section heading; ■ b. Revising the last sentence in paragraph (c) introductory text; ■ c. Revising paragraph (c)(1) introductory text; ■ d. Adding paragraphs (c)(1)(vii) and (c)(1)(viii); ■ e. Revising paragraph (c)(4)(i); ■ f. Adding paragraph (c)(8); ■ g. Revising the last sentence in paragraph (d) introductory text; and ■ h. Adding paragraphs (d)(8) and (e) to read as follows: § 63.11501 What are the notification, recordkeeping, and reporting requirements, and how may I assert an affirmative defense for violation of emission standards during malfunction? mstockstill on DSK4VPTVN1PROD with * * * * * (c) Recordkeeping. * * * If you are subject, you must comply with the recordkeeping and reporting requirements of § 63.10(b)(2)(iii) and (vi) through (xiv), and the applicable requirements specified in paragraphs (c)(1) through (8) of this section. (1) For each CMPU subject to this subpart, you must keep the records specified in paragraphs (c)(1)(i) through (viii) of this section. * * * * * (vii) Records of the date, time, and duration of each malfunction of operation of process equipment, control devices, recovery devices, or continuous monitoring systems used to comply with this subpart that causes a failure to meet a standard. The record must include a list of the affected sources or equipment, an estimate of the volume of VerDate Mar<15>2010 18:06 Dec 20, 2012 Jkt 229001 each regulated pollutant emitted over the standard, and a description of the method used to estimate the emissions. (viii) Records of actions taken during periods of malfunction to minimize emissions in accordance with § 63.11495(d), including corrective actions to restore malfunctioning process and air pollution control and monitoring equipment to its normal or usual manner of operation. * * * * * (4) * * * (i) Keep records of the vessel dimensions, capacity, and liquid stored, as specified in § 63.1065(a). * * * * * (8) For continuous process vents subject to Table 3 to this subpart, keep records of the occurrence and duration of each startup and shutdown of operation of process equipment, or of air pollution control and monitoring equipment. (d) * * * Reports are required only for semiannual periods during which you experienced any of the events described in paragraphs (d)(1) through (8) of this section. * * * * * (8) Malfunctions. If a malfunction occurred during the reporting period, the report must include the number of instances of malfunctions that caused emissions in excess of a standard. For each malfunction that caused emissions in excess of a standard, the report must include a list of the affected sources or equipment, an estimate of the volume of each regulated pollutant emitted over the standard, and a description of the method used to estimate the emissions. The report must also include a description of actions you took during a malfunction of an affected source to minimize emissions in accordance with § 63.11495(d), including actions taken to correct a malfunction. (e) Affirmative defense for violation of emission standards during malfunction. In response to an action to enforce the standards set forth in §§ 63.11495 through 63.11499, you may assert an affirmative defense to a claim for civil penalties for violations of such standards that are caused by malfunction, as defined at 40 CFR 63.2. Appropriate penalties may be assessed if you fail to meet your burden of proving all of the requirements in the affirmative defense. The affirmative defense shall not available for claims for injunctive relief. (1) To establish the affirmative defense in any action to enforce such a standard, you must timely meet the notification requirements in paragraph PO 00000 Frm 00020 Fmt 4701 Sfmt 4700 (e)(2) of this section, and must prove by a preponderance of evidence that: (i) The violation: (A) Was caused by a sudden, infrequent, and unavoidable failure of air pollution control equipment, process equipment, or a process to operate in a normal or usual manner; and (B) Could not have been prevented through careful planning, proper design, or better operation and maintenance practices; and (C) Did not stem from any activity or event that could have been foreseen and avoided, or planned for; and (D) Was not part of a recurring pattern indicative of inadequate design, operation, or maintenance; and (ii) Repairs were made as expeditiously as possible when a violation occurred. Off-shift and overtime labor were used, to the extent practicable to make these repairs; and (iii) The frequency, amount, and duration of the violation (including any bypass) were minimized to the maximum extent practicable; and (iv) If the violation resulted from a bypass of control equipment or a process, then the bypass was unavoidable to prevent loss of life, personal injury, or severe property damage; and (v) All possible steps were taken to minimize the impact of the violation on ambient air quality, the environment and human health; and (vi) All emissions monitoring and control systems were kept in operation if at all possible, consistent with safety and good air pollution control practices; and (vii) All of the actions in response to the violation were documented by properly signed, contemporaneous operating logs; and (viii) At all times, the affected CMPU was operated in a manner consistent with good practices for minimizing emissions; and (ix) A written root cause analysis has been prepared, the purpose of which is to determine, correct, and eliminate the primary causes of the malfunction and the violation resulting from the malfunction event at issue. The analysis must also specify, using best monitoring methods and engineering judgment, the amount of any emissions that were the result of the malfunction. (2) Report. If you seek to assert an affirmative defense, you must submit a written report to the Administrator, with all necessary supporting documentation, that you have met the requirements set forth in paragraph (e)(1) of this section. This affirmative defense report must be included in the first periodic compliance report, E:\FR\FM\21DER2.SGM 21DER2 Federal Register / Vol. 77, No. 246 / Friday, December 21, 2012 / Rules and Regulations deviation report, or excess emission report otherwise required after the initial occurrence of the violation of the relevant standard (which may be the end of any applicable averaging period). If such compliance report, deviation report, or excess emission report is due less than 45 days after the initial occurrence of the violation, the affirmative defense report may be included in the second compliance report, deviation report, or excess emission report due after the initial occurrence of the violation of the relevant standard. ■ 11. Section 63.11502 is amended by: ■ a. In paragraph (a) adding in alphabetical order the terms ‘‘Batch operation (§ 63.2550),’’ ‘‘Continuous operation (§ 63.2550),’’ ‘‘Control device (§ 63.111),’’ and ‘‘Isolated intermediate (§ 63.2550),’’ and removing the term ‘‘Family of materials (§ 63.2550)’’; and ■ b. In paragraph (b) adding in alphabetical order definitions for ‘‘Affirmative defense,’’ ‘‘Engineering assessment,’’ ‘‘Family of materials,’’ ‘‘Hazardous waste treatment,’’ ‘‘In VOC service,’’ ‘‘Point of determination,’’ and ‘‘Uncontrolled emissions,’’ revising the second sentence of the definition of ‘‘Batch process vent,’’ revising paragraph (1) of the definition of ‘‘Chemical manufacturing process,’’ and revising the definitions for ‘‘In metal HAP service,’’ ‘‘In organic HAP service,’’ ‘‘Metal HAP process vent,’’ and ‘‘Product’’ to read as follows: § 63.11502 subpart? What definitions apply to this mstockstill on DSK4VPTVN1PROD with * * * * * (b) * * * Affirmative defense means, in the context of an enforcement proceeding, a response or defense put forward by a defendant, regarding which the defendant has the burden of proof, and the merits of which are independently and objectively evaluated in a judicial or administrative proceeding. * * * * * Batch process vent * * * Batch process vents include vents from batch operations and vents with intermittent flow from continuous operations that are not combined with any stream that originated as a continuous gas stream from the same continuous process. * * * * * * * * Chemical manufacturing process * * * (1) All cleaning operations; * * * * * Engineering assessment means, but is not limited to, the following: VerDate Mar<15>2010 18:06 Dec 20, 2012 Jkt 229001 (1) Previous test results provided the tests are representative of current operating practices at the process unit. (2) Bench-scale or pilot-scale test data representative of the process under representative operating conditions. (3) Maximum flow rate, TOC emission rate, organic HAP emission rate, metal HAP emission rate, or net heating value limit specified or implied within a permit limit applicable to the process vent. (4) Design analysis based on accepted chemical engineering principles, measurable process parameters, or physical or chemical laws or properties. Examples of analytical methods include, but are not limited to: (i) Use of material balances based on process stoichiometry to estimate maximum organic HAP or metal HAP concentrations; (ii) Estimation of maximum flow rate based on physical equipment design such as pump or blower capacities; (iii) Estimation of TOC, organic HAP, or metal HAP concentrations based on saturation conditions; or (iv) Estimation of maximum expected net heating value based on the vent stream concentration of each organic compound or, alternatively, as if all TOC in the vent stream were the compound with the highest heating value. (5) All data, assumptions, and procedures used in the engineering assessment shall be documented. * * * * * Family of materials means a grouping of materials that have the same basic composition or the same basic end use or functionality; are produced using the same basic feedstocks, the same manufacturing equipment configuration and in the same sequence of steps; and whose production results in emissions of the same Table 1 HAP at approximately the same rate per pound of product produced. Examples of families of materials include multiple grades of same product or different variations of a product (e.g., blue, black and red resins). * * * * * Hazardous waste treatment, as used in the wastewater requirements, means treatment in any of the following units: (1) A hazardous waste incinerator for which you have been issued a final permit under 40 CFR part 270 and comply with the requirements of 40 CFR part 264, subpart O, for which you have certified compliance with the interim status requirements of 40 CFR part 265, subpart O, or for which you have submitted a Notification of Compliance under 40 CFR 63.1207(j) and comply PO 00000 Frm 00021 Fmt 4701 Sfmt 4700 75759 with the requirements of 40 CFR part 63, subpart EEE at all times (including times when non-hazardous waste is being burned); (2) A process heater or boiler for which you have been issued a final permit under 40 CFR part 270 and comply with the requirements of 40 CFR part 266, subpart H, for which you have certified compliance with the interim status requirements of 40 CFR part 266, subpart H, or for which you have submitted a Notification of Compliance under 40 CFR 63.1207(j) and comply with the requirements of 40 CFR part 63, subpart EEE at all times (including times when non-hazardous waste is being burned); or (3) An underground injection well for which you have been issued a final permit under 40 CFR part 270 or 40 CFR part 144 and comply with the requirements of 40 CFR part 122. In metal HAP service means that a process vessel or piece of equipment either contains or contacts a feedstock, byproduct, or product that contains metal HAP. A process vessel is no longer in metal HAP service after the vessel has been emptied to the extent practicable (i.e., a vessel with liquid left on process vessel walls or as bottom clingage, but not in pools, due to floor irregularity, is considered completely empty) and any cleaning has been completed. In organic HAP service means that a process vessel or piece of equipment either contains or contacts a feedstock, byproduct, or product that contains an organic HAP, excluding any organic HAP used in manual cleaning activities. A process vessel is no longer in organic HAP service after the vessel has been emptied to the extent practicable (i.e., a vessel with liquid left on process vessel walls or as bottom clingage, but not in pools, due to floor irregularity, is considered completely empty) and any cleaning has been completed. In VOC service means that a process vessel or piece of equipment either contains or contacts a fluid that contains VOC. * * * * * Metal HAP process vent means the point of discharge to the atmosphere (or inlet to a control device, if any) of a metal HAP-containing gas stream from any CMPU at an affected source containing at least 50 ppmv metal HAP. The metal HAP concentration may be determined using any of the following: process knowledge, an engineering assessment, or test data. * * * * * E:\FR\FM\21DER2.SGM 21DER2 75760 Federal Register / Vol. 77, No. 246 / Friday, December 21, 2012 / Rules and Regulations Point of determination means ‘‘point of determination’’ as defined in § 63.111 in subpart G of this part, except: (1) The reference to Table 8 or Table 9 compounds means Table 9 (subpart G) or Table 7 (subpart VVVVVV) compounds; (2) The reference to ‘‘as determined in § 63.144 of this subpart’’ does not apply for the purposes of this subpart; and (3) The point of determination is made at the point where the stream exits the CMPU. If a recovery device is used, the point of determination is after the last recovery device. Product means a compound or chemical which is manufactured as the intended product of the CMPU. Products include co-products. Byproducts, impurities, wastes, and trace contaminants are not considered products. * * * * * Uncontrolled emissions means organic HAP process vent emissions or metal HAP process vent emissions, as applicable, at the outlet of the last recovery device, if any, and prior to any control device. In the absence of both recovery devices and control devices, uncontrolled emissions are the emissions discharged to the atmosphere. * * * * * ■ 12. Table 3 to subpart VVVVVV of part 63 is revised to read as follows: TABLE 3 TO SUBPART VVVVVV OF PART 63—EMISSION LIMITS AND COMPLIANCE REQUIREMENTS FOR CONTINUOUS PROCESS VENTS [As required in § 63.11496, you must comply with the requirements for continuous process vents as shown in the following table] For . . . You must . . . Except . . . 1. Each continuous process vent with a TRE ≤1.0. a. Reduce emissions of total organic HAP by ≥95 percent by weight (≥85 percent by weight for periods of startup or shutdown) or to ≤20 ppmv by routing emissions through a closed vent system to any combination of control devices (except a flare) in accordance with the requirements of § 63.982(c) and the requirements referenced therein; or i. Compliance may be based on either total organic HAP or TOC; and ii. As specified in § 63.11496(g). b. Reduce emissions of total organic by HAP by routing all emissions through a closedvent system to a flare (except that a flare may not be used to control halogenated vent streams) in accordance with the requirements of § 63.982(b) and the requirements referenced therein, or i. Not applicable. c. Comply with the alternative standard specified in § 63.2505 and the requirements referenced therein a. Comply with the requirements for halogen scrubbers in § 63.11496(d). a. Comply with the requirements of § 63.982(e) and the requirements specified therein if a recovery device, as defined in § 63.11502, is used to maintain a TRE >1.0 but ≤4.0. i. As specified in § 63.11496(e). 2. Halogenated vent stream that is controlled through combustion. 3. Each continuous process vent with a TRE >1.0 but ≤4.0. 13. The entry for Item 1 of Table 5 to subpart VVVVVV of part 63 is revised to read as follows: * * * * * ■ TABLE 5 TO SUBPART VVVVVV OF PART 63—EMISSION LIMITS AND COMPLIANCE REQUIREMENTS FOR STORAGE TANKS You must . . . Except . . . 1. Storage tank with a design capacity ≥40,000 gallons, storing liquid that contains organic HAP listed in Table 1 to this subpart, and for which the maximum true vapor pressure (MTVP) of total organic HAP at the storage temperature is ≥5.2 kPa and <76.6 kPa.. mstockstill on DSK4VPTVN1PROD with For each . . . a. Comply with the requirements of subpart WW of this part; i. All required seals must be installed by the compliance date in § 63.11494. VerDate Mar<15>2010 18:06 Dec 20, 2012 Jkt 229001 PO 00000 Frm 00022 Fmt 4701 Sfmt 4700 E:\FR\FM\21DER2.SGM 21DER2 75761 Federal Register / Vol. 77, No. 246 / Friday, December 21, 2012 / Rules and Regulations TABLE 5 TO SUBPART VVVVVV OF PART 63—EMISSION LIMITS AND COMPLIANCE REQUIREMENTS FOR STORAGE TANKS—Continued For each . . . You must . . . Except . . . b. Reduce total organic HAP emissions by ≥95 percent by weight by operating and maintaining a closed-vent system and control device (other than a flare) in accordance with § 63.982(c); or i. Compliance may be based on either total organic HAP or TOC; ii. When the term storage vessel is used in subpart SS of this part, the term storage tank, surge control vessel, or bottoms receiver, as defined in § 63.11502 of this subpart, applies; and iii. The requirements do not apply during periods of planned routine maintenance of the control device, as specified in § 63.11497(b). i. The requirements do not apply during periods of planned routine maintenance of the flare, as specified in § 63.11497(b); and ii. When the term storage vessel is used in subpart SS of this part, it means storage tank, surge control vessel, or bottoms receiver, as defined in § 63.11502 of this subpart. i. To comply with § 63.1253(f)(6)(i), the owner or operator of an offsite cleaning or reloading facility must comply with § 63.11494 and § 63.11502 instead of complying with § 63.1253(f)(7)(ii), except as specified in item 1.d.ii and 1.2.iii of this table. ii. The reporting requirements in § 63.11501 do not apply to the owner or operator of the offsite cleaning or reloading facility. iii. As an alternative to complying with the monitoring, recordkeeping, and reporting provisions in §§ 63.11494 through 63.11502, the owner or operator of an offsite cleaning or reloading facility may comply as specified in § 63.11500 with any other subpart of this part 63 which has monitoring, recordkeeping, and reporting provisions as specified in § 63.11500. i. When the term storage vessel is used in subpart SS of this part, it means storage tank, surge control vessel, or bottoms receiver, as defined in § 63.11502. c. Reduce total HAP emissions by operating and maintaining a closed-vent system and a flare in accordance with § 63.982(b); or d. Vapor balance § 63.2470(e); or in accordance with e. Route emissions to a fuel gas system or process in accordance with the requirements in § 63.982(d) and the requirements referenced therein. * * * * * * * * * * * * 14. Table 6 to subpart VVVVVV of part 63 is revised to read as follows: ■ TABLE 6 TO SUBPART VVVVVV OF PART 63—EMISSION LIMITS AND COMPLIANCE REQUIREMENTS FOR WASTEWATER SYSTEMS [As required in § 63.11498, you must comply with the requirements for wastewater systems as shown in the following table] You must . . . And you must . . . 1. Wastewater stream ........................................ mstockstill on DSK4VPTVN1PROD with For each . . . a. Discharge to onsite or offsite wastewater treatment or hazardous waste treatment i. Maintain records identifying each wastewater stream and documenting the type of treatment that it receives. Multiple wastewater streams with similar characteristics and from the same type of activity in a CMPU may be grouped together for recordkeeping purposes. VerDate Mar<15>2010 18:06 Dec 20, 2012 Jkt 229001 PO 00000 Frm 00023 Fmt 4701 Sfmt 4700 E:\FR\FM\21DER2.SGM 21DER2 75762 Federal Register / Vol. 77, No. 246 / Friday, December 21, 2012 / Rules and Regulations TABLE 6 TO SUBPART VVVVVV OF PART 63—EMISSION LIMITS AND COMPLIANCE REQUIREMENTS FOR WASTEWATER SYSTEMS—Continued [As required in § 63.11498, you must comply with the requirements for wastewater systems as shown in the following table] For each . . . You must . . . And you must . . . 2. Wastewater stream containing partially soluble HAP at a concentration ≥10,000 ppmw and separate organic and water phases. a. Use a decanter, steam stripper, thin film evaporator, or distillation unit to separate the water phase from the organic phase(s); or i. For the water phase, comply with the requirements in Item 1 of this table, and ii. For the organic phase(s), recycle to a process, use as fuel, or dispose as hazardous waste either onsite or offsite, and iii. Keep records of the wastewater streams subject to this requirement and the disposition of the organic phase(s). i. Keep records of the wastewater streams subject to this requirement and the disposition of the wastewater streams. b. Hard pipe the entire wastewater stream to onsite treatment as a hazardous waste, or hard pipe the entire wastewater stream to a point of transfer to onsite or offsite hazardous waste treatment. 15. Table 8 to subpart VVVVVV of part 63 is revised to read as follows: ■ TABLE 8 TO SUBPART VVVVVV OF PART 63—EMISSION LIMITS AND COMPLIANCE REQUIREMENTS FOR HEAT EXCHANGE SYSTEMS [As required in § 63.11499, you must comply with the requirements for heat exchange systems as shown in the following table] For . . . You must . . . Except . . . 1. Each heat exchange system with a cooling water flow rate ≥8,000 gal/min and not meeting one or more of the conditions in § 63.104(a). a. Comply with the monitoring requirements in § 63.104(c), the leak repair requirements in § 63.104(d) and (e), and the recordkeeping and reporting requirements in § 63.104(f); or i. The reference to monthly monitoring for the first 6 months in § 63.104(b)(1) and (c)(1)(iii) does not apply. Monitoring shall be no less frequent than quarterly; ii. The reference in § 63.104(f)(1) to record retention requirements in § 63.103(c)(1) does not apply. Records must be retained as specified in §§ 63.10(b)(1) and 63.11501(c); and iii. The reference in § 63.104(f)(2) to ‘‘the next semi-annual periodic report required by § 63.152(c)’’ means the next semi-annual compliance report required by § 63.11501(f). i. Not applicable. b. Comply with the heat exchange system requirements in § 63.104(b) and the requirements referenced therein. 16. Table 9 to subpart VVVVVV of part 63 is amended by: ■ a. Revising the entry for 63.6(e)(1)(i) and (ii), (e)(3), and (f)(1); ■ b. Removing the entry for 63.7(a)(2), (b), (d), (e)(1)–(e)(3); ■ c. Adding new entries for 63.7(a)(2), (b), (d), (e)(2)–(e)(3) and 63.7(e)(1); ■ d. Removing the entry for 63.8(a)(1), (a)(4), (b), (c)(1)–(c)(3), (f)(1)–(5); ■ e. Adding new entries for 63.8(a)(1), (a)(4), (b), (c)(1)(ii), (c)(2)–(c)(3), (f)(1)– (5), 63.8(c)(1)(i), and 63.8(c)(1)(iii); mstockstill on DSK4VPTVN1PROD with ■ VerDate Mar<15>2010 18:06 Dec 20, 2012 Jkt 229001 f. Revising the entry for 63.8(c)(4); g. Removing the entry for 63.8(c)(6)– (c)(8), (d), (e), (f)(6); ■ h. Adding new entries for 63.8(c)(6)– (c)(8), (d)(1)–(d)(2), (e), (f)(6) and 63.8(d)(3); ■ i. Revising the entry for 63.8(g)(5); ■ j. Adding a new entry for 63.9(i); ■ k. Removing the entry for 63.10(b)(2)(i)–(b)(2)(v); ■ l. Adding new entries for 63.10(b)(2)(i), 63.10(b)(2)(ii), ■ ■ PO 00000 Frm 00024 Fmt 4701 Sfmt 4700 63.10(b)(2)(iii), and 63.10(b)(2)(iv) and (v); ■ m. Removing the entry for 63.10(c)(7)– (c)(8), (c)(10)–(c)(12), (c)(15); ■ n. Adding new entries for 63.10(c)(7)– (8), 63.10(c)(10), 63.10(c)(11), 63.10(c)(12), and 63.10(c)(15); and ■ o. Revising the entry for 63.10(d)(5). E:\FR\FM\21DER2.SGM 21DER2 75763 Federal Register / Vol. 77, No. 246 / Friday, December 21, 2012 / Rules and Regulations The additions and revisions read as follows: TABLE 9 TO SUBPART VVVVVV OF PART 63—APPLICABILITY OF GENERAL PROVISIONS TO SUBPART VVVVVV * * * * * Subject Applies to subpart VVVVVV * * 63.6(e)(1)(i) and (ii), (e)(3), and (f)(1). * * SSM Requirements ........................ No ................ * * 63.7(a)(2), (b), (d), (e)(2)–(e)(3) ...... * * Performance Testing Schedule, Notification of Performance Test, Performance Testing Facilities, and Conduct of Performance Tests. 63.7(e)(1) ......................................... Performance Testing ..................... No ................ 63.8(a)(1), (a)(4), (b), (c)(1)(ii), (c)(2)–(c)(3), (f)(1)–(5). 63.8(c)(1)(i) ...................................... Monitoring Requirements ............... General Duty to Minimize Emissions and CMS Operation. Requirement to Develop SSM Plan for CMS. No ................ * * 63.8(c)(4) .......................................... * * ........................................................ Yes ............... * * 63.8(c)(6)–(c)(8), (d)(1)–(d)(2), (e), (f)(6). * * ........................................................ Yes ............... 63.8(d)(3) ......................................... Written Procedures for CMS ......... Yes ............... * * 63.8(g)(5) ......................................... * * ........................................................ No ................ * * 63.9(i) ............................................... * * ........................................................ Yes ............... * * 63.10(b)(2)(i) .................................... * * Recordkeeping of Occurrence and Duration of Startups and Shutdowns. No ................ 63.10(b)(2)(ii) ................................... Recordkeeping of Malfunctions ..... No ................ 63.10(b)(2)(iii) ................................... 63.10(b)(2)(iv) and (v) ...................... Maintenance Records .................... Actions Taken to Minimize Emissions During SSM. Yes ............... No ................ * Yes ............... 63.8(c)(1)(iii) ..................................... mstockstill on DSK4VPTVN1PROD with Citation * VerDate Mar<15>2010 18:06 Dec 20, 2012 Jkt 229001 PO 00000 Frm 00025 Fmt 4701 Yes/No ......... Explanation * * * See § 63.11495(d) for general duty requirement. * * * Requirements apply if conducting test for metal HAP control; requirements in §§ 63.997(c)(1), (d), (e), and 63.999(a)(1) apply, as referenced in § 63.11496(g), if conducting test for organic HAP or hydrogen halide and halogen HAP control device. See § 63.11496(f)(3)(ii) if conducting a test for metal HAP emissions. See §§ 63.11496(g) and 63.997(e)(1) if conducting a test for continuous process vents or for hydrogen halide and halogen emissions. See §§ 63.11496(g) and 63.2460(c) if conducting a test for batch process vents. No ................ * * * Only for CEMS. CPMS requirements in 40 CFR part 63, subpart SS are referenced from § 63.11496. Requirements for COMS do not apply because subpart VVVVVV does not require COMS. * * * Requirements apply only if you use a continuous emission monitoring system (CEMS) to demonstrate compliance with the alternative standard in § 63.11496(e). Requirement applies except for last sentence, which refers to an SSM plan. SSM plans are not required. * * * Data reduction requirements for CEMS are specified in § 63.2450(j)(4), as referenced from § 63.11496. CPMS requirements are specified in 40 CFR part 63, subpart SS, as referenced from § 63.11496. * Sfmt 4700 * * * * * See § 63.11501(c)(8) for recordkeeping of occurrence and duration of each startup and shutdown for continuous process vents that are subpart to Table 3 to this subpart. See § 63.11501(c)(1)(vii) and (viii) for recordkeeping of (1) date, time, duration, and volume of excess emissions and (2) actions taken during malfunction. E:\FR\FM\21DER2.SGM 21DER2 75764 Federal Register / Vol. 77, No. 246 / Friday, December 21, 2012 / Rules and Regulations TABLE 9 TO SUBPART VVVVVV OF PART 63—APPLICABILITY OF GENERAL PROVISIONS TO SUBPART VVVVVV— Continued * * * * * * Applies to subpart VVVVVV Citation Subject * * 63.10(c)(7)–(8) ................................. 63.10(c)(11) ...................................... * * Additional Recordkeeping Requirements for CMS—Identifying Exceedances and Excess Emissions. Recordkeeping Nature and Cause of Malfunctions. Recording Corrective Actions ........ No ................ 63.10(c)(12) ...................................... 63.10(c)(15) ...................................... ........................................................ Use of SSM Plan ........................... Yes ............... No ................ * * 63.10(d)(5) ....................................... * * SSM Reports ................................. No ................ 63.10(c)(10) ...................................... * * * Explanation * * No ................ * See § 63.11501(c)(1)(vii) and (viii) for malfunctions recordkeeping requirements. See § 63.11501(c)(1)(vii) and (viii) for malfunctions recordkeeping requirements. * * * See § 63.11501(d)(8) for reporting requirements for malfunctions. * * BILLING CODE 6560–50–P VerDate Mar<15>2010 18:06 Dec 20, 2012 Jkt 229001 PO 00000 Frm 00026 Fmt 4701 * Yes ............... [FR Doc. 2012–30698 Filed 12–20–12; 8:45 am] mstockstill on DSK4VPTVN1PROD with * Sfmt 9990 E:\FR\FM\21DER2.SGM 21DER2 *

