Alison Keane \<akeane@paint.org\>

09/13/2005 08:25 AM To

Group A-AND-R-DOCKET@EPA

cc

Dave Darling \<ddarling@paint.org\>, coyler.rick@epamail.epa.gov

bcc

Subject RE: Docket OAR-2004-0094

Please file the comments below submitted under #OAR-2002-0038 to the

intended Docket for this rulemaking, Docket #OAR-2004-0094. Thank you
for

your attention to this matter, I apologize for any inconvience. A
correct

hard copy will be sent by mail.

Alison A. Keane, Esq.

Counsel, Government Affairs

National Paint and Coatings Association, Inc.

202-462-6272 ext. 248

From: Alison Keane

Sent: Monday, September 12, 2005 9:17 AM

To: a-and-r-docket@epa.gov

Cc: Dave Darling; coyler.rick@epa.gov

Subject: Final Comments on SMMP Reconsideration.doc

September 12, 2005

Air & Radiation Docket Information Center

Attn: Docket \# OAR-2002-0038

US EPA Mailcode 6102(T)

1200 Pennsylvania Ave., NW

Washington, DC 20460

RE: National Emission Standards for Hazardous Air Pollutants; General

Provisions; Proposed Rule

To Whom it May Concern:

The National Paint and Coatings Association (NPCA)\[1\] submits these

comments in response to the above referenced rulemaking (hereinafter

referred to as the "Proposed Rule")\[2\]. While NPCA supports the
Proposed

Rule's revisions and clarifications to the Clean Air Act's (CAA) General

Provisions, NPCA objects to EPA's granting of the Proposed Rule's

underlying Petition for Reconsideration.

In addition to NPCA's work with the EPA on numerous National Emissions

Standards for Hazardous Air Pollutants (NESHAP), such as the
Miscellaneous

Organic Chemical and Miscellaneous Coating Manufacturing Maximum

Achievable Control Technology (MACT) standards, as well as the various

Surface Coating MACT standards, NPCA has been closely involved in the

numerous rulemaking activities regarding the General Provisions and is
an

intervenor on behalf of EPA in current Circuit Court case. NPCA

reiterates here many of the points raised in previous comments on the

original proposed rule, as well as subsequent settlement agreement and

proposed amendments to the General Provisions. Unlike NPCA, the National

Resources Defense Council (NRDC) has not participated in these

rulemakings. Thus, while the outcome of EPA's further consideration of

the final rule ended up being to the benefit of NPCA member companies,

NPCA continues to object to EPA's consideration of petitions from

organizations that do not participate in the underlying rulemakings.
This

violates the CAA, the Administrative Procedures Act (APA), and generally

accepted procedures of meaningful stakeholder involvement in Agency

rulemaking.

The Petition for Reconsideration Should Have Been Denied

As stated, the Proposed Rule is in response to a Petition for

Reconsideration filed by NRDC. This Petition for Reconsideration was in

response to final amendments promulgated pursuant to a settlement

agreement with the Sierra Club in response to a Petition for Review in
the

United States Court of Appeals for the District of Columbia Circuit of a

final rule promulgated in 2002. Among other things, Sierra Club demanded

changes to the General Provisions language with respect to Start-up,

Shut-Down and Malfunction (SSM) plans. Sierra Club, however, had not

adequately exhausted its administrative remedies before filing its

petition, as Sierra Club did not comment on the underlying rulemaking.

Instead of addressing the lack of jurisdiction the Court had over Sierra

Club's Petition for Review, EPA proposed a settlement agreement and

proposed changes to key provisions of the final rule. Appropriately,

based on comments received on the proposed rule, the settlement
agreement

changes were rejected in a final rule promulgated in 2003.

Now comes NRDC, who had ample opportunity to participate in any one of
the

numerous rulemakings and iterations of the subject General Provisions

amendments, but chose not to do so, requesting reconsideration of a
final

rule vetted through no less than 3 notice and comment periods. Despite

this, EPA granted NRDC's Petition, which opposes the 2003 final rule

specifying that public access to SSM plans would only be afforded when

requests for such were "specific and reasonable." It was not

impracticable for NRDC to comment on this approach during the first two

rulemakings. Nor did the grounds for this objection arise after the

period for public comment on the previous rulemakings. Simply put, this

information was available at the time of the various proposals -- thus,

NRDC did not meet the CAA criteria for reconsideration and EPA should
have

denied the request.

EPA's consistent disregard for administrative procedure in this case is

objectionable and while NPCA supports the Proposed Rule's provisions, we

continue to object to these clear contraventions of the CAA and APA.

NPCA Supports Reliance on the General Provisions "General Duty" Clause
to

Minimize Emissions During SSM Periods

The MACT standards require facilities to develop and implement written
SSM

plans (SSMP) that describe general procedures for operating and

maintaining the source during periods of SSM. The SSMP is a tool
utilized

by facilities specific to their operations in an attempt to comply with

the General Duty Clause to minimize emissions during SSM periods -- it
is

not an applicable requirement per se. In order to delineate this, EPA

inserted language in the General Provisions in order to clarify the
intent

-- establishing that a source remains in compliance with regulations as

long as it meets the current standard or complies with their SSMP. This

parenthetical language was specifically inserted by EPA in order to make

clear that the general duty to minimize emissions meant compliance with

the actual emission standards or compliance with a properly drafted
SSMP,

even though compliance with the MACT standards themselves during a
period

of start-up, shut-down, or malfunction may not be practicable. This is

the correct interpretation, given the fact that the purpose of the SSMP
is

to minimize emissions when the source is experiencing an event during

which compliance with the emission standards is not feasible -- the duty

imposed by the general duty clause. Without this language facilities may

be subject to enforcement actions even though they have met their duty
to

minimize emissions during SSM periods under the General Duty Clause.

