22566 Federal Register / Vol. 76, No. 77 / Thursday, April 21, 2011 / Rules and Regulations 

1We addressed two additional source categories 

as part of this proposed rule, Hard and Decorative 

Chromium Electroplating and Chromium Anodizing 

Tanks and Steel Pickling—HCl Process Facilities 

and Hydrochloric Acid Regeneration, and we plan 

to take final action on those two source categories 

in June 2011. 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 63 

[EPA–HQ–OAR–2010–0600; FRL–9291–3] 

RIN 2060–AO91 

National Emission Standards for 

Hazardous Air Pollutant Emissions: 

Group I Polymers and Resins; Marine 

Tank Vessel Loading Operations; 

Pharmaceuticals Production; and the 

Printing and Publishing Industry 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is taking final action for 

four national emission standards for 

hazardous air pollutants (NESHAP) that 

regulate 12 industrial source categories 

evaluated in our risk and technology 

review. The four NESHAP include: 

National Emissions Standards for Group 

I Polymers and Resins (Butyl Rubber 

Production, Epichlorohydrin Elastomers 

Production, Ethylene Propylene Rubber 

Production, HypalonTM Production, 

Neoprene Production, Nitrile Butadiene 

Rubber Production, Polybutadiene 

Rubber Production, Polysulfide Rubber 

Production, and Styrene Butadiene 

Rubber and Latex Production); Marine 

Tank Vessel Loading Operations; 

Pharmaceuticals Production; and The 

Printing and Publishing Industry. 

For some source categories, EPA is 

finalizing our decisions concerning the 

residual risk and technology reviews. 

For the Marine Tank Vessel Loading 

Operations NESHAP and the Group I 

Polymers and Resins NESHAP, EPA is 

finalizing emission standards to address 

certain emission sources not previously 

regulated under the NESHAP. EPA is 

also finalizing changes to the 

Pharmaceuticals Production NESHAP to 

correct an editorial error. For each of the 

four NESHAP, EPA is finalizing 

revisions to the regulatory provisions 

related to emissions during periods of 

startup, shutdown, and malfunction and 

promulgating provisions addressing 

electronic submission of emission test 

results. 

DATES: This final action is effective on 

April 21, 2011. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

No. EPA–HQ–OAR–2010–0600. All 

documents in the docket are listed on 

the http://www.regulations.gov Web 

site. Although listed in the index, some 

information is not publicly available, 

e.g., confidential business information 

(CBI) or other information whose 

disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, is not placed on 

the Internet, and will be publicly 

available only in hard copy form. 

Publicly available docket materials are 

available either electronically through 

http://www.regulations.gov, or in hard 

copy at the EPA Docket Center, EPA 

West Building, Room Number 3334, 

1301 Constitution Ave., NW., 

Washington, DC. The Public Reading 

Room hours of operation are 8:30 a.m. 

to 4:30 p.m. Eastern Standard Time 

(EST), Monday through Friday. The 

telephone number for the Public 

Reading Room is (202) 566–1744, and 

the telephone number for the Air and 

Radiation Docket and Information 

Center is (202) 566–1742. 

FOR FURTHER INFORMATION CONTACT: For 

questions about this final action, contact 

Ms. Mary Tom Kissell, Office of Air 

Quality Planning and Standards, Sector 

Policies and Programs Division, 

Refining and Chemicals Group (E143– 

01), U.S. Environmental Protection 

Agency, Research Triangle Park, NC 

27711; telephone number: (919) 541– 

4516; fax number: (919) 685–3219; and 

e-mail address: kissell.mary@epa.gov. 

For additional contact information, see 

the following SUPPLEMENTARY

INFORMATION section. 

SUPPLEMENTARY INFORMATION: For 

specific information regarding the 

modeling methodology, contact Ms. 

Elaine Manning, Office of Air Quality 

Planning and Standards, Health and 

Environmental Impacts Division, Air 

Toxics Assessment Group (C539–02), 

U.S. Environmental Protection Agency, 

Research Triangle Park, NC 27711; 

telephone number: (919) 541–5499; fax 

number: (919) 541–0840; and e-mail 

address: manning.elaine@epa.gov. For 

information about the applicability of 

these four NESHAP to a particular 

entity, contact the appropriate person 

listed in Table 1 to this preamble. 