Agencies

ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 77, Number 246 (Friday, December 21, 2012)]
[Rules and Regulations]
[Pages 75739-75764]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-30698]

[[Page 75739]]

Vol. 77

Friday,

No. 246

December 21, 2012

Part III

Environmental Protection Agency

-----------------------------------------------------------------------

40 CFR Part 63

National Emission Standards for Hazardous Air Pollutants for Chemical
Manufacturing Area Sources; Final Rule

Federal Register / Vol. 77 , No. 246 / Friday, December 21, 2012 /
Rules and Regulations

[[Page 75740]]

-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 63

[EPA-HQ-OAR-2008-0334; FRL-9725-9]
RIN 2060-AQ89

National Emission Standards for Hazardous Air Pollutants for
Chemical Manufacturing Area Sources

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule; lift stay of final rule.

-----------------------------------------------------------------------

SUMMARY: On January 30, 2012, the EPA proposed revisions to several
provisions of the final National Emission Standards for Hazardous Air
Pollutants for Chemical Manufacturing Area Sources. The proposed
revisions were made, in part, in response to a petition for
reconsideration received by the Administrator following the
promulgation of the October 29, 2009, final rule (``2009 final rule'').
In this action, the EPA is finalizing those amendments, lifting the
stay of the title V permit requirement issued on March 14, 2011, and
lifting the stay of the final rule issued on October 25, 2012. In
addition, this final action includes revisions to the EPA's approach
for addressing malfunctions and standards applicable during startup and
shutdown periods. This final action also includes amendments and
technical corrections to the final rule to clarify applicability and
compliance issues raised by stakeholders subject to the 2009 final
rule. The revisions to the final rule do not reduce the level of
environmental protection or emissions control on sources regulated by
this rule but provide flexibility and clarity to improve
implementation. This action also extends the compliance date for
existing sources and the EPA's final response to all issues raised in
the petition for reconsideration.

DATES: The stay of subpart VVVVVV and the stay of paragraph (e) of 40
CFR 63.11494 are lifted as of December 21, 2012. This final rule is
effective on December 21, 2012.

ADDRESSES: The EPA has established a docket for this action under
Docket ID No. EPA-HQ-OAR-2008-0334. All documents in the docket are
listed in the 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. Publicly available docket
materials are available either electronically in www.regulations.gov or
in hard copy at the EPA Docket Center, EPA West Building, 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 Docket Center is (202)
566-1742.

FOR FURTHER INFORMATION CONTACT: Mr. Nick Parsons, Sector Policies and
Programs Division (E143-01), Office of Air Quality Planning and
Standards, U.S. Environmental Protection Agency, Research Triangle
Park, North Carolina 27711; telephone number: (919) 541-5372; fax
number: (919) 541-0246; email address: parsons.nick@epa.gov.

SUPPLEMENTARY INFORMATION:
Acronyms and Abbreviations. Several acronyms and terms used to
describe industrial processes are included in this final action. While
this may not be an exhaustive list, to ease the reading of this
preamble and for reference purposes, the following terms and acronyms
are defined here:

CAA Clean Air Act
CEMS Continuous Emission Monitoring System
CFR Code of Federal Regulations
CMAS Chemical Manufacturing Area Source
CMPU Chemical Manufacturing Process Unit
COMS Continuous Opacity Monitoring System
CPMS Continuous Parameter Monitoring System
EPA Environmental Protection Agency
FESOP Federally Enforceable State Operating Permit
GACT Generally Available Control Technology
HAP Hazardous Air Pollutants
HON National Emission Standards for Organic Hazardous Air Pollutants
From the Synthetic Organic Chemical Manufacturing Industry
ICR Information Collection Request
lb/yr Pounds Per Year
MACT Maximum Achievable Control Technology
MON National Emission Standards for Hazardous Air Pollutants:
Miscellaneous Organic Chemical Manufacturing
MSDS Material Safety Data Sheet
NESHAP National Emissions Standards for Hazardous Air Pollutants
NOCS Notice of Compliance Status
NTTAA National Technology Transfer and Advancement Act
OECA Office of Enforcement and Compliance Assurance
OMB Office of Management and Budget
ppmv Parts Per Million by Volume
RCRA Resource Conservation and Recovery Act
SARU Sulfuric Acid Regeneration Unit
SSM Startup, Shutdown and Malfunction
tpy Tons Per Year
TTN Technology Transfer Network
UMRA Unfunded Mandates Reform Act
VCS Voluntary Consensus Standards
VOC Volatile Organic Compound
WWW World Wide Web

Organization of This Document. The following outline is provided to
aid in locating information in this preamble.

I. General Information
A. Executive Summary
B. Does this action apply to me?
C. How do I obtain a copy of this document and other related
information?
D. Judicial Review
II. Background Information
III. Summary of Final Rule Revisions
A. Applicability of the Family of Materials Concept
B. Title V Permitting Requirements
C. Requirements When Other Rules Overlap With the Final Rule
D. Requirement To Conduct Direct and Proximal Leak Inspections
E. Requirement for Covers or Lids on Process Vessels
F. Requirement To Conduct Leak Inspections When Equipment Is in
HAP Service
G. Requirements During Periods of Startup, Shutdown and
Malfunction
H. Requirements for Metal HAP Process Vents
I. Extension of the Compliance Date
J. Technical Corrections
IV. Summary of Major Changes Since Proposal
A. Title V Permitting Requirements
B. Requirement for Covers or Lids on Process Vessels
C. Requirement To Conduct Leak Inspections When Equipment Is in
HAP Service
D. Requirements for Metal HAP Process Vents
E. Extension of the Compliance Date
F. Technical Corrections
V. Summary of Comments and Responses
A. Title V Permitting Requirements
B. Requirements When Other Rules Overlap With the Final Rule
C. Requirement To Conduct Direct and Proximal Leak Inspections
D. Requirement for Covers or Lids on Process Vessels
E. Requirement To Conduct Leak Inspections When Equipment Is in
HAP Service
F. Applicability of the Family of Materials Concept
G. Requirements for Metal HAP Process Vents
H. Compliance Date
I. Technical Corrections
VI. What other actions are we taking?
A. De Minimis Exemption
B. Research and Development Interpretation
C. Pollution Prevention Alternative
VII. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review and
Executive Order 13563: Improving Regulation and Regulatory Review

[[Page 75741]]

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 Risks and Safety Risks
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
I. National Technology Transfer and Advancement Act
J. Executive Order 12898: Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations
K. Congressional Review Act

A red-line version of the regulatory language that incorporates the
changes in this action is available in the docket.

I. General Information

A. Executive Summary

1. Purpose of the Regulatory Action
The EPA issued the NESHAP for the nine chemical manufacturing area
source categories (40 CFR part 63, subpart VVVVVV) on October 29, 2009
(74 FR 56008). Pursuant to CAA section 307(d)(7)(B), the EPA received a
petition for reconsideration on February 12, 2010. The petitioners
requested that the EPA reconsider six provisions in the final rule. In
response to this petition, the EPA proposed revisions to several
provisions of the final rule on January 30, 2012 (77 FR 4522).
This final action addresses the public comments on the proposal and
finalizes amendments to subpart VVVVVV. The amendments relate to issues
raised in the petition for reconsideration and also include technical
corrections that clarify applicability and compliance issues of the
final rule. This action also lifts the stay of the title V permit
requirement that was issued on March 14, 2011 (76 FR 13514) and the
stay of the final rule that was issued on October 25, 2012 (77 FR
65135). This action also provides an extension of the compliance date
for existing sources.
2. Summary of Major Provisions
The revised final rule lifts the stay on the title V permitting
requirement and requires that certain chemical manufacturing synthetic
area sources that installed controls obtain a title V permit. The EPA
continues to believe that the additional protections provided by a
title V permit are warranted for the sources subject to title V
pursuant to this rule for the reasons stated in the rulemaking record.
See 74 FR 56013-56014, 56034-56039 (October 29, 2009); 77 FR 4525-4527
(January 30, 2012).
The EPA is also finalizing several revisions to the final rule to
improve clarity and provide facilities with greater flexibility. The
leak inspection requirements are revised such that facilities conduct
quarterly sensory inspections instead of ``direct and proximal
(thorough)'' inspections, and that leak inspections may be conducted
while equipment is in VOC service instead of in organic HAP service.
The final rule also allows facilities to remove the required cover or
lid on a process vessel when access is required during manual
operations. Several definitions, including ``in organic HAP service,''
``in metal HAP service,'' ``metal HAP process vent'' and ``family of
materials'' are clarified and/or revised in the final rule. The EPA is
also finalizing several technical corrections. Finally, the EPA is
extending the compliance date for existing sources until March 21,
2013.
3. Costs and Emissions Reductions
The costs and emissions reductions associated with this rule have
not changed from the October 29, 2009, final rule. Table 1 below
summarizes the costs and emissions reductions of 40 CFR part 63,
subpart VVVVVV. See section VI of the preamble to the October 29, 2009
final rule (74 FR 56039-56040) for further discussion of the costs and
impacts.

Table 1--Summary of the Costs and Emissions Reductions of 40 CFR Part 63, Subpart VVVVVV
----------------------------------------------------------------------------------------------------------------
Emissions
Requirement Capital costs Annualized reductions
($) costs ($/yr) (tpy)
----------------------------------------------------------------------------------------------------------------
Batch process vents............................................. $390,000 $370,000 <43
Continuous process vents........................................ 170,000 85,000 <29
Metal HAP process vents......................................... 690,000 1,700,000 41
Storage tanks................................................... 85,000 15,000 5
Heat exchange systems........................................... 640,000 280,000 79
Transfer operations............................................. 75,000 10,000 1
Wastewater systems.............................................. 210,000 79,000 51
Management practices............................................ 540,000 685,000 N/A
-----------------------------------------------
Total....................................................... 2,800,000 3,200,000 248
----------------------------------------------------------------------------------------------------------------

B. Does this action apply to me?

The regulated categories and entities potentially affected by this
action include:

[[Page 75742]]

------------------------------------------------------------------------
Examples of regulated
Industry category NAICS code \1\ entities
------------------------------------------------------------------------
Chemical Manufacturing......... 325 Chemical manufacturing
area sources that use
as feedstock,
generate as byproduct
or produce as
product, any of the
hazardous air
pollutants (HAP)
subject to this
subpart except for:
(1) Processes
classified in NAICS
Code 325222, 325314
or 325413; (2)
processes subject to
standards for other
listed area source
categories \2\ in
NAICS Code 325; (3)
certain fabricating
operations; (4)
manufacture of
photographic film,
paper and plate where
material is coated or
contains chemicals
(but the manufacture
of the photographic
chemicals is
regulated); and (5)
manufacture of
radioactive elements
or isotopes, radium
chloride, radium
luminous compounds,
strontium and
uranium.
------------------------------------------------------------------------
\1\ North American Industry Classification System.
\2\ The source categories in NAICS Code 325 for which other area source
standards apply are: Acrylic Fibers/Modacrylic Fibers Production,
Chemical Preparation, Carbon Black, Chemical Manufacturing: Chromium
Compounds, Lead Oxide Production, Polyvinyl Chloride and Copolymers
Production, Paint and Allied Coatings and Mercury Cell Chlor-Alkali
Manufacturing.