Given that the plan is in anticipation that certain events and

malfunctions can have unanticipated outcomes, these plans must remain

flexible and be changed in response to specific scenarios. The SSMP is

meant to provide for minimizing emissions during an event where the
source

can not maintain applicable emission standards. While the SSMP may in

fact effectuate this outcome, it can not ensure this outcome. Thus, it

can not be construed as an applicable requirement, but only as evidence
as

to whether a source met its obligation under the General Duty Clause.

Similarly, a source could not use the plan itself as sole proof of

compliance with the general duty to minimize emissions. Sources must

report periods of SSM and reliance on the SSMP -- following a deficient

plan, for instance, would be evidence that a source does not have an

adequate program to comply with the General Duty Clause. Thus, NPCA

supports EPA's further clarification, retracting the provision that the

SSMP must be implemented during periods of SSM, appropriately relying on

the CAA's General Duty Clause as the applicable requirement for the

minimization of emissions.

NPCA Supports Reliance on CAA Section 114(a) For Submission of SSMP

NRDC, and Sierra Club before them, proposed making the SSMP an
applicable

requirement, however, and to mandate that the SSMP be publicly
available.

For the reasons stated above, mandating the SSMP as an applicable

requirement and making the plans available to the public may subject

facilities to unwarranted enforcement actions, including citizen action

suits under the CAA, not to mention costly and burdensome recordkeeping

and reporting requirements. SSMP are often lengthy documents with large

amounts of cross-referencing to other source specific documents and

processes. In addition, they generally contain material that is deemed
to

be confidential business information (CBI). Furthermore, as discussed,

they are revised appropriately in response to SSM events, as well as

process modifications, operational changes and a facility's ongoing

responsibility to use good air pollution control practices. Submission
of

the original and even subsequently revised SSMP, on the off-chance that

some member of the public requested it, is unduly burdensome, costly,
and

places CBI information in jeopardy for no environmental gain. In fact,

mandating that the plans and revisions are submitted to the permitting

authority appears to undermine the Government Paperwork Elimination Act

(GPEA),\[3\] which serves to protect stakeholders from regulations where

there is insufficient justification for stringent and expensive
provisions

governing recordkeeping and reporting. Lastly, mandating public

submission of SSMPs poses a security risk to facilities and provides a

disincentive for sites to specify sensitive operational information in

their plans. As SSMPs are not only road maps on how to shut-down a

facility, they are also road maps to obstructing plans on corrective

actions to address SSM events. Thus, in the hands of someone with

wrongful intent, these plans pose a security risk that far outweighs any

perceived benefit to making them public. Addressing the information

request on a case-by-case basis, as Section 114(c) allows -- providing
that

EPA or an authorized permitting authority can request information such
as

an SSMP, whereby that information is then accessible by the public --

provides the requisite access needed, while not further burdening

facilities and diverting needed resources that could be used in
compliance

with the actual standards. Thus, NPCA supports EPA's removal of the

provision in the final rule that requires a permitting authority to
obtain

an SSMP under certain conditions, denying NRDC's request to mandate

unlimited access to SSMPs.

NPCA Supports Conforming Change to Start-Up and Shut-Down Recordkeeping

Requirements

NPCA supports EPA's decision to correct the language of the General

Provisions, relieving a facility from recordkeeping requirements for

start-up and shut-down events, which do not exceed applicable standards.

The inclusion in the current regulation of recordkeeping for these
events,

when reporting these events was already addressed in the final rule was

clearly inadvertent and unnecessary, EPA appropriately corrected this

problem. NPCA remains concerned, however, that the proposed language

still requires this added reporting burden for malfunctions. This

information is redundant given the requirements under 40 CFR

63.10(e)(3)(v) for continuous monitoring. This provision requires

facilities to report malfunctions that result in an exceedance of
emission

limits. Thus, requiring a report of such under both provisions is

duplicative and unnecessary.

NPCA appreciates the opportunity to submit these comments on the
Proposed

Rule. In advance, thank you for your consideration. If you have any

questions or need further information, please do not hesitate contact me

or Dave Darling at 202.462.6272.

Sincerely,

/s/ /s/

Alison A. Keane, Esq. David F. Darling, P.E.

Counsel, Government Affairs Director, Environmental Affairs

cc: Rick Colyer, EPA

\*\* Sent electronically and in hard-copy \*\*

\[1\] NPCA is a voluntary, non-profit industry association originally

organized in 1888 and comprised today of over 400 member companies who

manufacture consumer paint products and industrial coatings, and the raw

materials used in their manufacture. NPCA membership companies

collectively produce some 90% of the total dollar volume of
architectural

paints and industrial coatings produced in the United States. As the

preeminent organization representing the paint and coatings industry in

the United States, NPCA's primary role is to serve as ally and advocate
on

legislative, regulatory and judicial issues at the federal, state, and

local levels.

\[2\] 70 Federal Register 43992 (July 29, 2005).

\[3\] Pub. L. No. 105-277, Title XVII (Oct. 21, 1998).