TABLE 1—LIST OF EPA CONTACTS FOR THE NESHAP ADDRESSED IN THIS ACTION

NESHAP for: OECA contact 1 OAQPS contact 2

Group I Polymers and Resins ............................ Marcia Mia (202) 564–7042, 

mia.marcia@epa.gov.

Nick Parsons, (919) 541–5372, parsons.nick@epa.gov. 

Marine Tank Vessel Loading Operations ........... Maria Malave, (202) 564–7027, 

malave.maria@epa.gov.

Steve Shedd, (919) 541–5397, 

shedd.steve@epa.gov. 

Pharmaceuticals Production ............................... Marcia Mia, (202) 564–7042, 

mia.marcia@epa.gov.

Nick Parsons, (919) 541–5372, parsons.nick@epa.gov. 

The Printing and Publishing Industry ................. Rafael Sanchez, (202) 564–7028, 

sanchez.rafael@epa.gov.

David Salman, (919) 541–5402, 

salman.dave@epa.gov. 

1 OECA stands for EPA’s Office of Enforcement and Compliance Assurance. 2 OAQPS stands for EPA’s Office of Air Quality Planning and Standards. 

Background Information Document. 

On October 21, 2010 (75 FR 65068), EPA 

proposed revisions to six NESHAP that 

regulate 16 industrial source categories 

evaluated in our risk and technology 

review. The six NESHAP and industrial 

source categories are: National 

Emissions Standards for Hazardous Air 

Pollutant Emissions: Hard and 

Decorative Chromium Electroplating 

and Chromium Anodizing Tanks; Group 

I Polymers and Resins; Marine Tank 

Vessel Loading Operations; 

Pharmaceuticals Production; The 

Printing and Publishing Industry; and 

Steel Pickling—HCl Process Facilities 

and Hydrochloric Acid Regeneration. In 

this action, we are finalizing decisions 

for four of these NESHAP—Group I 

Polymers and Resins; Marine Tank 

Vessel Loading Operations; 

Pharmaceuticals Production; and The 

Printing and Publishing Industry. We 

will finalize our decisions for the Hard 

and Decorative Chromium 

Electroplating and Chromium 

Anodizing Tanks NESHAP and the Steel 

Pickling—HCl Process Facilities and 

Hydrochloric Acid Regeneration in a 

future rulemaking.1 A summary of the 

public comments on the proposal, and 

EPA’s responses to the comments, is 


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available in Docket ID No. EPA–HQ– 

OAR–2010–0600. 

Organization of This Document. The 

following outline is provided to aid in 

locating information in the preamble. 

I. General Information 

A. Does this action apply to me? 

B. Where can I get a copy of this 

document? 

C. Judicial Review 

II. Background 

III. Summary of the Final Rules 

A. What are the final rule amendments for 

the Group I Polymers and Resins source 

categories? 

B. What are the final rule amendments for 

the Marine Tank Vessel Loading 

Operations (MTVLO) source category? 

C. What are the final rule amendments for 

the Pharmaceuticals Production source 

category? 

D. What are the final rule amendments for 

the Printing and Publishing Industry 

source category? 

E. What are the requirements during 

periods of startup, shutdown, and 

malfunction? 

F. What are the requirements for 

submission of emissions test results to 

EPA? 

G. What are the effective and compliance 

dates of the standards? 

IV. Summary of Significant Changes Since 

Proposal 

A. What changes did we make to the risk 

assessments for these source categories 

since proposal? 

B. What changes did we make to the Group 

I Polymers and Resins MACT since 

proposal? 

C. What changes did we make to the 

Marine Tank Vessel Loading Operations 

MACT since proposal? 

V. Summary of Significant Comments and 

Responses 

A. EPA’s Authority Under CAA Section 

112 

B. Group I Polymers and Resins 

C. Marine Tank Vessel Loading Operations 

D. Startup, Shutdown, and Malfunction 

(SSM) Requirements 

VI. Impacts of the Final Rules 

VII. Statutory and Executive Order Reviews 

A. Executive Orders 12866: Regulatory 

Planning and Review, and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 

B. Paperwork Reduction Act 

C. Regulatory Flexibility Act 

D. Unfunded Mandates Reform Act 

E. Executive Order 13132: Federalism 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

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. Does this action apply to me? 