This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to be regulated by this
reconsideration action. To determine whether your facility may be
affected by this final rule, you should examine the applicability
criteria in 40 CFR 63.11494 of subpart VVVVVV (National Emission
Standards for Hazardous Air Pollutants for Chemical Manufacturing Area
Sources). If you have any questions regarding the applicability of the
final rule to a particular entity, consult either the air permit
authority for the entity or your EPA regional representative, as listed
in 40 CFR 63.13.

C. How do I obtain a copy of this document and other related
information?

Docket. The docket number for this action and the final rule (40
CFR part 63, subpart VVVVVV) is Docket ID No. EPA-HQ-OAR-2008-0334.
World Wide Web (WWW). In addition to being available in the docket,
an electronic copy of this action is available on the WWW through the
Technology Transfer Network (TTN) Web site. Following signature, a copy
of this notice will be posted on the TTN's policy and guidance page for
newly proposed or promulgated rules at https://www.epa.gov/ttn/oarpg.
The TTN provides information and technology exchange in various areas
of air pollution control.

D. Judicial Review

Under section 307(b)(1) of the Clean Air Act (CAA), judicial review
of this final rule is available only by filing a petition for review in
the United States Court of Appeals for the District of Columbia Circuit
by February 19, 2013. Under section 307(b)(2) of the CAA, the
requirements established by this final rule may not be challenged
separately in any civil or criminal proceedings brought by the EPA to
enforce these requirements. Section 307(d)(7)(B) of the CAA further
provides that ``[o]nly an objection to a rule or procedure which was
raised with reasonable specificity during the period for public comment
(including any public hearing) may be raised during judicial review.''
This section also provides a mechanism for the EPA to convene a
proceeding for reconsideration, ``[i]f the person raising an objection
can demonstrate to EPA that it was impracticable to raise such
objection within [the period for public comment] or if the grounds for
such objection arose after the period for public comment (but within
the time specified for judicial review) and if such objection is of
central relevance to the outcome of this rule.'' Any person seeking to
make such a demonstration to us should submit a Petition for
Reconsideration to the Office of the Administrator, U.S. EPA, Room
3000, Ariel Rios Building, 1200 Pennsylvania Ave. NW., Washington, DC
20460, with a copy to both the person listed in the preceding FOR
FURTHER INFORMATION CONTACT section, and the Associate General Counsel
for the Air and Radiation Law Office, Office of General Counsel (Mail
Code 2344A), U.S. EPA, 1200 Pennsylvania Ave. NW., Washington, DC
20460.

II. Background Information

Section 112(d) of the CAA requires the EPA to establish national
emission standards for hazardous air pollutants (NESHAP) for both major
and area sources of HAP that are listed for regulation under CAA
section 112(c). A major source is any stationary source that 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.
On October 29, 2009 (74 FR 56008), the EPA issued the NESHAP for
the nine chemical manufacturing area source (CMAS) categories that were
listed pursuant to CAA sections 112(c)(3) and 112(k)(3)(B). The nine
area source categories are Agricultural Chemicals and Pesticides
Manufacturing, Cyclic Crude and Intermediate Production, Industrial
Inorganic Chemical Manufacturing, Industrial Organic Chemical
Manufacturing, Inorganic Pigments Manufacturing, Miscellaneous Organic
Chemical Manufacturing, Plastic Materials and Resins Manufacturing,
Pharmaceutical Production and Synthetic Rubber Manufacturing.
Section 112(k)(3)(B) of the CAA directs the EPA to identify at
least 30 HAP that, as a result of emissions from area sources, pose the
greatest threat to public health in the largest number of urban areas.
The EPA implemented this provision in 1999 in the Integrated Urban Air
Toxics Strategy (64 FR 38715, July 19, 1999) (Strategy). Specifically,
in the Strategy, the 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) of the CAA requires the EPA to
list sufficient categories or subcategories of area sources to ensure
that area sources representing 90 percent of the area source emissions
of the 30 urban HAP are subject to regulation. The EPA completed this
requirement in 2011 (76 FR 15308, March 21, 2011). The nine CMAS
categories were listed to satisfy this requirement for 15 of the 30
urban HAP.\1\ Pursuant to CAA section 112(d)(5), the NESHAP reflect
generally available control technologies or management practices
(GACT). The NESHAP apply to each chemical manufacturing process unit
(CMPU) that uses, generates or produces any of the 15 urban HAP for
which the area source categories were listed (collectively

[[Page 75743]]

``chemical manufacturing urban HAP'' or ``Table 1 HAP'').
---------------------------------------------------------------------------

\1\ The 15 urban HAP for which the chemical manufacturing area
source categories were listed under CAA section 112(c) are
identified in table 1 of the final rule.
---------------------------------------------------------------------------

On February 12, 2010, following promulgation of the 2009 final
rule, the EPA received a petition for reconsideration from the American
Chemistry Council and the Society of Chemical Manufacturers &
Affiliates (``Petitioners''). A copy of this petition is provided in
the docket (see Docket Item No. EPA-HQ-OAR-2008-0334-0098).
Petitioners, pursuant to CAA section 307(d)(7)(B), requested that the
EPA reconsider six provisions in the rules: (1) The requirement that
major sources that installed air pollution controls after 1990, and, as
a result, became area sources, obtain a title V permit; (2) the
requirement that sources subject to the final rule and any overlapping
provision in another rule comply with each provision independently, or
with the most stringent requirements of each rule; (3) the requirement
that leak inspections include direct and proximal (thorough) inspection
of all areas of potential leak within the CMPU; (4) the requirement
that process vessels in HAP service be equipped with a cover or lid
that must be in place at all times when the vessel contains HAP, except
for material addition and sampling; (5) the requirement to conduct leak
inspections while the equipment is in HAP service; and (6) the
requirement that a CMPU include all equipment and processes used to
produce a ``family of materials.'' \2\ The arguments in support of
these requests are provided in the petition and in the preamble to the
reconsideration proposed rule revisions (77 FR 4525-4530, January 30,
2012). Petitioners also requested that the EPA stay the effectiveness
of these provisions of the rule to save many facilities from needlessly
having to file the initial notifications required by the final rule.
---------------------------------------------------------------------------

\2\ The petition also requested that the EPA take comment on
three additional issues: (1) A de minimis exemption for all sources;
(2) a revision of the definition of laboratory analysis unit to
include commercial development activities; and (3) a pollution
prevention alternative. The EPA did not seek comment on these issues
in reconsideration as explained below in section VI of this
preamble.
---------------------------------------------------------------------------

On June 15, 2010, the EPA sent a letter to the Petitioners
informing them that the EPA was granting the request for
reconsideration on at least one of the issues raised in the petition,
and that the agency would identify the specific issue or issues for
which it was granting reconsideration in the reconsideration notice
that would be published in the Federal Register. The letter also
indicated that the EPA considered the request for a stay to be moot
because the due date for initial notifications had already passed.
On January 30, 2012, the EPA published proposed rule revisions that
included six provisions for which reconsideration was requested.
Specifically, the EPA: (1) Proposed to narrow the requirement for
sources to obtain a title V permit to only those synthetic area sources
that installed a federally-enforceable control device on an affected
CMPU; (2) sought comment on the overlapping provisions requirement; (3)
proposed to remove the requirement to conduct direct and proximal
(thorough) leak inspections; (4) proposed to allow sources to remove
the cover or lid on a process vessel when manual access is necessary;
(5) sought comment on allowing leak inspections to be conducted when
equipment is in volatile organic compound (VOC) service; and (6)
proposed to clarify the family of materials concept. In addition, the
EPA also proposed clarifying revisions to the requirements for metal
HAP process vents, the addition of the affirmative defense provisions
and numerous technical corrections.
On October 25, 2012, the EPA published a 60-day stay of the final
CMAS rule (77 FR 65135). The compliance date for the final CMAS rule
was October 29, 2012, and it was the EPA's expectation that the
reconsideration would be finalized in advance of that date. However,
the EPA was still in the process of finalizing the reconsideration
action. For that reason, a short stay of the final rule was appropriate
to allow the EPA the time necessary to complete the reconsideration
action.

III. Summary of Final Rule Revisions

A. Applicability of the Family of Materials Concept

The final rule revises the definition of ``family of materials'' in
40 CFR 63.11502(a) by removing the definition that was incorporated by
reference to the Miscellaneous Organic Chemical Manufacturing NESHAP
(MON) and replacing it with a definition in 40 CFR 63.11502(b) specific
to the CMAS rule. The definition clarifies that the family of materials
concept applies only to those products whose production involves
emission of the same Table 1 HAP.

B. Title V Permitting Requirements

The revised final rule requires synthetic area sources that
installed a federally-enforceable control device on at least one
affected CMPU to obtain a title V permit. The final rule lifts the stay
on the title V permitting requirement (76 FR 13514, March 14, 2011) and
requires such sources to submit their title V permit application by
December 21, 2013 or on such earlier date as the title V permitting
authority requires.

C. Requirements When Other Rules Overlap With the Final Rule

The revised final rule requires that facilities comply with the
most stringent requirements when there are overlapping provisions in
the CMAS rule and other NESHAP. Sources are required to determine which
of the overlapping requirements applicable to the source are more
stringent.

D. Requirement To Conduct Direct and Proximal Leak Inspections

The revised final rule removes the requirement in 40 CFR
63.11495(a)(3) that facilities conduct a ``direct and proximal
(thorough)'' leak inspection, and instead requires that facilities
conduct quarterly sensory inspections of all equipment and process
vessels, provided that these methods are capable of detecting leaks
within the CMPU (i.e., the inspector is within sufficient proximity to
the equipment that leaky equipment can be detected by sight, sound or
smell). The revised final rule also allows affected facilities to
conduct leak inspections of equipment in VOC service instead of in
organic HAP service, provided that leaks can be detected while in VOC
service. A CMPU that contains metal HAP as particulate must conduct
leak inspections while the equipment is in metal HAP service.

E. Requirement for Covers or Lids on Process Vessels

The final rule requires in 40 CFR 63.11495(a)(1) that a cover or
lid must be in place and closed at all times when a process vessel is
in organic HAP service or in metal HAP service, except when access is
required during manual operations such as material addition, removal,
inspection, sampling and cleaning. Process vessels containing metal HAP
that are in a liquid solution or other form that will not result in
particulate emissions of metal HAP (e.g., metal HAP that is in ingot,
paste, slurry or moist pellet form or other form) are not subject to
this requirement.
The definitions of ``in organic HAP service'' and ``in metal HAP
service'' in 40 CFR 63.11502(b) have been revised to state that a
process vessel is no longer considered to be in organic HAP service or
in metal HAP service once it has been emptied to the extent practicable
and any cleaning has been completed.

[[Page 75744]]

F. Requirement To Conduct Leak Inspections When Equipment Is in HAP
Service

The final rule requires in 40 CFR 63.11495(a)(3) that leak
inspections be conducted while the subject CMPU is operating in organic
HAP service or in metal HAP service. This provision also allows CMPU
that do not contain metal HAP as particulate to conduct leak
inspections when the subject CMPU is in VOC service, provided that
leaks can be detected while in VOC service. A CMPU that contains metal
HAP as particulate must conduct leak inspections while the equipment is
in metal HAP service.

G. Requirements During Periods of Startup, Shutdown and Malfunction

The EPA is adding to the final rule an affirmative defense to civil
penalties for violations of emission standards that are caused by
malfunctions. During the comment period of the October 6, 2008,
proposed rule (``2008 proposal''), the United States Court of Appeals
for the District of Columbia Circuit vacated two provisions in the
EPA's CAA section 112 regulations governing the emissions of HAP during
periods of startup, shutdown and malfunction (SSM). Sierra Club v. EPA,
551 F.3d 1019 (D.C. Cir. 2008), cert. denied, 130 S. Ct. 1735 (U.S.
2010). Specifically, the Court vacated the SSM exemption contained in
40 CFR 63.6(f)(1) and 40 CFR 63.6(h)(1), that are part of a regulation,
commonly referred to as the ``General Provisions Rule,'' that the EPA
promulgated under section 112 of the CAA. When incorporated into CAA
section 112(d) regulations for specific source categories, the
exemption in these two provisions exempts sources from the requirement
to comply with otherwise applicable CAA section 112(d) emission
standards during periods of SSM.
The 2008 proposal contained references to the vacated provisions.
Because the provisions were vacated, we removed the references in the
2009 final rule, and, consistent with Sierra Club v. EPA, established
standards that applied at all times. In the vacated provisions' place,
we included alternative standards for startup and shutdown periods for
continuous process vents. Table 3 to 40 CFR part 63, subpart VVVVVV.
For batch process vents, we determined that startup and shutdown
periods were already accounted for in the existing standard and we
determined that the remaining equipment did not have periods of startup
and shutdown. See 74 FR 56013, October 29, 2009. We declined to
establish a different standard for malfunctions, as suggested by
commenters. See 74 FR 56033, October 29, 2009.
Further, as explained in the preamble to the 2009 final rule (74 FR
56033, October 29, 2009), periods of startup, normal operations and
shutdown are all predictable and routine aspects of a source's
operations. However, by contrast, 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). The EPA has
determined that CAA section 112 does not require that emissions that
occur during periods of malfunction be factored into development of CAA
section 112 standards. There is nothing in section 112 that directs the
agency to consider malfunctions in determining the level ``achieved''
by the best performing or best controlled sources when setting emission
standards. Moreover, while the EPA accounts for variability in setting
emissions standards consistent with the section 112 case law, nothing
in that case law requires the agency to consider malfunctions as part
of that analysis. Section 112 uses the concept of ``best controlled''
and ``best performing'' unit in defining the level of stringency that
section 112 performance standards must meet. Applying the concept of
``best controlled'' or ``best performing'' to a unit that is
malfunctioning presents significant difficulties, as malfunctions are
sudden and unexpected events. Similarly, although standards for area
sources are not required to be set based on ``best performers,'' we
believe that what is ``generally available'' should not be based on
periods in which there is a ``failure to operate.''
Further, accounting for malfunctions would be difficult, if not
impossible, given the myriad different types of malfunctions that can
occur across all sources in the categories and given the difficulties
associated with predicting or accounting for the frequency, degree and
duration of various malfunctions that might occur. As such, the
performance of units that are malfunctioning is not ``reasonably''
foreseeable. See, e.g., Sierra Club v. EPA, 167 F. 3d 658, 662 (D.C.
Cir. 1999) (the EPA typically has wide latitude in determining the
extent of data-gathering necessary to solve a problem. We generally
defer to an agency's decision to proceed on the basis of imperfect
scientific information, rather than to ``invest the resources to
conduct the perfect study.''). See also, Weyerhaeuser v. Costle, 590
F.2d 1011, 1058 (D.C. Cir. 1978) (``In the nature of things, no general
limit, individual permit, or even any upset provision can anticipate
all upset situations. After a certain point, the transgression of
regulatory limits caused by `uncontrollable acts of third parties,'
such as strikes, sabotage, operator intoxication or insanity, and a
variety of other eventualities, must be a matter for the administrative
exercise of case-by-case enforcement discretion, not for specification
in advance by regulation.''). In addition, the goal of a best
controlled or best performing source is to operate in such a way as to
avoid malfunctions of the source and accounting for malfunctions could
lead to standards that are significantly less stringent than levels
that are achieved by a well-performing non-malfunctioning source. The
EPA's approach to malfunctions is consistent with section 112 and is a
reasonable interpretation of the statute.
In the event that a source fails to comply with the applicable CAA
section 112(d) standards as a result of a malfunction event, the EPA
would determine an appropriate response based on, among other things,
the good faith efforts of the source to minimize emissions during
malfunction periods, including preventative and corrective actions, as
well as root cause analyses to ascertain and rectify excess emissions.
The EPA would also consider whether the source's failure to comply with
the CAA section 112(d) standard was, in fact, ``sudden, infrequent, not
reasonably preventable'' and was not instead ``caused in part by poor
maintenance or careless operation.'' 40 CFR 63.2 (definition of
malfunction).
Finally, the EPA recognizes that even equipment that is properly
designed and maintained can sometimes fail, and that such failure can
sometimes cause a violation of the relevant emission standard. (See,
e.g., State Implementation Plans: Policy Regarding Excessive Emissions
During Malfunctions, Startup, and Shutdown (September 20, 1999); Policy
on Excess Emissions During Startup, Shutdown, Maintenance, and
Malfunctions (February 15, 1983)).
The EPA is therefore adding to the final rule an affirmative
defense to civil penalties for violations of emission standards that
are caused by malfunctions, consistent with other recent actions by the
EPA (e.g., the NESHAP for Group I Polymers and Resins and the NESHAP
for Pharmaceuticals Production. 76 FR 22566 (April 21, 2011)). See 40
CFR 63.11502 (defining ``affirmative

[[Page 75745]]

defense'' to mean, in the context of an enforcement proceeding, a
response or defense put forward by a defendant, regarding which the
defendant has the burden of proof, and the merits of which are
independently and objectively evaluated in a judicial or administrative
proceeding). We also have added other regulatory provisions to specify
the elements that are necessary to establish this affirmative defense;
the source must prove by a preponderance of the evidence that it has
met all of the elements set forth in 40 CFR 63.11501(e). See 40 CFR
22.24. The criteria ensure that the affirmative defense is available
only where the event that causes a violation of the emission standard
meets the narrow definition of malfunction in 40 CFR 63.2 (sudden,
infrequent, not reasonable preventable and not caused by poor
maintenance and or careless operation). For example, to successfully
assert the affirmative defense, the source must prove by a
preponderance of the evidence that the violations ``[w]ere caused by a
sudden, infrequent, and unavoidable failure of air pollution control
and monitoring equipment, process equipment, or a process to operate in
a normal or usual manner* * *.'' The criteria also are designed to
ensure that steps are taken to correct the malfunction, to minimize
emissions in accordance with CAA section 63.11501(e), and to prevent
future malfunctions. For example, the source must prove by a
preponderance of the evidence that ``[r]epairs were made as
expeditiously as possible when a violation occurred* * *'' and that
``[a]ll possible steps were taken to minimize the impact of the
violation on ambient air quality, the environment and human health* *
*.'' In any judicial or administrative proceeding, the Administrator
may challenge the assertion of the affirmative defense, and, if the
respondent has not met its burden of proving all of the requirements in
the affirmative defense, appropriate penalties may be assessed in
accordance with section 113 of the CAA (see also 40 CFR 22.77).
The EPA included an affirmative defense in this final rule in an
attempt to balance a tension, inherent in many types of air regulation,
to ensure adequate compliance while simultaneously recognizing that
despite the most diligent of efforts, emission limits may be violated
under circumstances beyond the control of the source. The EPA must
establish emission standards that ``limit the quantity, rate, or
concentration of emissions of air pollutants on a continuous basis.''
42 U.S.C. 7602(k) (defining ``emission limitation and emission
standard''). See, generally, Sierra Club v. EPA, 551 F.3d 1019, 1021
(D.C. Cir. 2008). Thus, the EPA is required to ensure that section 112
emissions limitations are continuous. The affirmative defense for
malfunction events meets this requirement by ensuring that even where
there is a malfunction, the emission limitation is still enforceable
through injunctive relief. See generally, Luminant Generation Co. LLC
v. United States EPA, 2012 U.S. App. LEXIS 21223 (5th Cir. Oct. 12,
2012) (upholding EPA's approval of affirmative defense provisions in a
CAA State Implementation Plan). While ``continuous'' limitations, on
the one hand, are required, there is also case law indicating that, in
many situations, it is appropriate for the EPA to account for the
practical realities of technology. For example, in Essex Chemical v.
Ruckelshaus, 486 F.2d 427, 433 (D.C. Cir. 1973), the DC Circuit
acknowledged that, in setting standards under CAA section 111,
``variant provisions'' such as provisions allowing for upsets during
startup, shutdown and equipment malfunction ``appear necessary to
preserve the reasonableness of the standards as a whole and that the
record does not support the `never to be exceeded' standard currently
in force.'' See also, Portland Cement Association v. Ruckelshaus, 486
F.2d 375 (D.C. Cir. 1973). Though intervening case law such as Sierra
Club v. EPA and the CAA 1977 amendments call into question the
relevance of these cases today, they support the EPA's view that a
system that incorporates some level of flexibility is reasonable. The
affirmative defense simply provides for a defense to civil penalties
for violations that are proven to be beyond the control of the source.
By incorporating an affirmative defense, the EPA has formalized its
approach to upset events. In a Clean Water Act setting, the Ninth
Circuit required this type of formalized approach when regulating
``upsets beyond the control of the permit holder.'' Marathon Oil Co. v.
EPA, 564 F.2d 1253, 1272-73 (9th Cir. 1977). See also, Mont. Sulphur &
Chem. Co. v. EPA, 2012 U.S. App. LEXIS 1056 (January 19, 2012)
(rejecting industry argument that reliance on the affirmative defense
was not adequate). But see, Weyerhaeuser Co. v. Costle, 590 F.2d 1011,
1057-58 (D.C. Cir. 1978) (holding that an informal approach is
adequate). The affirmative defense provisions give the EPA the
flexibility to both ensure that its emission limitations are
``continuous'' as required by 42 U.S.C. 7602(k), and account for
unplanned upsets and thus support the reasonableness of the standard as
a whole.
In addition to the affirmative defense provisions described above,
we are also making several changes throughout the rule and in Table 9
(the table that specifies applicability of General Provisions to
subpart VVVVVV of 40 CFR part 63) to specify applicable requirements
during periods of startup and shutdown and periods of malfunction. For
example, we are adding new paragraphs in 40 CFR 63.11501(c)(1)(vii) and
(viii) that would require records of the occurrence and duration of
malfunctions, as well as records of actions taken to minimize emissions
during these periods and to fix malfunctioning equipment. We are also
adding a paragraph in 40 CFR 63.11501(d)(8) that would require
reporting of information related to each malfunction. Table 9 in the
final rule states that 63.6(e)(1)(i) does not apply to subpart VVVVVV.
We are also adding a new paragraph in 40 CFR 63.11495(d) that specifies
the general duty to minimize emissions applies at all times. In
addition to the changes in the text of the rule, we are revising the
entries for 40 CFR 63.6(e)(1)(i), 63.10(b)(2) and 63.10(d)(5) to
reference the new paragraphs in 40 CFR 63.11495(d), 63.11501(c) and
63.11501(d). Finally, we are revising Table 9 to state that the
performance testing requirements in 40 CFR 63.7(e)(1) do not apply. The
comments to Table 9 for that provision identify the location of the
applicable performance testing requirements for sources subject to the
CMAS rule.

H. Requirements for Metal HAP Process Vents

The revised final rule defines a ``metal HAP process vent'' to
include only those streams which contain at least 50 parts per million
by volume (ppmv) metal HAP. Process vents from CMPU that only contain
metal HAP in a liquid solution or other form that will not result in
particulate emissions of metal HAP (e.g., metal HAP that is in ingot,
paste, slurry or moist pellet form or other form) are not required to
comply with the metal HAP process vent requirements.

I. Extension of the Compliance Date

The EPA is extending the compliance date for existing sources until
March 21, 2013.

J. Technical Corrections

The final rule provides several technical corrections. These

[[Page 75746]]

amendments are being finalized to correct inaccuracies and oversights
that were previously promulgated. These changes are described in Table
2 of this preamble. Several of these issues were identified through the
public comments and the EPA identified others.

Table 2--Miscellaneous Technical Corrections to 40 CFR Part 63, Subpart
VVVVVV
------------------------------------------------------------------------
Description of
Section of subpart VVVVVV correction
------------------------------------------------------------------------
40 CFR 63.11494(a)(3)................................ We are finalizing
several changes
to this
paragraph.
First, we are
clarifying that
the 0.1-percent
and 1.0-percent
concentration
thresholds are
on a mass basis
of the
individual Table
1 HAP. Second,
we are
clarifying that
all Table 1 HAP,
except for
quinoline,
manganese, and
trivalent
chromium
compounds, are
considered
carcinogenic,
probably
carcinogenic or
possibly
carcinogenic.
Therefore, the
concentration
threshold of 1.0
weight percent
applies only to
quinoline,
manganese, and
trivalent
chromium
compounds, and
the threshold of
0.1 weight
percent applies
to all other
Table 1 HAP.
Third, we are
clarifying
applicability of
CMPU that
generate a Table
1 HAP byproduct.
If Table 1 HAP
are generated as
a byproduct, the
changes clarify
that the CMPU is
subject to the
rule if the
concentration of
the Table 1 HAP
in any liquid
stream in the
CMPU exceeds the
same thresholds
that apply to
feedstocks.
Specifically, if
quinoline is
generated as a
byproduct, then
the CMPU is
subject if the
quinoline
concentration in
any liquid
stream in the
CMPU exceeds 1.0
percent by
weight.
Similarly, if
hydrazine or any
other organic
Table 1 HAP is
generated as a
byproduct, then
the process is
subject if the
individual
concentration of
these compounds
in any liquid
stream is
greater than 0.1
percent by
weight. In
addition, we are
clarifying that
if hydrazine or
any other
organic Table 1
HAP is generated
as a byproduct,
then the process
is subject if
the individual
concentration of
these compounds
in any batch
process vent or
continuous
process vent is
greater than 0.1
percent by
weight. Finally,
we are
consolidating
paragraphs
(a)(1) and (3)
to eliminate
redundancy.
40 CFR 63.11494(c)(1)(vii)........................... We are adding a
new paragraph
that lists lead
oxide production
at lead acid
battery
manufacturing
facilities in
those operations
for which this
subpart does not
apply. These
sources are
covered by 40
CFR part 63,
subpart PPPPPP--
NESHAP for Lead
Acid Battery
Manufacturing
Area Sources.
40 CFR 63.11494(d)................................... We are clarifying
that a CMPU
using only Table
1 metal HAP is
not subject to
any requirements
for wastewater
systems or heat
exchange
systems. Only
organic HAP are
subject to
wastewater and
heat exchange
system
requirements.
40 CFR 63.11495(a)(3)................................ We are splitting
this section
into an
introductory
section with
five
subsections. One
sentence that
contains two
concepts has
also been split
into two
separate
sentences. The
requirements,
however, have
not changed.
40 CFR 63.11496(c)................................... We are adding an
example of
emission
contributions to
subtract when
determining the
TRE index value
of individual
streams before
they are
combined.
40 CFR 63.11496(d)................................... We are revising
the title of
this paragraph
and clarifying
that the mass
emission rate of
halogen atoms
must be
calculated in
accordance with
Sec.
63.115(d)(2)(v),
or alternatively
you may
designate an
emission stream
as halogenated.
40 CFR 63.11496(e)................................... We are adding a
new paragraph
that clarifies
that CEMS
requirements and
data reduction
requirements for
CEMS specified
in Sec.
63.2450(j)
apply.
40 CFR 63.11496(f)(3)(i)(C).......................... We are editing
this paragraph
to add the
acronym ``CMS.''
40 CFR 63.11496(f)(3)(ii)............................ We are editing
the first
sentence in this
paragraph to
remove the
unnecessary word
``report.''
40 CFR 63.11496(f)(3)(ii)............................ We are clarifying
that if a source
elects to
conduct an
engineering
assessment to
demonstrate
initial
compliance with
the standards
for metal HAP
process vents,
then the design
evaluation must
be conducted at
representative
operating
conditions for
the CMPU.
40 CFR 63.11494(g)(2)................................ We are clarifying
that you may
elect to conduct
a design
evaluation
instead of a
performance test
to determine
initial
compliance with
an outlet
concentration
emission limit.
40 CFR 63.11494(g)(4)(i)............................. We are clarifying
that you may
measure caustic
strength of the
scrubber
effluent for any
halogen scrubber
within a CMPU
subject to this
rule.
40 CFR 63.11494(g)(5)................................ We are clarifying
that 40 CFR
63.996(c)(2)(ii)
and
63.998(c)(1)(ii)
(E) do not apply
for the purposes
of this subpart.
40 CFR 63.11494(g)(8)................................ We are adding a
new paragraph
that clarifies
when the initial
demonstration
requirements for
process
condensers
applies.
40 CFR 63.11497...................................... We are adding a
paragraph to
this section
clarifying that
the halogenated
vent stream
provisions also
apply to
affected storage
tanks.
40 CFR 63.11498(a)(2), 63.11502(b), and Table 6...... We are adding a
definition of
``hazardous
waste
treatment'' in
40 CFR
63.11502(b) to
mean treatment
in either (1) a
RCRA-permitted
incinerator,
process heater,
boiler, or
underground
injection well,
or (2) an
incinerator,
process heater,
or boiler
complying with
40 CFR part 63,
subpart EEE. We
are also adding
corresponding
changes to Table
6 to subpart
VVVVVV.
Specifically,
for each
wastewater
stream, Item 1.a
would require
either
wastewater
treatment or
hazardous waste
treatment. In
addition, Item
2.b would be
edited to use
the new term
``hazardous
waste
treatment'' and
to allow for
hard piping of
wastewater
streams to a
point of
transfer to
onsite hazardous
waste treatment.
The changes to
Item 1.a also
make it clear
that the
treatment
conducted to
meet Item 2.b
would satisfy
the requirements
of Item 1.a.
40 CFR 63.11500(a) and Table 5....................... We are adding a
paragraph to 40
CFR 63.11500(a)
to clarify that
that offsite
reloading and
cleaning
facilities that
are subject to
40 CFR 1253(f)
and comply with
the monitoring,
recordkeeping,
and reporting
requirements in
any other
subpart of part
63 are
considered to be
in compliance
with the
monitoring,
recordkeeping,
and reporting
requirements of
40 CFR
63.1253(f)(7)(ii
) or (iii). We
are also adding
corresponding
changes to Table
5 to subpart
VVVVVV to
clarify which
requirements
apply to owners
or operators of
offsite cleaning
or reloading
facilities.
40 CFR 63.11501(b)................................... We are revising
this paragraph
to allow sources
to submit their
notice of
compliance
status (NOCS)
reports no later
than 60 days
after the
applicable
compliance date.
40 CFR 63.11501(c)(4)(i)............................. We are replacing
the incorrect
word
``dimension''
with the correct
word
``dimensions.''

[[Page 75747]]

40 CFR 63.11502(a)................................... We are inserting
references to
the definitions
of the terms
``batch
operation,''
``continuous
operation,'' and
``isolated
intermediate''
in 40 CFR
63.2550 of the
MON. We are also
inserting a
reference to the
definition of
``control
device'' in 40
CFR 63.111 of
the Hazardous
Organic Chemical
Manufacturing
NESHAP (HON).
40 CFR 63.11502(b)................................... We are modifying
the definition
of ``batch
process vent''
to clarify that
vents from batch
operations are
considered to be
batch process
vents.
40 CFR 63.11502(b)................................... We are adding a
definition for
the term
``engineering
assessment''
consistent with
40 CFR
63.1257(d)(2)(ii
), but which has
been revised to
include the
appropriate
references for
this rule.
40 CFR 63.11502(b)................................... We are adding a
definition for
the term ``point
of
determination''
consistent with
40 CFR 63.111 of
the HON, but
which has been
revised to
include the
appropriate
references for
this rule.
40 CFR 63.11502(b)................................... We are modifying
the definition
of ``product''
to remove
``isolated
intermediates''
from the list of
materials that
are not
considered
products.
40 CFR 63.11502(b)................................... We are adding a
definition for
the term
``uncontrolled
emissions'' that
reads:
``Uncontrolled
emissions means
organic HAP or
metal HAP
process vent
emissions, as
applicable, at
the outlet of
the last
recovery device,
if any, and
prior to any
control device.
In the absence
of both recovery
devices and
control devices,
uncontrolled
emissions are
the emissions
discharged to
the
atmosphere.''
Table 3.............................................. We are replacing
the reference to
40 CFR
63.982(c)(2) in
item 1.a with
the correct
reference to 40
CFR 63.982(c).
Table 3.............................................. We are adding an
item to this
table for
continuous
process vents
with a TRE >1.0
but <=4.0. This
item clarifies
that these
continuous
process vents
are required to
comply with 40
CFR 63.982(e) if
a recovery
device is used
to maintain a
TRE >1.0 but
<=4.0.
Table 5.............................................. We are replacing
the reference to
40 CFR
63.982(c)(1) in
item 1.b with
the correct
reference to 40
CFR 63.982(c).
We are also
removing the
requirement in
item 1.b.ii to
comply with the
inspection
requirements in
40 CFR 63.11495
for closed vent
systems.
Table 8.............................................. We are revising
item 1.a.i to
clarify that the
reference to
monthly
monitoring for
the first 6
months in 40 CFR
63.104(b)(1)
does not apply.
Table 9.............................................. We are revising
the entry to 40
CFR 63.8(c)(4)
to state that
this paragraph
does apply, but
only for CEMS.
The requirements
for CPMS are
contained in 40
CFR part 63,
subpart SS, and
requirements for
COMS do not
apply.
Table 9.............................................. We are revising
the entry for 40
CFR 63.8(g)(5)
to clarify that
the data
reduction
requirements for
CEMS are
specified in 40
CFR 63.2450(j)
and that CPMS
requirements are
specified in 40
CFR part 63,
subpart SS.
Table 9.............................................. We are adding an
entry for 40 CFR
63.9(i) to state
that this
paragraph
applies to
subpart VVVVVV.
------------------------------------------------------------------------

IV. Summary of Major Changes Since Proposal

The EPA received 19 public comment letters on the proposed
revisions to the CMAS final rule. In addition, the EPA received six
comments and sets of materials from industry representatives following
the close of the comment period. After consideration of these comments,
the EPA is making several changes to the final rule. Following are the
major changes to the standards since the proposal. The rationale for
these and other significant changes can be found in this section, in
section V of this preamble, and in the National Emission Standards for
Hazardous Air Pollutant Emissions for Chemical Manufacturing Area
Source--Reconsideration: Summary of Public Comments and Responses, in
the CMAS rule docket (EPA-HQ-OAR-2008-0334).

A. Title V Permitting Requirements

In the proposed rule revisions, we proposed to narrow the
applicability of title V permitting requirements for certain synthetic
area sources subject to the final rule. Specifically, under the
proposal, only those sources that installed a federally-enforceable
control device on an affected CMPU in order to become an area source
would be subject to the requirement to obtain a title V permit. The EPA
received public comments on this issue from industry representatives
and two states during the public comment period. Public commenters were
generally opposed to the EPA requiring any affected source to obtain a
title V permit. The commenters were concerned that the burden of
obtaining a title V permit was not warranted given the level of public
participation already required by, and other requirements associated
with, a Federally Enforceable State Operating Permit (FESOP) that
sources with a federally-enforceable control device must already
obtain. However, commenters stated that if the EPA should choose to
require certain sources to obtain a title V permit, then they supported
limiting the requirement to apply to only those sources that installed
a federally-enforceable control device on an affected CMPU.
As a preliminary matter, we note that section 502(a) of the CAA
requires all area sources subject to CAA section 112 standards to
obtain a title V permit unless the EPA makes a finding that title V is
impracticable, infeasible or unnecessarily burdensome. The EPA did not
exempt CMAS synthetic area sources that installed controls to limit HAP
emissions because we believe that the limited burden resulting from the
applicability of title V to these area sources is outweighed by the
benefits of the title V permit. The EPA also continues to maintain that
``while there is some burden on the affected facilities, we think that
the burden is not significant because these facilities are generally
larger and more sophisticated than the natural area sources and sources
that took operational limits to become area sources.'' 74 FR 56014.
In the final rule revisions, we have made slight revisions to the
proposed changes to the title V permit requirement to further clarify
the applicability of title V to CMAS sources. Specifically, we have
revised the rule to make clear that the installation of a federally-
enforceable air pollution control device on an affected CMPU triggers
the title V permit requirement for any synthetic area source subject to
the final rule if the air pollution controls installed on the affected
CMPU are required to maintain the source's emissions at area source
levels. The EPA continues to believe that the additional protections
provided by a title V permit

[[Page 75748]]

are warranted for CMAS synthetic area sources that installed controls
because they are generally larger, more sophisticated and have higher
HAP emissions before control than natural area sources and synthetic
area sources that took operational limits. See 74 FR 56013-56014,
56034-56039 (October 29, 2009); 77 FR 4525-4527 (January 30, 2012).
If a synthetic area source is subject to the CMAS rule and it has
installed a federally-enforceable control device on an affected CMPU in
order to become an area source, it is subject to title V and it must
obtain a permit. Under 40 CFR 70.3(c)(2), for any non-major source
subject to title V, the permitting authority must include in the permit
all applicable requirements that apply to emissions units (i.e., the
CMPU) that trigger applicability of title V. 40 CFR 70.3(c)(2); see
also 40 CFR 70.2 (defining ``applicable requirement''). Thus, the state
title V permitting authority may require a source subject to title V
pursuant to the CMAS rule to include in the title V permit only the
applicable requirements that apply to the CMPU(s) that cause the source
to be subject to title V.
Additionally, based on the comments submitted by industry, we
appreciate industry's concern that, due to the nature of chemical
manufacturing, specifically specialty and batch chemical manufacturing,
the industry needs operational flexibility and that some types of
operational changes involving the affected CMPU could be subject to
frequent title V revisions. There are several flexible permitting
techniques available to sources through the title V permitting program,
such as Alternative Operating Scenarios and Approved Replicable
Methodologies. See 74 FR 51418 (October 6, 2009). We therefore
encourage sources to consider the viability of establishing flexibility
upfront in their respective title V permits as a way to avoid permit
revisions, without sacrificing compliance assurance or operational
flexibility.

B. Requirement for Covers or Lids on Process Vessels

In the proposed rule revisions, we requested comment on whether a
change was needed for the definition of ``in metal HAP service'' to
make it consistent with the proposed revisions to the definition of
``in organic HAP service.'' Public commenters were generally in favor
of these proposed revisions.
In the final rule revisions, we have revised the definition of ``in
metal HAP service'' to state that, consistent with the revised
definition of ``in organic HAP service,'' a process vessel is no longer
in metal HAP service after the vessel has been emptied to the extent
practicable (i.e., a vessel with liquid left on process vessel walls or
as bottom clingage, but not in pools, due to floor irregularity, is
considered completely empty) and any cleaning has been completed. We
have also revised the requirement that a cover or lid must be in place
and closed at all times when a process vessel is in organic HAP service
or in metal HAP service to not apply for CMPU using only metal HAP that
are in a liquid solution or other form that the source determines will
not result in particulate emissions of metal HAP (e.g., metal HAP that
is in ingot, paste, slurry or moist pellet form or other form).