Regulated Entities. Categories and 

entities potentially regulated by this 

action include: 

TABLE 2—NESHAP AND INDUSTRIAL SOURCE CATEGORIES AFFECTED BY THIS FINAL ACTION

NESHAP and source category NAICS1 code MACT 2 code 

Group I Polymers and Resins: 

Butyl Rubber Production .................................................................................................................................. 325212 1307 

Epichlorohydrin Elastomers Production ........................................................................................................... 325212 1311 

Ethylene Propylene Rubber Production ........................................................................................................... 325212 1313 

HypalonTM Production ...................................................................................................................................... 325212 1315 

Neoprene Production ........................................................................................................................................ 325212 1320 

Nitrile Butadiene Rubber Production ................................................................................................................ 325212 1321 

Polybutadiene Rubber Production .................................................................................................................... 325212 1325 

Polysulfide Rubber Production ......................................................................................................................... 325212 1332 

Styrene Butadiene Rubber and Latex Production ........................................................................................... 325212 1339 

Marine Tank Vessel Loading Operations ................................................................................................................ 4883 0603 

Pharmaceuticals Production .................................................................................................................................... 3254 1201 

The Printing and Publishing Industry ...................................................................................................................... 32311 0714 

1 North American Industry Classification System. 2 Maximum Achievable Control Technology. 

Table 2 is not intended to be 

exhaustive, but rather provides a guide 

for readers regarding entities likely to be 

affected by the final action for the 

source categories listed. To determine 

whether your facility would be affected, 

you should examine the applicability 

criteria in the appropriate NESHAP. If 

you have any questions regarding the 

applicability of any of these NESHAP, 

please contact the appropriate person 

listed in Table 1 of this preamble in the 

preceding FOR FURTHER INFORMATION

CONTACT section. 

B. Where can I get a copy of this 

document? 

In addition to being available in the 

docket, an electronic copy of this final 

action will also be available on the 

World Wide Web (www) through the 

Technology Transfer Network (TTN). 

Following signature, a copy of the final 

action will be posted on the TTN’s 

policy and guidance page for newly 

proposed and promulgated rules at the 

following address: http://www.epa.gov/ 

ttn/atw/rrisk/rtrpg.html. The TTN 

provides information and technology 

exchange in various areas of air 

pollution control. 

Additional information is available on 

the residual risk and technology review 

(RTR) Web page at http://www.epa.gov/ 

ttn/atw/rrisk/rtrpg.html. This 

information includes source category 

descriptions and detailed emissions and 

other data that were used as inputs to 

the risk assessments. 

C. Judicial Review 

Under section 307(b)(1) of the Clean 

Air Act (CAA), judicial review of this 

final action is available only by filing a 

petition for review in the United States 

Court of Appeals for the District of 

Columbia Circuit by June 20, 2011. 

Under section 307(b)(2) of the CAA, the 

requirements established by these final 

rules may not be challenged separately 

in any civil or criminal proceedings 

brought by EPA to enforce the 

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 


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22568 Federal Register / Vol. 76, No. 77 / Thursday, April 21, 2011 / Rules and Regulations 

section also provides a mechanism for 

us to convene a proceeding for 

reconsideration, ‘‘[i]f the person raising 

an objection can demonstrate to EPA 

that it was impracticable to raise such 

objection within [the period for public 

comment] or if the grounds for such 

objection arose after the period for 

public comment (but within the time 

specified for judicial review) and if such 

objection is of central relevance to the 

outcome of the rule.’’ Any person 

seeking to make such a demonstration to 

us should submit a Petition for 

Reconsideration to the Office of the 

Administrator, U.S. EPA, Room 3000, 

Ariel Rios Building, 1200 Pennsylvania 

Ave., NW., Washington, DC 20460, with 

a copy to both the person(s) listed in the 

preceding FOR FURTHER INFORMATION

CONTACT section, and the Associate 

General Counsel for the Air and 

Radiation Law Office, Office of General 

Counsel (Mail Code 2344A), U.S. EPA, 

1200 Pennsylvania Ave., NW., 

Washington, DC 20460. 