C. Requirement To Conduct Leak Inspections When Equipment Is in HAP
Service

We solicited comment on whether to permit leak inspections to be
conducted when equipment was in VOC service, rather than just when it
was in organic HAP service or in metal HAP service. Public commenters
were generally in favor of allowing leak inspections to be conducted
while equipment was in VOC service.
In the final rule revisions, we are allowing facilities to conduct
leak inspections of equipment in VOC service, provided that leaks can
be detected while in VOC service. A CMPU that contains metal HAP as
particulate must conduct leak inspections while the equipment is in
metal HAP service. We have also added a corresponding definition of
``in VOC service'' to mean that a process vessel or piece of equipment
either contains or contacts a fluid that contains VOC.

D. Requirements for Metal HAP Process Vents

In the proposed rule revisions, we solicited comment on whether the
definition of ``metal HAP process vent'' was applicable to all types of
equipment from which metal HAP are emitted. The original rule defined a
metal HAP process vent as ``the point of discharge to the atmosphere
(or inlet to a control device, if any) of a metal HAP-containing gas
stream from any CMPU at an affected source,'' regardless of the
concentration of metal HAP in the stream. Public commenters were
generally in favor of defining a metal HAP process vent as containing
at least 50 ppmv metal HAP, consistent with the MON.
In the final rule revisions, we have revised the definition of
``metal HAP process vent'' to include only those streams which contain
at least 50 ppmv metal HAP. We have also revised the final rule to
state that process vents from CMPU that only contain metal HAP in a
liquid solution or other form that will not result in particulate
emissions of metal HAP (e.g., metal HAP that is in ingot, paste, slurry
or moist pellet form or other form) are not required to comply with the
metal HAP process vent requirements.

E. Extension of the Compliance Date

In the proposed rule revisions, we did not propose to revise the
compliance date for the final rule, which was October 29, 2012. Under
CAA section 112, the compliance date may be no more than 3 years after
the effective date of the final rule, which for the CMAS rule was
October 29, 2009. Public commenters were concerned that due to the
expected short period of time between the promulgation of the final
rule amendments and the existing October 29, 2012, compliance date,
there would not be sufficient time for facilities to review the revised
rule requirements and certify compliance by the compliance date. The
commenters were particularly concerned with determining compliance
because the proposed changes to the family of materials concept may
affect applicability of the final standards to CMPU located at sources
subject to the CMAS rule. It was the EPA's expectation that the
reconsideration would be finalized in advance of October 29, 2012,
compliance date. However, the EPA was still in the process of
finalizing the reconsideration action, and on October 25, 2012, the EPA
published a 60-day stay of the final CMAS rule (77 FR 65135).
In the final rule, the EPA is extending the compliance date for
existing sources until March 21, 2013. We agree that existing sources
should have additional time to evaluate applicability in light of the
amendments to the rule since publication of the final reconsideration
action is occurring so close to the existing source compliance date. We
think this short extension will provide sources the necessary time to
determine applicability and take the actions necessary to comply with
the final rule. The EPA is not revising the compliance date for new
sources.

F. Technical Corrections

In the proposed rule revisions, we proposed in 40 CFR
63.11494(a)(3) a technical correction that the concentration thresholds
for applicability of Table 1 HAP present in feedstocks or any liquid
streams (process or waste) were to be

[[Page 75749]]

determined on a collective Table 1 HAP basis. In addition, we also
proposed to specify that a CMPU is subject to the CMAS rule if the
collective concentration of Table 1 HAP exceeded 50 ppmv in any process
vent stream. Public commenters were concerned that by revising the rule
to determine applicability based on collective Table 1 HAP
concentration and a 50 ppmv threshold, the applicability of the rule
would be greatly expanded beyond its original scope.
In the final rule revisions, we have revised this language to
clarify that the concentration thresholds for applicability of Table 1
HAP are to be determined on an individual Table 1 HAP concentration,
rather than a collective concentration. In addition, we have also
clarified that the 0.1 percent by weight threshold for Table 1 HAP
present in liquid streams (process or waste) also applies to Table 1
HAP present in any continuous process or batch process vent, rather
than the proposed 50 ppmv threshold.
We are not finalizing this proposed change because we did not fully
consider the implications of the proposed change. We included the
proposed change in the technical corrections section of the proposed
rule on the belief that it was a technical change, but, in fact, the
change, if finalized, would have had significant consequences. The
proposed change would have likely lead to a considerable expansion of
the applicability of the rule. In addition, sources would no longer
have been able to determine applicability by reviewing their Material
Safety Data Sheets (MSDS) as the 2009 final rule provides because the
MSDS does not indicate the amount of emissions below the 0.1 percent
threshold. This would mean that sources would have to go to
considerable lengths at considerable cost in testing very low levels of
HAP to even determine whether the final rule applies to their CMPUs,
which is not what the EPA intended.

V. Summary of Comments and Responses

This section contains a summary of major comments and responses and
rationale for changes made to the proposed rule. The EPA received many
comments covering numerous topics. The EPA's responses to those
comments can be found either in this preamble or in the National
Emission Standards for Hazardous Air Pollutant Emissions for Chemical
Manufacturing Area Source--Reconsideration: Summary of Public Comments
and Responses, in the CMAS rule docket (EPA-HQ-OAR-2008-0334).

A. Title V Permitting Requirements

Comment: Eight commenters objected to the requirement that certain
synthetic area sources subject to the CMAS rule be required to obtain a
title V permit. The commenters stated that the requirement would be
overly burdensome and that it would impose significant additional costs
on facilities while achieving no additional environmental benefit or
gains in compliance. The commenters estimate that it will cost a
facility $25,000-$100,000 to obtain a title V permit.
In contrast, one commenter stated that the cost of obtaining a
title V permit instead of a synthetic area source permit in their area
is comparable due to associated permit fees for synthetic area source
permits and emission fees for title V permits.
Response: The EPA disagrees with the commenters that the
requirement to obtain a title V permit is overly burdensome and we
maintain that title V is appropriate for the sources that will be
subject to title V pursuant to this final rule. In the preamble to the
final rule, we determined that ``requiring additional public
involvement and compliance assurance requirements through title V is
important to ensure that these sources are maintaining their emissions
at the area source level, and, while there is some burden on the
affected facilities, we think that the burden is not significant
because these facilities are generally larger and more sophisticated
than the natural area sources and sources that took operational limits
to become area sources.'' 74 FR 56014. The cost estimates provided by
the commenters are very broad and the commenters do not provide any
information to support the cost estimates that were provided;
therefore, the EPA is unable to evaluate the validity of these
estimates.
Comment: Three commenters expressed concern with the impacts that
the title V program requirements might impose on a source subject to
the CMAS rule. In particular, they expressed concern with the ability
of batch operations that have the need for quick changes to their
production processes to be able to make such changes rapidly and with
the necessary permitting flexibility. The commenters stated that by
requiring a title V permit, the facility will be required to apply for
a permit modification every time they wanted to manufacture a new
product, costing them both time and money and placing them at a
competitive disadvantage.
Response: We appreciate that the commenters want to maintain
operational flexibility, but title V permits can and do accommodate
provisions that provide operational flexibility for batch processing
(and other) operations. In fact, permitting authorities have been
incorporating operational flexibility for batch processes into title V
permits through a variety of mechanisms provided under existing rules.
These flexibilities have eliminated the need to modify permits when new
products are manufactured. For example, since 2003, a number of
specialty chemical manufacturers, who use batch processing, are subject
to title V permitting under the Miscellaneous Organic NESHAP (MON). To
accommodate the need for frequent operational changes at these
facilities, states have issued flexible operating permits that provide
these sources with the ability to obtain approval in advance for a
variety of alternative operating scenarios, categories of changes,
plant-wide applicability limits, or other operating flexibilities that
enable them to operate in the most effective way while still complying
with the requirements of the title V program. As the CMAS rule notes,
batch CMAS sources, like MON sources, can take advantage of similar
flexibilities and set their continuous monitoring parameters based on
their projected range of batch scenarios.
This type of flexibility has been effectively incorporated into
title V permits to sources in the semiconductor industry for many
years. Just like the specialty chemical manufacturing industry, the
semiconductor industry operates in a rapidly changing environment,
requiring flexibility to make quick changes without the need to go
through permit modifications. Through the use of advance approvals and
flexible permits, companies such as Intel have been able to operate in
a quickly changing environment while complying with the requirements of
the title V program. Intel currently introduces a new generation of
semiconductor chips every 12 to 24 months, with each new product cycle
supported by a major facility revamp. These operational changes are
time sensitive to meet product release schedules from computer and
electronics manufacturers and involve highly interdependent and
sequenced steps. Intel also reported a need to make rapid (and
sometimes iterative) process and equipment adjustments in production
processes to improve yield, lower costs, reduce chemical usage, and
otherwise improve operations. The

[[Page 75750]]

advance approved changes in Intel's flexible permit likely saved the
plant hundreds of business days associated with making operational and
process changes to ramp up production for new products, respond to
market demands, and optimize production processes. Industry estimates
of the opportunity costs of production downtime and time delays run as
high as several million dollars in just a few days due to lost sales to
computer makers and other factors. The estimated 150 to 200 changes per
year, combined with the otherwise normally expected approval time frame
of up to 60 days per change, indicate that there would likely have been
significant delay under a conventional permitting approach. Intel has
in the past cited its flexible air permit as a vital element enabling
Intel to double employment during the permit term and to transfer and
scale-up production of next generation computer chips at plants
throughout the U.S., retaining and creating thousands of additional
jobs.
The EPA is willing to work with companies and state permitting
authorities to ensure they are aware of the flexibilities already
available under the title V permitting program that address the
concerns of the small number of CMAS synthetic area sources that must
obtain a title V permit.
Comment: Four commenters stated that the process for obtaining a
synthetic area source permit and the amount of information contained in
it are very similar to those of a title V permit. Three of the
commenters detailed the steps involved in obtaining each type of
permit, as well as the information contained in each. The commenters
also stated that both processes provide opportunity for public comment
on the draft permit and that the facilities may be required to certify
compliance annually. One of the commenters also provided general
information on FESOPs and synthetic area source permits issued in
Illinois and Ohio. Another commenter also provided general information
on FESOP and synthetic area source permits for 11 states, including
whether notice and comment is required and what additional oversight is
conducted by the state. One commenter noted that FESOP programs must be
approved through State Implementation Programs, which provide an
opportunity for both the EPA and public comment. Another commenter
stated that under the North Carolina Division of Air Quality's air
permitting program, synthetic area sources are already subject to
annual inspections similar to what title V requires. The commenter also
stated that sources that have add-on controls typically have lower
emissions than sources that have taken operational limits to become
synthetic area sources.
Response: While the commenters provided broad, general information
on the requirements of FESOPs as compared to title V permits, none of
them provided specific examples of these permits for the EPA to
evaluate and compare to title V permits. Without this specific
information from each state (as the requirements for a FESOP vary by
state), the EPA cannot conclude that FESOPs provide the same level of
information as that of a title V permit. In addition, unlike FESOP
programs, petitions to object to title V permits may be brought before
the EPA. As the requirements for public participation for a FESOP vary
by state, the EPA cannot be assured that all citizens in all states
would be afforded the same level of public participation that a title V
permit would provide.
In addition, title V requires a facility to include in the title V
permit all applicable requirements that apply to CMAS affected units,
not just the CMPU requirements that trigger applicability of title V,
so that the public will be able to assess a source's compliance with
all requirements that apply to CMAS affected units by reviewing the
title V permit. The public is provided access to compliance
demonstration information submitted to state permitting authorities and
there is no indication in the comments that such information is
available pursuant to state FESOP programs.
Furthermore, even though certain states, such as North Carolina,
may require that a synthetic area source be subject to additional
inspections, this requirement varies by state and only a title V permit
would assure that these additional inspections are required for all
CMAS synthetic area sources required to obtain a title V permit.
Finally, we do not agree with the assertion that sources that install
control devices necessarily have lower emissions than those that have
taken operational limits to maintain area source status, as both types
of synthetic area sources are subject to the same requirement to
maintain emissions below 10 tpy of any single HAP or 25 tpy of any
combination of HAP. It is the potential level of emissions from the
synthetic area source absent controls or operational limits that we
considered when comparing the two types of synthetic area sources. In
the 2009 final rule and the reconsideration proposed rule revisions, we
noted that one reason why we were not exempting synthetic area sources
that installed controls from title V is because we believe the sources
are ``generally larger and more sophisticated'' than natural area
sources and the synthetic area sources that took operational limits.
See 77 FR 4525; 74 FR 56014. We also stated that we believe the
uncontrolled HAP emissions from synthetic area sources that installed
controls are generally much higher than the natural area sources and
synthetic area sources that took operational limits. Id. The commenters
did not provide any information that causes us to question our
conclusions.
Comment: Four commenters stated that requiring synthetic area
sources that installed control devices to obtain a title V permit would
create a disincentive for facilities to maintain their synthetic area
source status by either voluntarily reducing their emissions or
installing add-on controls in lieu of taking production limits, which
would have a negative impact on air quality.
Response: The EPA disagrees that requiring title V permits would
discourage facilities from maintaining their synthetic area source
status, as facilities would in most, if not all, cases be subject to
existing NESHAP applicable to chemical manufacturing major sources if
they did not maintain synthetic area source status. For example, these
sources would likely be subject to the HON or the MON, both of which
require more frequent inspections and more stringent control of
emissions. The EPA believes that avoiding these additional requirements
would still provide incentive for facilities to maintain their
synthetic area source status. In addition, all major sources of HAP
subject to NESHAP are required to obtain a title V permit so the
sources would still be required to comply with title V.
Comment: One commenter stated that it is punitive to require title
V permits for sources that have already made a capital investment to
achieve area source status and avoid title V permits in the past. The
commenter stated that the EPA is ignoring the environmental benefit
associated with the installation of federally-enforceable control
devices by focusing on the uncontrolled potential of these sources.
Response: Pursuant to section 502(a) of the CAA, all area sources
subject to CAA section 112 standards are required to obtain a title V
permit unless the EPA makes a finding that title V is impracticable,
infeasible or unnecessarily burdensome. Thus, there is no basis to
support the statement that title V is punitive in nature and the EPA
disagrees that requiring title V permits for synthetic area sources
that installed

[[Page 75751]]

control devices is punitive. Furthermore, we are not ignoring the
environmental benefit of controlling HAP emissions by requiring title V
for certain CMAS sources.
In most, if not all, cases, synthetic area sources that installed
controls would be subject to existing NESHAP applicable to major
sources if they did not take synthetic area source limits and those
standards are set at the maximum achievable control technology (MACT)
level. Since MACT standards are technology based standards established
based on the performance of the best performing source(s), it is likely
the commenter would have had to achieve a comparable level of emissions
reductions even if they had not taken the synthetic area source limit.
While the EPA appreciates the environmental benefit attained by
facilities that have installed these control devices to become area
sources, we still believe that title V permitting is appropriate to,
among other things, ensure: that synthetic area sources that installed
controls are maintaining their emissions at the permitted level; that
the public is able to review and evaluate the source's permit and
compliance; that there is adequate monitoring, recordkeeping and
reporting; and that the source's management is required to certify
compliance with the CAA requirements applicable to the source.
Comment: Three commenters stated that if the EPA should choose to
finalize the title V permit requirement, they supported the decision to
limit this requirement to only facilities that have installed controls
on an affected CMPU subject to the CMAS rule.
Response: The EPA has finalized revisions to the title V permit
requirement; however, the EPA has made some revisions to the title V
permit requirement to further clarify the applicability of title V to
CMAS sources. The final rule only requires title V permits for
facilities that have installed a federally-enforceable control device
on at least one affected CMPU and the air pollution control device is
required to maintain the source's emissions at area source levels.
Comment: One commenter expressed concern that while the language of
the original final rule made it clear that their facility was exempted
from the title V requirement, the proposed revisions made it ambiguous
as to whether the facility would be required to obtain a title V
permit. The commenter believed that the revised provisions for
obtaining a title V permit would no longer exclude sources that were
never a major source, and could instead be interpreted to mean that any
synthetic area source, regardless of whether it was previously major or
area, that installed a federally-enforceable control device on an
affected CMPU would be subject to the title V permit requirement. The
commenter requested that this requirement only apply to sources that
became a synthetic area source as a direct result of installing the
federally-enforceable control device.
Response: In response to comments on the proposed rule, the EPA has
revised the final rule language to clarify the scope of the title V
permit requirement. Specifically, the final rule requires a title V
permit for any synthetic area source subject to the CMAS rule that
would be a major source but for the installation of a federally-
enforceable control device on at least one affected CMPU. The final
title V requirement language affords no consideration to the purpose of
the installed control device, other than it being necessary to maintain
the source's emissions at area source levels, or the timing of the
installation of the control device.

B. Requirements When Other Rules Overlap With the Final Rule

Comment: One commenter stated that it is not always clear what the
most stringent provisions are when looking at overlapping provisions.
The commenter requested that the EPA revise the rule to require
facilities to make their best determination of stringency and submit to
the appropriate agency for review and comment. The commenter also
requested that states should be allowed to make streamlined
determinations on stringency on an overall program stringency basis
rather than individual rule provisions of overlapping rules.
Response: The EPA disagrees with the commenter that it is necessary
to revise the final rule to allow for facilities to submit their
stringency determinations for review and comment to their permitting
authority. As the requirements of this section are entirely optional,
we do not believe it to be appropriate to place additional burden on
the local permitting authorities to make the determination of what the
most stringent provisions are. Instead, we believe that this
responsibility should continue to be placed on the facility. For those
sources that are unable to determine the more stringent requirements,
we continue to believe that it is more appropriate to evaluate requests
for clarification on a case-by-case basis.
In addition, we also believe that it would be inappropriate for us
to make a determination of equivalency among the numerous state
streamlined programs with the requirements of the CMAS rule. As noted
in the preamble to the proposed rule revisions, ``[w]e did not include
language that defines the more stringent requirements, as found in
other rules, due to the great variety in characteristics of CMAS
processes and the wide variety of compliance options in both the CMAS
rule and overlapping rules. This variety makes it difficult to develop
language that would not inadvertently allow a CMAS facility to comply
with requirements less stringent than those contained in 40 CFR part
63, subpart VVVVVV, or less stringent than the required control level
in an overlapping rule.'' (77 FR 4528). For these reasons, we are not
revising these provisions in the final rule.

C. Requirement To Conduct Direct and Proximal Leak Inspections

Comment: Four commenters supported the proposed revisions to remove
the requirement to conduct ``direct and proximal'' leak inspections and
stated that the proposed sight, sound or smell inspections are
appropriate.
Response: The EPA has finalized the proposed revisions to the leak
detection requirements.

D. Requirement for Covers or Lids on Process Vessels

Comment: Three commenters requested that the EPA clarify that for
metal HAP precipitate, or metal HAP in solution, the requirement to
install a cover or lid on process vessels in metal HAP service does not
apply. The commenters cited the low potential for emissions from these
low vapor pressure metal HAP solutions as rationale for not imposing
this requirement on such units. One commenter estimated that without
this change, their facility would have to invest over $1,000,000 in
covers/lids for their clarifiers, which are used to gravity-separate
solids from solution and have very low potential for emissions. One
commenter cited 40 CFR part 63, subpart CCCCCCC as an example of an
area source rule that does not require this for metal HAP in solution.
The commenter also provided examples of regulatory text that could be
used in the CMAS rule.
Response: The EPA agrees with the commenters that the requirement
to install a cover or lid for process vessels in metal HAP service is
unnecessary for metal HAP in solution. As there is very little or no
potential for air emissions to occur from these solutions, the rule
need not require the process vessel to be covered. As such, we have
revised the final rule to state that process vessels

[[Page 75752]]

that only contain metal HAP in a liquid solution or other form that
will not result in particulate emissions of metal HAP (e.g., metal HAP
that is in ingot, paste, slurry or moist pellet form or other form) are
not required to comply with the cover/lid requirement.

E. Requirement To Conduct Leak Inspections When Equipment Is in HAP
Service

Comment: Three commenters suggested that leak inspections should be
permitted to be conducted when equipment is in non-HAP (i.e., VOC)
service. Two commenters cited the limited personnel available to
conduct leak inspections and the limited time windows for when
equipment is in HAP service and inspections may be conducted as
rationale.
One commenter noted that there is little difference between
detecting leaks for streams in VOC vs. HAP service, as many HAP and
non-HAP solvents have similar vapor and odor thresholds and both can be
detected adequately by sight, sound or smell. The commenter also stated
that since the MON allows for sources to assume that equipment is in
HAP service, then the CMAS rule should permit it as well.
Response: The EPA agrees with the commenters that conducting leak
inspections when equipment is in VOC service is acceptable for the
reasons described above, and has revised the final rule to reflect this
option, provided that leaks can be detected while in VOC service. As it
may be very difficult for some facilities to conduct their inspections
while equipment is in HAP service due to the limited amount of time
and/or personnel available, this alternative will provide facilities
with flexibility in conducting inspections while maintaining the same
level of emissions reductions. This option does not apply to CMPU that
contain metal HAP as particulate. For those units, the inspections must
be conducted while the unit is in metal HAP service.

F. Applicability of the Family of Materials Concept

Comment: Two commenters supported the proposed revisions to the
definition of ``family of materials.''
Response: The EPA has finalized the proposed revisions to this
definition.

G. Requirements for Metal HAP Process Vents

Comment: Two commenters stated that the definition of metal HAP
process vent should be revised to better reflect GACT for these
emission points. The commenters state that in sulfuric acid
regeneration units (SARUs), metal HAP are already controlled to >95
percent within the process itself and that it would be unreasonable to
require an additional 95 percent control for metal HAP vents. The
commenters recommend that a metal HAP process vent be defined as
containing at least 50 ppmv metal HAP (similar to the batch and
continuous process vents definitions), or that all vents from SARUs be
excluded.
Response: The EPA agrees with the commenters that a metal HAP
process vent should be defined as containing at least 50 ppmv metal
HAP, consistent with the definitions of batch and continuous process
vents. In reviewing other rules that regulate the chemical sector
(e.g., the MON) and define a process vent as containing at least 50
ppmv, the EPA found that it applied to process vents containing any
HAP, not just organic HAP. As such, the EPA has revised the final rule
to define a metal HAP process vent as containing at least 50 ppmv metal
HAP.
Comment: One commenter requested that the EPA exempt process vents
from CMPU using metal HAP in solution from the requirements for metal
HAP process vents. The commenter cites the low potential for emissions
from these low vapor pressure metal HAP solutions as rationale for
exempting them. One commenter cited 40 CFR part 63, subpart CCCCCCC as
an example of an area source rule that exempts metal HAP in solution.
The commenter also provided examples of regulatory text that could be
used in the CMAS rule.
Response: The EPA agrees with the commenter that it is not
necessary to subject process vents from CMPU using metal HAP in
solution to the requirements for metal HAP process vents. As the CMAS
rule requires that CMPU process vents with total metal HAP emissions of
less than 400 pounds/year (lb/yr) maintain records demonstrating that
total metal HAP emissions are less than 400 lb/yr, and it is unlikely
that process vents from CMPU handling only metal HAP in solution would
ever exceed this value due to the little or no potential for air
emissions to occur, this requirement results in an unnecessary
recordkeeping burden for the facility. As such, we have revised the
final rule to state that process vents from CMPU that only contain
metal HAP in a liquid solution or other form that will not result in
particulate emissions of metal HAP (e.g., metal HAP that is in ingot,
paste, slurry or moist pellet form or other form) are not required to
comply with the metal HAP process vent requirements.

H. Compliance Date

Comment: Four commenters requested that the EPA extend the
compliance date for a period of time ranging from 18 months to 3 years.
The commenters all stated that the potential expansion of the
applicability of the final rule would require additional time for
sources to re-evaluate whether they would be subject to the rule. One
commenter also cited the uncertainty surrounding the family of
materials concept as finalized in the original rule and the fact that
the EPA did not address the de minimis threshold issue that the
Petitioners raised in their petition for reconsideration as reasons for
extending the compliance date. The commenters stated that the EPA has
the legal authority to extend the compliance date, citing the
circumstances under which the EPA did so in the Boiler MACT
reconsideration.
Response: The EPA agrees that a short extension of the compliance
date is warranted for existing sources, not an extension of 18 months
to 3 years. Given the amount of uncertainty regarding the applicability
of the family of materials concept in the 2009 final rule, the EPA
believes that with the revised definition of ``family of materials'' in
these amendments, sources will need the short extension to evaluate
applicability and determine the appropriate compliance approach. As
such, the EPA believes it is reasonable to provide some additional
period of time for facilities to review the revised final rule and
determine which CMPU are subject to the requirements.

I. Technical Corrections

Comment: Six commenters objected to the proposed revision to base
CMPU applicability on a collective 0.1 percent by weight (for
carcinogens) or 1.0 percent by weight (for non-carcinogens)
concentration, rather than an individual compound concentration. The
commenters stated that this proposed change goes beyond being a
``technical correction'' as described in the proposal preamble, as it
would significantly expand the scope of the rule and increase the
compliance burden for facilities.
Two commenters stated that going to a collective HAP concentration
would be inconsistent with the Toxics Release Inventory and the
Occupational Safety and Health Administration Hazard Communication
rules upon which the 0.1 percent and 1.0 percent thresholds were based
and would be inconsistent with the definition of ``product'' in the
CMAS rule.

[[Page 75753]]

Three commenters also noted that by having to use the collective
concentration, facilities would no longer be able to use MSDS to
determine applicability because MSDS are not provided for compounds at
concentrations below 0.1 percent.
Response: The EPA agrees with the commenters that it is not
appropriate to use a collective HAP concentration in determining
applicability. It was not the EPA's intent to expand the applicability
of the CMAS rule, but rather to clarify when it applied. As explained
above and in section IV.F of this preamble, the commenters brought up
numerous issues that the EPA had not considered when proposing this
revision that would make determining applicability and complying with
the rule extremely difficult. The expansion of the applicability was
inadvertent and the final rule has not been revised as proposed.
Comment: Five commenters objected to the proposed revision to
determine CMPU applicability based on a collective 50 ppmv
concentration. The commenters state that, similar to the proposed
revision to the 0.1/1.0 percent thresholds, this revision would
significantly expand the scope of the rule, as 50 ppmv is a much lower
concentration than the 0.1/1.0 percent concentration thresholds that
had already been established. Additionally, the commenters stated that
facilities would no longer be able to rely upon MSDS for determining
applicability and the revision goes beyond being a ``technical
correction'' as described in the proposal preamble.
Response: The EPA agrees with the commenters that it is not
appropriate to establish a collective 50 ppmv concentration threshold
for determining applicability. It was not the EPA's intent to expand
the applicability of the CMAS rule, but rather to make the
applicability consistent with the definitions of batch and continuous
process vents. As explained above and in section IV.F of this preamble,
the commenters brought up numerous issues that the EPA had not
considered when proposing this revision, which would have inadvertently
expanded the applicability of the rule. The expansion of the
applicability was inadvertent and the EPA has not revised the final
rule as proposed.

VI. What other actions are we taking?

In addition to requesting reconsideration of the above issues, the
petition for reconsideration also requested the EPA take comment on
three additional issues: (1) A de minimis exemption for all sources
potentially subject to the rule; (2) a Petitioner proposed
interpretation of the CAA section 112(c)(7) definition of ``research or
laboratory facilities'' that would include commercial development
activities; and (3) a pollution prevention alternative. The EPA is
denying reconsideration of these issues because they failed to meet the
standard for reconsideration under CAA section 307(d)(7)(B), and the
EPA determined that reconsideration was not otherwise appropriate.
Specifically, on these issues, the Petitioners have failed to show the
following: That it was impracticable to raise their objections during
the comment period; and/or that their concern is of central relevance
to the outcome of the rules. We have concluded that no clarifications
to the underlying rules are warranted for these issues.
Section 307(d)(7)(B) of the CAA states that ``[o]nly an objection
to a rule or procedure which was raised with reasonable specificity
during the period for public comment (including any public hearing) may
be raised during judicial review. If the person raising an objection
can demonstrate to the Administrator that it was impracticable to raise
such objection within such time or if the grounds for such objection
arose after the period for public comment (but within the time
specified for judicial review) and if such objection is of central
relevance to the outcome of the rule, the Administrator shall convene a
proceeding for reconsideration of the rule and provide the same
procedural rights as would have been afforded had the information been
available at the time the rule was proposed. If the Administrator
refuses to convene such a proceeding, such person may seek review of
such refusal in the United States court of appeals for the appropriate
circuit (as provided in subsection (b)).''
As to the first procedural criterion for reconsideration, a
petitioner must show why the issue could not have been presented during
the comment period, either because it was impracticable to raise the
issue during that time or because the grounds for the issue arose after
the period for public comment (but within 60 days of publication of the
final action). In the EPA's view, an objection is of central relevance
to the outcome of the rule only if it provides substantial support for
the argument that the promulgated regulation should be revised. See,
e.g., the EPA's Denial of the Petition to Reconsider the Endangerment
and Cause of Contribute Findings for the Greenhouse Gases under Section
202 of the Clean Air Act, 75 FR 49561 (August 13, 2010). See also, 75
FR 49556, 49560-49563 (August 13, 2010), and 76 FR 4780, 4786-4788
(January 26, 2011) for additional discussion of the standard for
reconsideration under CAA section 307(d)(7)(B).

A. De Minimis Exemption

Petitioners stated that the EPA should revise the CMAS final rule
to include an across-the-board de minimis exemption for sources. The
Petitioners argued that reconsideration would allow commenters to
explain how, even with a de minimis exemption, the EPA could meet its
statutory obligations.
This issue was contained in public comments submitted in response
to the CMAS proposed rule published on October 6, 2008 (73 FR 58352).
The EPA's responses to the comments are presented in section V.A of the
preamble to the final rule (74 FR 56016-56018) and section 3.2 (pp. 3-
3-3-4) of the October 2009 Response to Comments Regarding National
Emission Standards for Hazardous Air Pollutants for Chemical
Manufacturing Area Sources document (See Docket Item No. EPA-HQ-OAR-
2008-0334-0087).
The comments received on this issue demonstrate that the public had
ample opportunity to comment on this issue and indeed did so. The EPA
responded to those comments and sees no substantive reason to revisit
this issue. Therefore, because the Petitioners did not demonstrate that
it was impracticable to comment on this issue during the comment period
on the proposed rule and the Petitioners did comment on it during the
comment period for the 2008 proposal, the EPA is denying
reconsideration of this issue.

B. Research and Development Interpretation

Petitioners stated that the EPA should take comment on an
interpretation of ``research and laboratory facility'' in the CMAS
final rule that would exempt equipment associated with ``research'' or
``laboratory'' activities as those terms are defined by the
Petitioners. The Petitioners were concerned that, without an
interpretation of the CAA section 112(c)(7) exemption for research and
development facilities, the CMAS rule may pose a substantial compliance
challenge for some sources.
This issue was contained in public comments submitted in response
to the CMAS proposed rule published on October 6, 2008 (73 FR 58352).
The EPA's responses to the comments are presented in section 3.5.3 (pp.
3-11) of the October 2009 Response to Comments Regarding National
Emission Standards for Hazardous Air Pollutants

[[Page 75754]]

for Chemical Manufacturing Area Sources document (See Docket Item No.
EPA-HQ-OAR-2008-0334-0087).
The comments received on this issue demonstrate that the public had
ample opportunity to comment on this issue and indeed did so. The EPA
responded to those comments and sees no substantive reason to revisit
this issue. Therefore, because the Petitioners did not demonstrate that
it was impracticable to comment on this issue during the comment period
on the proposed rule and the Petitioners did comment on it during the
comment period for the 2008 proposal, the EPA is denying
reconsideration of this issue.

C. Pollution Prevention Alternative

Petitioners stated that the EPA should revise the CMAS final rule
to include a pollution prevention alternative. The Petitioners argued
that there would be broad interest in this alternative and that data
would be made available for the EPA to specify requirements for such an
alternative.
This issue was contained in public comments submitted in response
to the CMAS proposed rule published on October 6, 2008 (73 FR 58352).
The EPA's responses to the comments are presented in section 4.7 (pp.
4-7--4-8) of the October 2009 Response to Comments Regarding National
Emission Standards for Hazardous Air Pollutants for Chemical
Manufacturing Area Sources document (See Docket Item No. EPA-HQ-OAR-
2008-0334-0087).
The comments received on this issue demonstrate that the public had
ample opportunity to comment on this issue, and indeed did so. The EPA
responded to those comments and sees no substantive reason to revisit
this issue. Therefore, because the Petitioners did not demonstrate that
it was impracticable to comment on this issue during the comment period
on the proposed rule and the Petitioners did comment on it during the
comment period for the 2008 proposal, the EPA is denying
reconsideration of this issue.

VII. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory 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, the EPA submitted this
action to the Office of Management and Budget (OMB) for review under
Executive Order 12866 and Executive Order 13563 (76 FR 3821, January
21, 2011), 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 the OMB under the Paperwork Reduction
Act, 44 U.S.C. 3501, et seq. The Information Collection Request (ICR)
document prepared by the EPA has been assigned EPA ICR Number 2323.05.
The information collection requirements are not enforceable until OMB
approves them.
The information requirements are based on notification,
recordkeeping and reporting requirements in the NESHAP General
Provisions (40 CFR part 63, subpart A), which are mandatory for all
operators subject to national emission standards. These recordkeeping
and reporting requirements are specifically authorized by section 114
of the CAA (42 U.S.C. 7414). All information submitted to the EPA
pursuant to the recordkeeping and reporting requirements for which a
claim of confidentiality is made is safeguarded according to agency
policies set forth in 40 CFR part 2, subpart B.
For this final rule, the EPA is adding affirmative defense to the
estimate of burden in the ICR. To provide the public with an estimate
of the relative magnitude of the burden associated with an assertion of
the affirmative defense position adopted by a source, the EPA has
provided administrative adjustments to this ICR to show what the
notification, recordkeeping and reporting requirements associated with
the assertion of the affirmative defense might entail. The EPA's
estimate for the required notification, reports and records for any
individual incident, including the root cause analysis, totals $2,958
and is based on the time and effort required of a source to review
relevant data, interview plant employees and document the events
surrounding a malfunction that has caused an exceedance of an emissions
limit. The estimate also includes time to produce and retain the record
and reports for submission to the EPA. The EPA provides this
illustrative estimate of this burden because these costs are only
incurred if there has been a violation and a source chooses to take
advantage of the affirmative defense.
Given the variety of circumstances under which malfunctions could
occur, as well as differences among sources' operation and maintenance
practices, we cannot reliably predict the severity and frequency of
malfunction-related excess emissions events for a particular source. It
is important to note that the EPA has no basis currently for estimating
the number of malfunctions that would qualify for an affirmative
defense. Current historical records would be an inappropriate basis, as
source owners or operators previously operated their facilities in
recognition that they were exempt from the requirement to comply with
emissions standards during malfunctions. Of the number of excess
emissions events reported by source operators, only a small number
would be expected to result from a malfunction (based on the definition
above), and only a subset of excess emissions caused by malfunctions
would result in the source choosing to assert the affirmative defense.
Thus, we believe the number of instances in which source operators
might be expected to avail themselves of the affirmative defense will
be extremely small. For this reason, we estimate no more than 2 or 3
such occurrences for all sources subject to 40 CFR part 63, subpart
VVVVVV over the 3-year period covered by this ICR. We expect to gather
information on such events in the future and will revise this estimate
as better information becomes available.
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 the
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 Procedures
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 as defined
by the Small Business Administration's regulations at 13 CFR

[[Page 75755]]

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 that 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 will not impose any new requirements on any small entities because
it does not impose any additional regulatory requirements beyond those
already promulgated.

D. Unfunded Mandates Reform Act

This action contains no federal mandates under the provisions of
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C.
1531-1538 for state, local or tribal governments or the private sector.
This final rule imposes no enforceable duty on any state, local or
tribal governments or the private sector. Therefore, this final rule is
not subject to the requirements of sections 202 and 205 of the UMRA.
This action 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 rule finalizes
amendments to aid with compliance but does not change the level of the
standards in the rule.

E. Executive Order 13132: Federalism

This action does not have federalism implications. It will not have
substantial direct effects on the states, on the relationship between
the national government and the states or on the distribution of power
and responsibilities among the various levels of government, as
specified in Executive Order 13132. This final rule will not impose
direct compliance costs on state or local governments and will not
preempt state law. Thus, Executive Order 13132 does not apply to this
action.

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

This final rule does not have tribal implications, as specified in
Executive Order 13175 (65 FR 67249, November 9, 2000). It will not have
substantial direct effects on tribal governments, on the relationship
between the federal government and Indian tribes or on the distribution
of power and responsibilities between the federal government and Indian
tribes, as specified in Executive Order 13175. Thus, Executive Order
13175 does not apply to this final rule.

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

The 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
final rule is not subject to Executive Order 13045 because it is based
solely on technology performance. Further, this action does not relax
the control measures on sources regulated by the final rule, and,
therefore, will maintain the level of environmental protection.

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, this action does not change the level of
standards already in place.

I. National Technology Transfer and Advancement Act

Section 12(d) of the National Technology Transfer and Advancement
Act (NTTAA) of 1995, Public Law No. 104-113, 12(d) (15 U.S.C. 272 note)
directs the 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. The
NTTAA directs the EPA to provide Congress, through OMB, explanations
when the agency decides not use available and applicable VCS.
This final rulemaking does not involve technical standards.
Therefore, the EPA did not consider the use of any VCS.

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

Executive Order 12898 (59 FR 7629, February 16, 1994) establishes
federal executive policy on environmental justice. Its main provision
directs federal agencies, to the greatest extent practicable and
permitted by law, to make environmental justice part of their mission
by identifying and addressing, as appropriate, disproportionately high
and adverse human health or environmental effects of their programs,
policies and activities on minority populations and low-income
populations in the United States.
The EPA has determined that this final rule, as amended, will not
have disproportionately high and adverse human health or environmental
effects on minority or low-income populations because the rule
amendments maintain the level of environmental protection for all
affected populations without having any disproportionately high and
adverse human health or environmental effects on any population,
including any minority or low-income population. This action does not
relax the control measures on sources regulated by the final rule, and,
therefore, will not cause emissions increases from these sources.

K. Congressional Review Act

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A Major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2). This rule will be effective December 21, 2012.

List of Subjects in 40 CFR Part 63

Environmental protection, Administrative practice and procedure,
Air pollution control, Hazardous substances.

Dated: December 14, 2012.
Lisa P. Jackson,
Administrator.