II. Background 

Section 112 of the CAA establishes a 

two-stage regulatory process to address 

emissions of hazardous air pollutants 

(HAP) from stationary sources. In the 

first stage, after EPA has identified 

categories of sources emitting one or 

more of the HAP listed in section 112(b) 

of the CAA, section 112(d) calls for us 

to promulgate NESHAP for those 

sources. ‘‘Major sources’’ are those that 

emit, or have the potential to emit, any 

single HAP at a rate of 10 tons per year 

(TPY) or more, or 25 TPY or more of any 

combination of HAP. For major sources, 

these technology-based standards must 

reflect the maximum degree of emission 

reductions of HAP achievable (after 

considering cost, energy requirements, 

and non-air quality health and 

environmental impacts), and are 

commonly referred to as maximum 

achievable control technology (MACT) 

standards. 

For MACT standards, the statute 

specifies certain minimum stringency 

requirements, which are referred to as 

floor requirements, and may not be 

based on cost considerations. See CAA 

section 112(d)(3). For new sources, the 

MACT floor cannot be less stringent 

than the emission control that is 

achieved in practice by the best 

controlled similar source. The MACT 

standards for existing sources can be 

less stringent than floors for new 

sources, but they cannot be less 

stringent than the average emission 

limitation achieved by the bestperforming 12 percent of existing 

sources in the category or subcategory 

(or the best-performing five sources for 

categories or subcategories with fewer 

than 30 sources). In developing MACT, 

we must also consider control options 

that are more stringent than the floor, 

under CAA section 112(d)(2). We may 

establish standards more stringent than 

the floor, based on the consideration of 

the cost of achieving the emissions 

reductions, any non-air quality health 

and environmental impacts, and energy 

requirements. In promulgating MACT 

standards, CAA section 112(d)(2) directs 

us to consider the application of 

measures, processes, methods, systems, 

or techniques that reduce the volume of 

or eliminate HAP emissions through 

process changes, substitution of 

materials, or other modifications; 

enclose systems or processes to 

eliminate emissions; collect, capture, or 

treat HAP when released from a process, 

stack, storage, or fugitive emissions 

point; and/or are design, equipment, 

work practice, or operational standards. 

In the second stage of the regulatory 

process, we undertake two different 

analyses, as required by the CAA: 

Section 112(d)(6) of the CAA calls for us 

to review these technology-based 

standards, and to revise them ‘‘as 

necessary (taking into account 

developments in practices, processes, 

and control technologies)’’ no less 

frequently than every 8 years; and 

within 8 years after promulgation of the 

technology standards, CAA section 

112(f) calls for us to evaluate the risk to 

public health remaining after 

application of the technology-based 

standards and to revise the standards, if 

necessary, to provide an ample margin 

of safety to protect public health or to 

prevent, taking into consideration costs, 

energy, safety, and other relevant 

factors, an adverse environmental effect. 

In doing so, EPA may adopt standards 

equal to existing MACT standards if 

EPA determines that the existing 

standards are sufficiently protective. 

NRDC v. EPA, 529 F.3d 1077, 1083 (D.C. 

Cir. 2008). 

On October 21, 2010, EPA published 

a proposed rule and supplemental 

notice of proposed rulemaking in the 

Federal Register for these four NESHAP 

that took into consideration the RTR 

analyses. For these NESHAP—Group I 

Polymers and Resins, Marine Tank 

Vessel Loading Operations, 

Pharmaceuticals Production, and The 

Printing and Publishing Industry—this 

action provides EPA’s final 

determinations pursuant to the RTR 

provisions of CAA section 112. In 

addition, we are promulgating 

amendments as follows: 

• For the Marine Tank Vessel Loading 

Operations NESHAP and Group I 

Polymers and Resins NESHAP, pursuant 

to CAA section 112(d)(2) and (3), EPA 

is finalizing revisions to address certain 

emission sources not currently regulated 

under the standards. 

• For the Pharmaceuticals Production 

NESHAP, EPA is finalizing changes to 

correct an editorial error. 

• For each of the four NESHAP, EPA 

is finalizing revisions to requirements in 

each NESHAP related to emissions 

during periods of startup, shutdown, 

and malfunction (SSM). 

• For each of the four NESHAP, EPA 

is finalizing revisions to requirements in 

each NESHAP related to electronic 

reporting. 

III. Summary of the Final Rules 

A. What are the final rule amendments 

for the Group I Polymers and Resins 

source categories? 