For the reasons cited in the preamble, title 40, chapter I, part 63
of the Code

[[Page 75756]]

of Federal Regulations is amended as follows:

PART 63--[AMENDED]

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

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

Subpart VVVVVV--[AMENDED]

0
2. Lift the stay of subpart VVVVVV published October 25, 2012 (77 FR
65135).

0
3. In Sec. 63.11494, lift the stay on paragraph (e) published March
14, 2011 (76 FR 13514).

0
4. Section 63.11494 is amended by:
0
a. Revising paragraph (a);
0
b. Adding paragraph (c)(1)(vii);
0
c. Revising the last sentence in paragraph (d) introductory text;
0
d. Revising paragraphs (e) and (f) to read as follows:

Sec. 63.11494 What are the applicability requirements and compliance
dates?

(a) Except as specified in paragraph (c) of this section, you are
subject to this subpart if you own or operate a chemical manufacturing
process unit (CMPU) that meets the conditions specified in paragraphs
(a)(1) and (2) of this section.
(1) The CMPU is located at an area source of hazardous air
pollutant (HAP) emissions.
(2) HAP listed in Table 1 to this subpart (Table 1 HAP) are present
in the CMPU, as specified in paragraph (a)(2)(i), (ii), (iii), or (iv)
of this section.
(i) The CMPU uses as feedstock, any material that contains
quinoline, manganese, and/or trivalent chromium at an individual
concentration greater than 1.0 percent by weight, or any other Table 1
HAP at an individual concentration greater than 0.1 percent by weight.
To determine the Table 1 HAP content of feedstocks, you may rely on
formulation data provided by the manufacturer or supplier, such as the
Material Safety Data Sheet (MSDS) for the material. If the
concentration in an MSDS is presented as a range, use the upper bound
of the range.
(ii) Quinoline is generated as byproduct and is present in the CMPU
in any liquid stream (process or waste) at a concentration greater than
1.0 percent by weight.
(iii) Hydrazine and/or Table 1 organic HAP other than quinoline are
generated as byproduct and are present in the CMPU in any liquid stream
(process or waste), continuous process vent, or batch process vent at
an individual concentration greater than 0.1 percent by weight.
(iv) Hydrazine or any Table 1 HAP is produced as a product of the
CMPU.
* * * * *
(c) * * *
(1) * * *
(vii) Lead oxide production at Lead Acid Battery Manufacturing
Facilities, subject to subpart PPPPPP of this part.
* * * * *
(d) * * * A CMPU using only Table 1 metal HAP is required to
control only total CAA section 112(b) metal HAP in accordance with
Sec. 63.11495 and, if applicable, Sec. 63.11496(f).
* * * * *
(e) Any area source that installed a federally-enforceable control
device on an affected CMPU is required to obtain a permit under 40 CFR
part 70 or 40 CFR part 71 if the control device on the affected CMPU is
necessary to maintain the source's emissions at area source levels. For
new and existing sources subject to this rule on December 21, 2012 and
subject to title V as a result of this rule, a complete title V permit
application must be submitted no later than December 21, 2013. New and
existing sources that become subject to this rule after December 21,
2012 must submit a complete title V permit application no later than 12
months after becoming subject to this rule if the source is subject to
title V as a result of this rule. Otherwise, you are exempt from the
obligation to obtain a permit under 40 CFR part 70 or 40 CFR part 71,
provided you are not otherwise required by law to obtain a permit under
40 CFR 70.3(a) or 40 CFR 71.3(a). Notwithstanding the previous
sentence, you must continue to comply with the provisions of this
subpart.
(f) If you own or operate an existing affected source, you must
achieve compliance with the applicable provisions in this subpart no
later than March 21, 2013.
* * * * *

0
5. Section 63.11495 is amended by:
0
a. Revising paragraphs (a)(1) and (a)(3);
0
b. Adding paragraph (c) heading; and
0
c. Adding paragraph (d) to read as follows:

Sec. 63.11495 What are the management practices and other
requirements?

(a) * * *
(1) Each process vessel must be equipped with a cover or lid that
must be closed at all times when it is in organic HAP service or metal
HAP service, except for manual operations that require access, such as
material addition and removal, inspection, sampling and cleaning. This
requirement does not apply to process vessels containing only metal HAP
that are in a liquid solution or other form that will not result in
particulate emissions of metal HAP (e.g., metal HAP that is in ingot,
paste, slurry, or moist pellet form or other form).
* * * * *
(3) You must conduct inspections of process vessels and equipment
for each CMPU in organic HAP service or metal HAP service, as specified
in paragraphs (a)(3)(i) through (v) of this section, to demonstrate
compliance with paragraph (a)(1) of this section and to determine that
the process vessels and equipment are sound and free of leaks.
Alternatively, except when the subject CMPU contains metal HAP as
particulate, inspections may be conducted while the subject process
vessels and equipment are in VOC service, provided that leaks can be
detected when in VOC service.
(i) Inspections must be conducted at least quarterly.
(ii) For these inspections, detection methods incorporating sight,
sound, or smell are acceptable. Indications of a leak identified using
such methods constitute a leak unless you demonstrate that the
indications of a leak are due to a condition other than loss of HAP. If
indications of a leak are determined not to be HAP in one quarterly
monitoring period, you must still perform the inspection and
demonstration in the next quarterly monitoring period.
(iii) As an alternative to conducting inspections, as specified in
paragraph (a)(3)(ii) of this section, you may use Method 21 of 40 CFR
part 60, appendix A-7, with a leak definition of 500 ppmv to detect
leaks. You may also use Method 21 with a leak definition of 500 ppmv to
determine if indications of a leak identified during an inspection
conducted in accordance with paragraph (a)(3)(ii) of this section are
due to a condition other than loss of HAP. The procedures in this
paragraph (a)(3)(iii) may not be used as an alternative to the
inspection required by paragraph (a)(3)(ii) of this section for process
vessels that contain metal HAP as particulate.
(iv) Inspections must be conducted while the subject CMPU is
operating.
(v) No inspection is required in a calendar quarter during which
the subject CMPU does not operate for the entire calendar quarter and
is not in organic HAP service or metal HAP service. If the CMPU
operates at all during a calendar quarter, an inspection is required.
* * * * *
(c) Startup, shutdown and malfunction. * * *

[[Page 75757]]

(d) General duty. At all times, you must operate and maintain any
affected CMPU, including associated air pollution control equipment and
monitoring equipment, in a manner consistent with safety and good air
pollution control practices for minimizing emissions. Determination of
whether such operation and maintenance procedures are being used will
be based on information available to the Administrator, which may
include, but is not limited to, monitoring results, review of operation
and maintenance procedures, review of operation and maintenance
records, and inspection of the CMPU.

0
6. Section 63.11496 is amended by:
0
a. Revising the last sentence in paragraph (c);
0
b. Revising paragraphs (d) and (e) introductory texts;
0
c. Adding paragraph (e)(6);
0
d. Adding a sentence to the end of paragraph (f) introductory text;
0
e. Revising paragraphs (f)(3)(i)(C), (f)(3)(ii), and (g)(1);
0
f. Revising the first sentence in paragraph (g)(2); and
0
g. Revising paragraphs (g)(4)(i) and (g)(5).
The additions and revisions read as follows:

Sec. 63.11496 What are the standards and compliance requirements for
process vents?

* * * * *
(c) * * * The TRE index value for continuous process vents and the
annual emissions from batch process vents shall be determined for the
individual streams before they are combined, and prior to any control
(e.g., by subtracting any emission contributions from storage tanks,
continuous process vents or batch process vents, as applicable), in
order to determine the most stringent applicable requirements.
(d) Halogenated streams. You must determine if an emission stream
is a halogenated vent stream by calculating the mass emission rate of
halogen atoms in accordance with Sec. 63.115(d)(2)(v). Alternatively,
you may elect to designate the emission stream as halogenated. If you
use a combustion device to comply with the emission limits for organic
HAP from a halogenated batch process vent or a halogenated continuous
process vent, you must use a halogen reduction device to meet the
emission limit in either paragraph (d)(1) or (d)(2) of this section and
in accordance with Sec. 63.994 and the requirements referenced
therein.
* * * * *
(e) Alternative standard for organic HAP. Exceptions to the
requirements for the alternative standard requirements specified in
Tables 2 and 3 to this subpart and Sec. 63.2505 are specified in
paragraphs (e)(1) through (6) of this section.
* * * * *
(6) CEMS requirements and data reduction requirements for CEMS
specified in Sec. 63.2450(j) apply.
* * * * *
(f) Emissions from metal HAP process vents. * * * The requirements
of this paragraph (f) do not apply to metal HAP process vents from CMPU
containing only metal HAP that are in a liquid solution or other form
that will not result in particulate emissions of metal HAP (e.g., metal
HAP that is in ingot, paste, slurry, or moist pellet form or other
form).
* * * * *
(3) * * *
(i) * * *
(C) Operation and maintenance plan for the control device
(including a preventative maintenance schedule consistent with the
manufacturer's instructions for routine and long-term maintenance) and
continuous monitoring system (CMS).
* * * * *
(ii) You must conduct a performance test or an engineering
assessment for each CMPU subject to a HAP metals emissions limit in
Table 4 to this subpart and report the results in your Notification of
Compliance Status (NOCS). Each performance test or engineering
assessment must be conducted under representative operating conditions,
and sampling for each performance test must be conducted at both the
inlet and outlet of the control device. Upon request, you shall make
available to the Administrator such records as may be necessary to
determine the conditions of performance tests. If you own or operate an
existing affected source, you are not required to conduct a performance
test if a prior performance test was conducted within the 5 years prior
to the effective date using the same methods specified in paragraph
(f)(3)(iii) of this section, and, either no process changes have been
made since the test, or, if you can demonstrate that the results of the
performance test, with or without adjustments, reliably demonstrate
compliance despite process changes.
* * * * *
(g) * * *
(1) Requirements for performance tests. (i) The requirements
specified in Sec. 63.2450(g)(1) through (4) apply instead of, or in
addition to, the requirements specified in 40 CFR part 63, subpart SS.
(ii) Upon request, you shall make available to the Administrator,
such records as may be necessary to determine the conditions of
performance tests.
(2) Design evaluation. To determine initial compliance with a
percent reduction or outlet concentration emission limit, you may elect
to conduct a design evaluation as specified in Sec. 63.1257(a)(1)
instead of a performance test as specified in subpart SS of this part
63. * * *
* * * * *
(4) * * *
(i) You may measure pH or caustic strength of the scrubber effluent
at least once per day for any halogen scrubber within a CMPU subject to
this rule.
* * * * *
(5) Startup, shutdown, malfunction (SSM). Sections 63.996(c)(2)(ii)
and 63.998(b)(2)(iii), (b)(6)(i)(A), (c)(1)(ii)(E) and (d)(3) do not
apply for the purposes of this subpart.
* * * * *

0
7. Section 63.11497 is amended by adding paragraph (d) to read as
follows:

Sec. 63.11497 What are the standards and compliance requirements for
storage tanks?

* * * * *
(d) Combustion of halogenated streams. If you use a combustion
device to comply with the emission limits for organic HAP from a
halogenated vent stream from a storage tank, you must reduce emissions
in accordance with Sec. 63.11496(d) and the requirements referenced
therein.

0
8. Section 63.11498 is amended by revising paragraph (a)(2) to read as
follows:

Sec. 63.11498 What are the standards and compliance requirements for
wastewater systems?

(a) * * *
(2) You are not required to determine the partially soluble
concentration in wastewater that is hard piped to a combustion unit or
hazardous waste treatment unit, as specified in Table 6, Item 2.b to
this subpart.
* * * * *

0
9. Section 63.11500 is amended by revising paragraph (a) to read as
follows:

Sec. 63.11500 What compliance options do I have if part of my plant
is subject to both this subpart and another Federal standard?

* * * * *
(a) Compliance with other subparts of this part 63. (1) If any part
of a CMPU that is subject to the provisions of this

[[Page 75758]]

subpart is also subject to the provisions of another subpart of 40 CFR
part 63, then compliance with any of the requirements in the other
subpart of this part 63 that are at least as stringent as the
corresponding requirements in this subpart VVVVVV constitutes
compliance with this subpart VVVVVV.
(2) After the compliance dates specified in Sec. 63.11494, at an
offsite reloading or cleaning facility subject to Sec. 63.1253(f), as
referenced from Sec. 63.2470(e) and Table 4 to subpart VVVVVV,
compliance with the monitoring, recordkeeping, and reporting provisions
of any other subpart of this part 63 constitutes compliance with the
monitoring, recordkeeping, and reporting provisions of Sec.
63.1253(f)(7)(ii) or (iii). You must identify in your notification of
compliance status report required by Sec. 63.11501(b) the subpart of
this part 63 with which the owner or operator of the offsite reloading
or cleaning facility complies.
* * * * *

0
10. Section 63.11501 is amended by:
0
a. Revising the section heading;
0
b. Revising the last sentence in paragraph (c) introductory text;
0
c. Revising paragraph (c)(1) introductory text;
0
d. Adding paragraphs (c)(1)(vii) and (c)(1)(viii);
0
e. Revising paragraph (c)(4)(i);
0
f. Adding paragraph (c)(8);
0
g. Revising the last sentence in paragraph (d) introductory text; and
0
h. Adding paragraphs (d)(8) and (e) to read as follows:

Sec. 63.11501 What are the notification, recordkeeping, and reporting
requirements, and how may I assert an affirmative defense for violation
of emission standards during malfunction?

* * * * *
(c) Recordkeeping. * * * If you are subject, you must comply with
the recordkeeping and reporting requirements of Sec. 63.10(b)(2)(iii)
and (vi) through (xiv), and the applicable requirements specified in
paragraphs (c)(1) through (8) of this section.
(1) For each CMPU subject to this subpart, you must keep the
records specified in paragraphs (c)(1)(i) through (viii) of this
section.
* * * * *
(vii) Records of the date, time, and duration of each malfunction
of operation of process equipment, control devices, recovery devices,
or continuous monitoring systems used to comply with this subpart that
causes a failure to meet a standard. The record must include a list of
the affected sources or equipment, an estimate of the volume of each
regulated pollutant emitted over the standard, and a description of the
method used to estimate the emissions.
(viii) Records of actions taken during periods of malfunction to
minimize emissions in accordance with Sec. 63.11495(d), including
corrective actions to restore malfunctioning process and air pollution
control and monitoring equipment to its normal or usual manner of
operation.
* * * * *
(4) * * *
(i) Keep records of the vessel dimensions, capacity, and liquid
stored, as specified in Sec. 63.1065(a).
* * * * *
(8) For continuous process vents subject to Table 3 to this
subpart, keep records of the occurrence and duration of each startup
and shutdown of operation of process equipment, or of air pollution
control and monitoring equipment.
(d) * * * Reports are required only for semiannual periods during
which you experienced any of the events described in paragraphs (d)(1)
through (8) of this section.
* * * * *
(8) Malfunctions. If a malfunction occurred during the reporting
period, the report must include the number of instances of malfunctions
that caused emissions in excess of a standard. For each malfunction
that caused emissions in excess of a standard, the report must include
a list of the affected sources or equipment, an estimate of the volume
of each regulated pollutant emitted over the standard, and a
description of the method used to estimate the emissions. The report
must also include a description of actions you took during a
malfunction of an affected source to minimize emissions in accordance
with Sec. 63.11495(d), including actions taken to correct a
malfunction.
(e) Affirmative defense for violation of emission standards during
malfunction. In response to an action to enforce the standards set
forth in Sec. Sec. 63.11495 through 63.11499, you may assert an
affirmative defense to a claim for civil penalties for violations of
such standards that are caused by malfunction, as defined at 40 CFR
63.2. Appropriate penalties may be assessed if you fail to meet your
burden of proving all of the requirements in the affirmative defense.
The affirmative defense shall not available for claims for injunctive
relief.
(1) To establish the affirmative defense in any action to enforce
such a standard, you must timely meet the notification requirements in
paragraph (e)(2) of this section, and must prove by a preponderance of
evidence that:
(i) The violation:
(A) Was caused by a sudden, infrequent, and unavoidable failure of
air pollution control equipment, process equipment, or a process to
operate in a normal or usual manner; and
(B) Could not have been prevented through careful planning, proper
design, or better operation and maintenance practices; and
(C) Did not stem from any activity or event that could have been
foreseen and avoided, or planned for; and
(D) Was not part of a recurring pattern indicative of inadequate
design, operation, or maintenance; and
(ii) Repairs were made as expeditiously as possible when a
violation occurred. Off-shift and overtime labor were used, to the
extent practicable to make these repairs; and
(iii) The frequency, amount, and duration of the violation
(including any bypass) were minimized to the maximum extent
practicable; and
(iv) If the violation resulted from a bypass of control equipment
or a process, then the bypass was unavoidable to prevent loss of life,
personal injury, or severe property damage; and
(v) All possible steps were taken to minimize the impact of the
violation on ambient air quality, the environment and human health; and
(vi) All emissions monitoring and control systems were kept in
operation if at all possible, consistent with safety and good air
pollution control practices; and
(vii) All of the actions in response to the violation were
documented by properly signed, contemporaneous operating logs; and
(viii) At all times, the affected CMPU was operated in a manner
consistent with good practices for minimizing emissions; and
(ix) A written root cause analysis has been prepared, the purpose
of which is to determine, correct, and eliminate the primary causes of
the malfunction and the violation resulting from the malfunction event
at issue. The analysis must also specify, using best monitoring methods
and engineering judgment, the amount of any emissions that were the
result of the malfunction.
(2) Report. If you seek to assert an affirmative defense, you must
submit a written report to the Administrator, with all necessary
supporting documentation, that you have met the requirements set forth
in paragraph (e)(1) of this section. This affirmative defense report
must be included in the first periodic compliance report,

[[Page 75759]]

deviation report, or excess emission report otherwise required after
the initial occurrence of the violation of the relevant standard (which
may be the end of any applicable averaging period). If such compliance
report, deviation report, or excess emission report is due less than 45
days after the initial occurrence of the violation, the affirmative
defense report may be included in the second compliance report,
deviation report, or excess emission report due after the initial
occurrence of the violation of the relevant standard.

0
11. Section 63.11502 is amended by:
0
a. In paragraph (a) adding in alphabetical order the terms ``Batch
operation (Sec. 63.2550),'' ``Continuous operation (Sec. 63.2550),''
``Control device (Sec. 63.111),'' and ``Isolated intermediate (Sec.
63.2550),'' and removing the term ``Family of materials (Sec.
63.2550)''; and
0
b. In paragraph (b) adding in alphabetical order definitions for
``Affirmative defense,'' ``Engineering assessment,'' ``Family of
materials,'' ``Hazardous waste treatment,'' ``In VOC service,'' ``Point
of determination,'' and ``Uncontrolled emissions,'' revising the second
sentence of the definition of ``Batch process vent,'' revising
paragraph (1) of the definition of ``Chemical manufacturing process,''
and revising the definitions for ``In metal HAP service,'' ``In organic
HAP service,'' ``Metal HAP process vent,'' and ``Product'' to read as
follows:

Sec. 63.11502 What definitions apply to this subpart?