The National Emission Standards for 

Hazardous Air Pollutant Emissions: 

Group I Polymers and Resins were 

promulgated on September 5, 1996 

(62 FR 46925), and codified at 40 CFR 

part 63, subpart U. The Group I 

Polymers and Resins MACT standards 

apply to major sources and regulate 

HAP emissions from nine source 

categories: Butyl Rubber Production, 

Epichlorohydrin Elastomers Production, 

Ethylene Propylene Rubber Production, 

HypalonTM Production, Neoprene 

Production, Nitrile Butadiene Rubber 

(NBR) Production, Polybutadiene 

Rubber Production, Polysulfide Rubber 

Production, and Styrene Butadiene 

Rubber and Latex Production. 

The Group I Polymers and Resins 

MACT standards regulate HAP 

emissions resulting from the production 

of elastomers (i.e., synthetic rubber). An 

elastomer is a synthetic polymeric 

material that can stretch to at least twice 

its original length and then return 

rapidly to approximately its original 

length when released. Elastomers are 

produced via a polymerization/ 

copolymerization process, in which 

monomers undergo intermolecular 

chemical bond formation to form a very 

large polymer molecule. Generally, the 

production of elastomers entails four 

processes: (1) Raw material (i.e., 

solvent) storage and refining; (2) 

polymer formation in a reactor (either 

via the solution process, where 

monomers are dissolved in an organic 

solvent, or the emulsion process, where 

monomers are dispersed in water using 

a soap solution); (3) stripping and 

material recovery; and (4) finishing (i.e., 

blending, aging, coagulation, washing, 

and drying). 

Sources of HAP emissions from 

elastomers production include raw 

material storage vessels, front-end 


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Federal Register / Vol. 76, No. 77 / Thursday, April 21, 2011 / Rules and Regulations 22569 

2We previously re-adopted the existing MACT 

standards to satisfy section 112(f) of the CAA for 

four Group I Polymers and Resins source 

categories—Neoprene Rubber Production; Ethylene 

Propylene Rubber Production; Butyl Rubber 

Production; and Polysulfide Rubber Production. See 

73 FR 76220, published December 16, 2008. 

3We note there are no longer any operating 

facilities in the United States that produce 

HypalonTM, and we do not anticipate that any will 

begin operation in the future. 

process vents, back-end process 

operations, wastewater operations, and 

equipment leaks. The ‘‘front-end’’ 

processes include pre-polymerization, 

reaction, stripping, and material 

recovery operations; and the ‘‘back-end’’ 

process includes all operations after 

stripping (predominantly drying and 

finishing). Typical control devices used 

to reduce organic HAP emissions from 

front-end process vents include flares, 

incinerators, absorbers, carbon 

adsorbers, and condensers. Emissions 

from storage vessels are controlled by 

floating roofs or by routing them to a 

control device. 

While emissions from back-end 

process operations can be controlled 

with control devices such as 

incinerators, the most common method 

of reducing these emissions is the 

pollution prevention method of 

reducing the amount of residual HAP 

that is contained in the raw product 

going to the back-end operations. 

Emissions from wastewater are 

controlled by a variety of methods, 

including equipment modifications 

(e.g., fixed roofs on storage vessels and 

oil water separators; covers on surface 

impoundments, containers, and drain 

systems), treatment to remove the HAP 

(steam stripping, biological treatment), 

control devices, and work practices. 

Emissions from equipment leaks are 

typically reduced by leak detection and 

repair work practice programs, and in 

some cases, by equipment 

modifications. 

For these five Group I Polymers and 

Resins 2 source categories— 

Epichlorohydrin Elastomers Production; 

HypalonTM Production; Polybutadiene 

Rubber Production; Styrene Butadiene 

Rubber and Latex Production; and NBR 

Production—we have determined that 

the current MACT standards reduce risk 

to an acceptable level, provide an ample 

margin of safety to protect public health, 

and prevent adverse environmental 

effects. We are, therefore, re-adopting 

the existing MACT standards to satisfy 

section 112(f) of the CAA. We have also 

determined that there have been no 

significant developments in practices, 

processes, or control technologies since 

promulgation of the MACT standards, 

and that, therefore, it is not necessary to 

revise the MACT standard pursuant to 

CAA section 112(d)(6).3

We are eliminating the subcategories 

in the Butyl Rubber source category 

(Butyl Rubber and Halobutyl Rubber) 

because the technical differences that 

distinguished the subcategories when 

the original rule was developed no 

longer exist. The existing requirements 

for facilities producing either butyl 

rubber or halobutyl rubber as the 

primary product are identical, and, 

therefore, the removal of the 

subcategory distinction does not affect 

these requirements. The source category 

remains named Butyl Rubber 

Production. We are establishing 

standards at the MACT floor level of 

control for previously unregulated 

hydrochloric acid (HCl) emissions from 

front-end process vents in the Butyl 

Rubber and Ethylene Propylene Rubber 

source categories. We are also 

establishing standards at the MACT 

floor level of control for previously 

unregulated back-end process 

operations in the Epichlorohydrin 

Elastomers, NBR, Neoprene, and Butyl 

Rubber source categories. 

The numerical emission standards 

that are being finalized in this action for 

new and existing major source facilities 

in the Group 1 Polymers and Resins 

source categories are shown in Table 3 

of this preamble. 

BILLING CODE 6560–50–P 


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BILLING CODE 6560–50–C 


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We are finalizing changes to the 

Group I Polymers and Resins MACT 

standards to eliminate the SSM 

exemption. These changes revise Table 

1 in 40 CFR part 63, subpart U to 

indicate that several requirements of the 

40 CFR part 63 General Provisions 

related to periods of SSM do not apply. 

We are adding provisions to the Group 

I Polymers and Resins MACT standards 

to operate in a manner that minimizes 

emissions, removing the SSM plan 

requirement, removing the explanation 

of applicability of emissions standards 

during periods of SSM, revising the 

definition of initial start-up to remove 

references to malfunctions, clarifying 

the required conditions for performance 

tests, and revising the SSM-associated 

monitoring, recordkeeping, and 

reporting requirements to require 

reporting and recordkeeping for periods 

of malfunction. We are also adding 

provisions to provide an affirmative 

defense against civil penalties for 

exceedances of emission standards 

caused by malfunctions, as well as 

criteria for establishing the affirmative 

defense. 

We are also requiring the electronic 

submittal of performance test data to 

increase the ease and efficiency of data 

submittal and to improve data 

accessibility. Specifically, owners and 

operators of Group I Polymers and 

Resins facilities are required to submit 

electronic copies of applicable reports of 

performance tests to EPA’s WebFIRE 

database through an electronic 

emissions test report structure called the 

Electronic Reporting Tool (ERT). This 

requirement to submit performance test 

data electronically to EPA does not 

require any additional performance 

testing, and applies only to those 

performance tests conducted using test 

methods that are supported by the ERT. 

We anticipate that the front-end 

process vent limits will not require 

additional control to meet the floor-level 

standards for HCl emissions from frontend process operations at the facilities 

in the Butyl Rubber and Ethylene 

Propylene Rubber source categories. We 

anticipate that facilities in the Butyl 

Rubber, Epichlorohydrin Elastomers, 

Neoprene Rubber, and NBR source 

categories will not require additional 

control to meet the floor-level standards 

for the back-end process operations. 

To demonstrate compliance with the 

front-end process vent HCl emissions 

provisions of the final rule, the facility 

owner or operator will be required to 

submit an initial notification of the 

calculated front-end HCl limit for the 

facility and to perform and record 

monthly calculations of the mass of HCl 

emissions and the mass of elastomer 

product produced. These recorded 

monthly calculations are required to be 

submitted in the semi-annual 

compliance reports already required by 

existing provisions of the rule. 

To demonstrate compliance with the 

back-end process operation provisions 

of the final rule, the facility owner or 

operator will be required to submit an 

initial notification of the calculated 

back-end limit for the facility, and to 

perform and record monthly 

calculations of the mass of HAP 

emissions and the mass of elastomer 

product produced. These recorded 

monthly calculations are required to be 

submitted in the semi-annual 

compliance reports already required by 

existing provisions of the rule. 

The final changes to the Group I 

Polymers and Resins MACT standards 

are not expected to result in substantial 

emissions reduction or economic 

impacts. We have determined that 

facilities in the Group 1 Polymers and 

Resins categories can meet the 

applicable emissions limits at all times, 

including periods of startup and 

shutdown, with the exception of the 

organic HAP emissions limits applicable 

to front-end process vents at facilities in 

the Butyl Rubber and Ethylene 

Propylene Rubber source categories. We 

have determined that facilities in the 

Butyl Rubber and Ethylene Propylene 

Rubber source categories cannot meet 

the applicable organic HAP emission 

limits applicable to continuous frontend process vents during periods of 

shutdown. Therefore, we are 

establishing alternative emissions limits 

during these periods. No substantial 

changes in costs to industry are 

predicted. 