* * * * *
(b) * * *
Affirmative defense means, in the context of an enforcement
proceeding, a response or defense put forward by a defendant, regarding
which the defendant has the burden of proof, and the merits of which
are independently and objectively evaluated in a judicial or
administrative proceeding.
* * * * *
Batch process vent * * * Batch process vents include vents from
batch operations and vents with intermittent flow from continuous
operations that are not combined with any stream that originated as a
continuous gas stream from the same continuous process. * * *
* * * * *
Chemical manufacturing process * * *
(1) All cleaning operations;
* * * * *
Engineering assessment means, but is not limited to, the following:
(1) Previous test results provided the tests are representative of
current operating practices at the process unit.
(2) Bench-scale or pilot-scale test data representative of the
process under representative operating conditions.
(3) Maximum flow rate, TOC emission rate, organic HAP emission
rate, metal HAP emission rate, or net heating value limit specified or
implied within a permit limit applicable to the process vent.
(4) Design analysis based on accepted chemical engineering
principles, measurable process parameters, or physical or chemical laws
or properties. Examples of analytical methods include, but are not
limited to:
(i) Use of material balances based on process stoichiometry to
estimate maximum organic HAP or metal HAP concentrations;
(ii) Estimation of maximum flow rate based on physical equipment
design such as pump or blower capacities;
(iii) Estimation of TOC, organic HAP, or metal HAP concentrations
based on saturation conditions; or
(iv) Estimation of maximum expected net heating value based on the
vent stream concentration of each organic compound or, alternatively,
as if all TOC in the vent stream were the compound with the highest
heating value.
(5) All data, assumptions, and procedures used in the engineering
assessment shall be documented.
* * * * *
Family of materials means a grouping of materials that have the
same basic composition or the same basic end use or functionality; are
produced using the same basic feedstocks, the same manufacturing
equipment configuration and in the same sequence of steps; and whose
production results in emissions of the same Table 1 HAP at
approximately the same rate per pound of product produced. Examples of
families of materials include multiple grades of same product or
different variations of a product (e.g., blue, black and red resins).
* * * * *
Hazardous waste treatment, as used in the wastewater requirements,
means treatment in any of the following units:
(1) A hazardous waste incinerator for which you have been issued a
final permit under 40 CFR part 270 and comply with the requirements of
40 CFR part 264, subpart O, for which you have certified compliance
with the interim status requirements of 40 CFR part 265, subpart O, or
for which you have submitted a Notification of Compliance under 40 CFR
63.1207(j) and comply with the requirements of 40 CFR part 63, subpart
EEE at all times (including times when non-hazardous waste is being
burned);
(2) A process heater or boiler for which you have been issued a
final permit under 40 CFR part 270 and comply with the requirements of
40 CFR part 266, subpart H, for which you have certified compliance
with the interim status requirements of 40 CFR part 266, subpart H, or
for which you have submitted a Notification of Compliance under 40 CFR
63.1207(j) and comply with the requirements of 40 CFR part 63, subpart
EEE at all times (including times when non-hazardous waste is being
burned); or
(3) An underground injection well for which you have been issued a
final permit under 40 CFR part 270 or 40 CFR part 144 and comply with
the requirements of 40 CFR part 122.
In metal HAP service means that a process vessel or piece of
equipment either contains or contacts a feedstock, byproduct, or
product that contains metal HAP. A process vessel is no longer in metal
HAP service after the vessel has been emptied to the extent practicable
(i.e., a vessel with liquid left on process vessel walls or as bottom
clingage, but not in pools, due to floor irregularity, is considered
completely empty) and any cleaning has been completed.
In organic HAP service means that a process vessel or piece of
equipment either contains or contacts a feedstock, byproduct, or
product that contains an organic HAP, excluding any organic HAP used in
manual cleaning activities. A process vessel is no longer in organic
HAP service after the vessel has been emptied to the extent practicable
(i.e., a vessel with liquid left on process vessel walls or as bottom
clingage, but not in pools, due to floor irregularity, is considered
completely empty) and any cleaning has been completed.
In VOC service means that a process vessel or piece of equipment
either contains or contacts a fluid that contains VOC.
* * * * *
Metal HAP process vent means the point of discharge to the
atmosphere (or inlet to a control device, if any) of a metal HAP-
containing gas stream from any CMPU at an affected source containing at
least 50 ppmv metal HAP. The metal HAP concentration may be determined
using any of the following: process knowledge, an engineering
assessment, or test data.
* * * * *

[[Page 75760]]

Point of determination means ``point of determination'' as defined
in Sec. 63.111 in subpart G of this part, except:
(1) The reference to Table 8 or Table 9 compounds means Table 9
(subpart G) or Table 7 (subpart VVVVVV) compounds;
(2) The reference to ``as determined in Sec. 63.144 of this
subpart'' does not apply for the purposes of this subpart; and
(3) The point of determination is made at the point where the
stream exits the CMPU. If a recovery device is used, the point of
determination is after the last recovery device.
Product means a compound or chemical which is manufactured as the
intended product of the CMPU. Products include co-products. By-
products, impurities, wastes, and trace contaminants are not considered
products.
* * * * *
Uncontrolled emissions means organic HAP process vent emissions or
metal HAP process vent emissions, as applicable, at the outlet of the
last recovery device, if any, and prior to any control device. In the
absence of both recovery devices and control devices, uncontrolled
emissions are the emissions discharged to the atmosphere.
* * * * *

0
12. Table 3 to subpart VVVVVV of part 63 is revised to read as follows:

Table 3 to Subpart VVVVVV of Part 63--Emission Limits and Compliance Requirements for Continuous Process Vents
[As required in Sec. 63.11496, you must comply with the requirements for continuous process vents as shown in
the following table]
----------------------------------------------------------------------------------------------------------------
For . . . You must . . . Except . . .
----------------------------------------------------------------------------------------------------------------
1. Each continuous process vent with a. Reduce emissions of total organic HAP i. Compliance may be based on
a TRE <=1.0. by >=95 percent by weight (>=85 percent either total organic HAP or
by weight for periods of startup or TOC; and
shutdown) or to <=20 ppmv by routing ii. As specified in Sec.
emissions through a closed vent system to 63.11496(g).
any combination of control devices
(except a flare) in accordance with the
requirements of Sec. 63.982(c) and the
requirements referenced therein; or

b. Reduce emissions of total organic by i. Not applicable.
HAP by routing all emissions through a
closed-vent system to a flare (except
that a flare may not be used to control
halogenated vent streams) in accordance
with the requirements of Sec. 63.982(b)
and the requirements referenced therein,
or

c. Comply with the alternative standard i. As specified in Sec.
specified in Sec. 63.2505 and the 63.11496(e).
requirements referenced therein
2. Halogenated vent stream that is a. Comply with the requirements for .............................
controlled through combustion. halogen scrubbers in Sec. 63.11496(d).
3. Each continuous process vent with a. Comply with the requirements of Sec. .............................
a TRE >1.0 but <=4.0. 63.982(e) and the requirements specified
therein if a recovery device, as defined
in Sec. 63.11502, is used to maintain a
TRE >1.0 but <=4.0.
----------------------------------------------------------------------------------------------------------------

0
13. The entry for Item 1 of Table 5 to subpart VVVVVV of part 63 is
revised to read as follows:
* * * * *

Table 5 to Subpart VVVVVV of Part 63--Emission Limits and Compliance Requirements for Storage Tanks
----------------------------------------------------------------------------------------------------------------
For each . . . You must . . . Except . . .
----------------------------------------------------------------------------------------------------------------
1. Storage tank with a design a. Comply with the requirements of subpart i. All required seals must be
capacity >=40,000 gallons, storing WW of this part; installed by the compliance
liquid that contains organic HAP date in Sec. 63.11494.
listed in Table 1 to this subpart,
and for which the maximum true vapor
pressure (MTVP) of total organic HAP
at the storage temperature is >=5.2
kPa and <76.6 kPa..

[[Page 75761]]

b. Reduce total organic HAP emissions by i. Compliance may be based on
>=95 percent by weight by operating and either total organic HAP or
maintaining a closed-vent system and TOC;
control device (other than a flare) in ii. When the term storage
accordance with Sec. 63.982(c); or vessel is used in subpart SS
of this part, the term
storage tank, surge control
vessel, or bottoms receiver,
as defined in Sec.
63.11502 of this subpart,
applies; and
iii. The requirements do not
apply during periods of
planned routine maintenance
of the control device, as
specified in Sec.
63.11497(b).
c. Reduce total HAP emissions by operating i. The requirements do not
and maintaining a closed-vent system and apply during periods of
a flare in accordance with Sec. planned routine maintenance
63.982(b); or of the flare, as specified
in Sec. 63.11497(b); and
ii. When the term storage
vessel is used in subpart SS
of this part, it means
storage tank, surge control
vessel, or bottoms receiver,
as defined in Sec.
63.11502 of this subpart.
d. Vapor balance in accordance with Sec. i. To comply with Sec.
63.2470(e); or 63.1253(f)(6)(i), the owner
or operator of an offsite
cleaning or reloading
facility must comply with
Sec. 63.11494 and Sec.
63.11502 instead of
complying with Sec.
63.1253(f)(7)(ii), except as
specified in item 1.d.ii and
1.2.iii of this table.
ii. The reporting
requirements in Sec.
63.11501 do not apply to the
owner or operator of the
offsite cleaning or
reloading facility.
iii. As an alternative to
complying with the
monitoring, recordkeeping,
and reporting provisions in
Sec. Sec. 63.11494
through 63.11502, the owner
or operator of an offsite
cleaning or reloading
facility may comply as
specified in Sec. 63.11500
with any other subpart of
this part 63 which has
monitoring, recordkeeping,
and reporting provisions as
specified in Sec.
63.11500.
e. Route emissions to a fuel gas system or i. When the term storage
process in accordance with the vessel is used in subpart SS
requirements in Sec. 63.982(d) and the of this part, it means
requirements referenced therein. storage tank, surge control
vessel, or bottoms receiver,
as defined in Sec.
63.11502.

* * * * * * *
----------------------------------------------------------------------------------------------------------------

* * * * *

0
14. Table 6 to subpart VVVVVV of part 63 is revised to read as follows:

Table 6 to Subpart VVVVVV of Part 63--Emission Limits and Compliance Requirements for Wastewater Systems
[As required in Sec. 63.11498, you must comply with the requirements for wastewater systems as shown in the
following table]
----------------------------------------------------------------------------------------------------------------
For each . . . You must . . . And you must . . .
----------------------------------------------------------------------------------------------------------------
1. Wastewater stream................. a. Discharge to onsite or offsite i. Maintain records
wastewater treatment or hazardous waste identifying each wastewater
treatment stream and documenting the
type of treatment that it
receives. Multiple
wastewater streams with
similar characteristics and
from the same type of
activity in a CMPU may be
grouped together for
recordkeeping purposes.

[[Page 75762]]

2. Wastewater stream containing a. Use a decanter, steam stripper, thin i. For the water phase,
partially soluble HAP at a film evaporator, or distillation unit comply with the requirements
concentration >=10,000 ppmw and to separate the water phase from the in Item 1 of this table, and
separate organic and water phases. organic phase(s); or ii. For the organic phase(s),
recycle to a process, use as
fuel, or dispose as
hazardous waste either
onsite or offsite, and
iii. Keep records of the
wastewater streams subject
to this requirement and the
disposition of the organic
phase(s).
b. Hard pipe the entire wastewater stream i. Keep records of the
to onsite treatment as a hazardous waste, wastewater streams subject
or hard pipe the entire wastewater stream to this requirement and the
to a point of transfer to onsite or disposition of the
offsite hazardous waste treatment. wastewater streams.
----------------------------------------------------------------------------------------------------------------

0
15. Table 8 to subpart VVVVVV of part 63 is revised to read as follows:

Table 8 to Subpart VVVVVV of Part 63--Emission Limits and Compliance Requirements for Heat Exchange Systems
[As required in Sec. 63.11499, you must comply with the requirements for heat exchange systems as shown in the
following table]
----------------------------------------------------------------------------------------------------------------
For . . . You must . . . Except . . .
----------------------------------------------------------------------------------------------------------------
1. Each heat exchange system with a a. Comply with the monitoring requirements i. The reference to monthly
cooling water flow rate >=8,000 gal/ in Sec. 63.104(c), the leak repair monitoring for the first 6
min and not meeting one or more of requirements in Sec. 63.104(d) and (e), months in Sec.
the conditions in Sec. 63.104(a). and the recordkeeping and reporting 63.104(b)(1) and (c)(1)(iii)
requirements in Sec. 63.104(f); or does not apply. Monitoring
shall be no less frequent
than quarterly;
ii. The reference in Sec.
63.104(f)(1) to record
retention requirements in
Sec. 63.103(c)(1) does not
apply. Records must be
retained as specified in
Sec. Sec. 63.10(b)(1) and
63.11501(c); and
iii. The reference in Sec.
63.104(f)(2) to ``the next
semi-annual periodic report
required by Sec.
63.152(c)'' means the next
semi-annual compliance
report required by Sec.
63.11501(f).
b. Comply with the heat exchange system i. Not applicable.
requirements in Sec. 63.104(b) and the
requirements referenced therein.
----------------------------------------------------------------------------------------------------------------

0
16. Table 9 to subpart VVVVVV of part 63 is amended by:
0
a. Revising the entry for 63.6(e)(1)(i) and (ii), (e)(3), and (f)(1);
0
b. Removing the entry for 63.7(a)(2), (b), (d), (e)(1)-(e)(3);
0
c. Adding new entries for 63.7(a)(2), (b), (d), (e)(2)-(e)(3) and
63.7(e)(1);
0
d. Removing the entry for 63.8(a)(1), (a)(4), (b), (c)(1)-(c)(3),
(f)(1)-(5);
0
e. Adding new entries for 63.8(a)(1), (a)(4), (b), (c)(1)(ii), (c)(2)-
(c)(3), (f)(1)-(5), 63.8(c)(1)(i), and 63.8(c)(1)(iii);
0
f. Revising the entry for 63.8(c)(4);
0
g. Removing the entry for 63.8(c)(6)-(c)(8), (d), (e), (f)(6);
0
h. Adding new entries for 63.8(c)(6)-(c)(8), (d)(1)-(d)(2), (e), (f)(6)
and 63.8(d)(3);
0
i. Revising the entry for 63.8(g)(5);
0
j. Adding a new entry for 63.9(i);
0
k. Removing the entry for 63.10(b)(2)(i)-(b)(2)(v);
0
l. Adding new entries for 63.10(b)(2)(i), 63.10(b)(2)(ii),
63.10(b)(2)(iii), and 63.10(b)(2)(iv) and (v);
0
m. Removing the entry for 63.10(c)(7)-(c)(8), (c)(10)-(c)(12), (c)(15);
0
n. Adding new entries for 63.10(c)(7)-(8), 63.10(c)(10), 63.10(c)(11),
63.10(c)(12), and 63.10(c)(15); and
0
o. Revising the entry for 63.10(d)(5).

[[Page 75763]]

The additions and revisions read as follows:

Table 9 to Subpart VVVVVV of Part 63--Applicability of General Provisions to Subpart VVVVVV
* * * * * * *
----------------------------------------------------------------------------------------------------------------
Applies to subpart
Citation Subject VVVVVV Explanation
----------------------------------------------------------------------------------------------------------------

* * * * * * *
63.6(e)(1)(i) and (ii), (e)(3), SSM Requirements....... No................ See Sec. 63.11495(d) for
and (f)(1). general duty requirement.

* * * * * * *
63.7(a)(2), (b), (d), (e)(2)- Performance Testing Yes/No............ Requirements apply if conducting
(e)(3). Schedule, Notification test for metal HAP control;
of Performance Test, requirements in Sec. Sec.
Performance Testing 63.997(c)(1), (d), (e), and
Facilities, and 63.999(a)(1) apply, as
Conduct of Performance referenced in Sec.
Tests. 63.11496(g), if conducting test
for organic HAP or hydrogen
halide and halogen HAP control
device.
63.7(e)(1)...................... Performance Testing.... No................ See Sec. 63.11496(f)(3)(ii) if
conducting a test for metal HAP
emissions. See Sec. Sec.
63.11496(g) and 63.997(e)(1) if
conducting a test for continuous
process vents or for hydrogen
halide and halogen emissions.
See Sec. Sec. 63.11496(g) and
63.2460(c) if conducting a test
for batch process vents.
63.8(a)(1), (a)(4), (b), Monitoring Requirements Yes............... .................................
(c)(1)(ii), (c)(2)-(c)(3),
(f)(1)-(5).
63.8(c)(1)(i)................... General Duty to No................ .................................
Minimize Emissions and
CMS Operation.
63.8(c)(1)(iii)................. Requirement to Develop No................ .................................
SSM Plan for CMS.

* * * * * * *
63.8(c)(4)...................... ....................... Yes............... Only for CEMS. CPMS requirements
in 40 CFR part 63, subpart SS
are referenced from Sec.
63.11496. Requirements for COMS
do not apply because subpart
VVVVVV does not require COMS.

* * * * * * *
63.8(c)(6)-(c)(8), (d)(1)- ....................... Yes............... Requirements apply only if you
(d)(2), (e), (f)(6). use a continuous emission
monitoring system (CEMS) to
demonstrate compliance with the
alternative standard in Sec.
63.11496(e).
63.8(d)(3)...................... Written Procedures for Yes............... Requirement applies except for
CMS. last sentence, which refers to
an SSM plan. SSM plans are not
required.

* * * * * * *
63.8(g)(5)...................... ....................... No................ Data reduction requirements for
CEMS are specified in Sec.
63.2450(j)(4), as referenced
from Sec. 63.11496. CPMS
requirements are specified in 40
CFR part 63, subpart SS, as
referenced from Sec. 63.11496.

* * * * * * *
63.9(i)......................... ....................... Yes............... .................................

* * * * * * *
63.10(b)(2)(i).................. Recordkeeping of No................ See Sec. 63.11501(c)(8) for
Occurrence and recordkeeping of occurrence and
Duration of Startups duration of each startup and
and Shutdowns. shutdown for continuous process
vents that are subpart to Table
3 to this subpart.
63.10(b)(2)(ii)................. Recordkeeping of No................ See Sec. 63.11501(c)(1)(vii)
Malfunctions. and (viii) for recordkeeping of
(1) date, time, duration, and
volume of excess emissions and
(2) actions taken during
malfunction.
63.10(b)(2)(iii)................ Maintenance Records.... Yes............... .................................
63.10(b)(2)(iv) and (v)......... Actions Taken to No................ .................................
Minimize Emissions
During SSM.

[[Page 75764]]

* * * * * * *
63.10(c)(7)-(8)................. Additional Yes............... .................................
Recordkeeping
Requirements for CMS--
Identifying
Exceedances and Excess
Emissions.
63.10(c)(10).................... Recordkeeping Nature No................ See Sec. 63.11501(c)(1)(vii)
and Cause of and (viii) for malfunctions
Malfunctions. recordkeeping requirements.
63.10(c)(11).................... Recording Corrective No................ See Sec. 63.11501(c)(1)(vii)
Actions. and (viii) for malfunctions
recordkeeping requirements.
63.10(c)(12).................... ....................... Yes............... .................................
63.10(c)(15).................... Use of SSM Plan........ No................ .................................

* * * * * * *
63.10(d)(5)..................... SSM Reports............ No................ See Sec. 63.11501(d)(8) for
reporting requirements for
malfunctions.

* * * * * * *
----------------------------------------------------------------------------------------------------------------

[FR Doc. 2012-30698 Filed 12-20-12; 8:45 am]
BILLING CODE 6560-50-P

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.