B. What are the final rule amendments 

for the Marine Tank Vessel Loading 

Operations (MTVLO) source category? 

MTVLO are loading operations 

conducted at marine terminals in which 

liquid commodities, such as crude oil, 

gasoline, and other fuels or chemicals, 

are pumped from the terminal’s large, 

above-ground storage tanks through a 

network of pipes into a storage 

compartment (tank) on the vessel. 

Emissions occur as vapors are displaced 

from the tank as it is being filled. Most 

MTVLO facilities are either independent 

terminals or are associated with 

synthetic organic chemical 

manufacturers or with petroleum 

refineries (although MTVLO at 

petroleum refineries are part of the 

Petroleum Refinery source category). 

For these MTVLO facilities, we have 

determined that the current MACT 

standards reduce risk to an acceptable 

level, provide an ample margin of safety 

to protect public health, and prevent 

adverse environmental effects. We are, 

therefore, re-adopting the existing 

MACT standards to satisfy section 112(f) 

of the CAA. We have also determined 

that the costs of the only significant 

development in practices, processes, or 

control technologies since promulgation 

of the MACT standards is 

disproportionate to the emission 

reduction that would be achieved, and 

we are not adopting additional 

technology standards pursuant to CAA 

section 112(d)(6). 

We are finalizing changes to the 

MTVLO MACT standards to require 

standards for two subcategories of 

MTVLO facilities for which the current 

MTVLO MACT standards do not 

include emission standards. These 

subcategories are facilities with MTVLO 

that emit less than 10/25 TPY of HAP 

that are located at a major source of 

HAP emissions and facilities located 

more than 0.5 miles from shore. For 

these source categories, we are adding a 

requirement for the facilities to perform 

submerged fill. This requirement is the 

MACT floor level of control. 

We are finalizing changes to the 

MTVLO MACT standards to eliminate 

the SSM exemption. These changes 

revise Table 1 in 40 CFR part 63, 

subpart Y to indicate that several 

requirements of the 40 CFR part 63 

General Provisions related to periods of 

SSM do not apply. We are adding 

provisions to the MTVLO MACT 

standards to operate in a manner that 

minimizes emissions, clarifying the 

required conditions for performance 

tests, and revising the SSM-associated 

monitoring, recordkeeping, and 

reporting requirements to require 

reporting and recordkeeping for periods 

of malfunction. We are also adding 

provisions to provide an affirmative 

defense against civil penalties for 

exceedances of emission standards 

caused by malfunctions, as well as 

criteria for establishing the affirmative 

defense. 

Additionally, we are requiring the 

electronic submittal of performance test 

data to increase the ease and efficiency 

of data submittal and to improve data 

accessibility. Specifically, owners and 

operators of MTVLO are required to 

submit electronic copies of applicable 

reports of performance tests to EPA’s 

WebFIRE database through an electronic 

emissions test report structure called the 

ERT. This requirement to submit 

performance test data electronically to 

EPA does not require any additional 

performance testing, and applies only to 

those performance tests conducted 

using test methods that are supported by 

the ERT. The final changes to the 


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4 46 CFR 153.282. 

MTVLO MACT standards will have 

little or no impact on HAP emissions or 

costs because facilities currently use 

submerged fill, as required by Coast 

Guard regulations.4

C. What are the final rule amendments 

for the Pharmaceuticals Production 

source category? 

The pharmaceutical manufacturing 

process consists of chemical production 

operations that produce drugs and 

medications. These operations include 

chemical synthesis (deriving a drug’s 

active ingredient) and chemical 

formulation (producing a drug in its 

final form). Emissions occur from 

breathing and withdrawal losses from 

chemical storage tanks, venting of 

process vessels, leaks from piping and 

equipment used to transfer HAP 

compounds (equipment leaks), and 

volatilization of HAP from wastewater 

streams. 

For the reasons provided in the 

proposed rule and in the support 

documents in the docket, we have 

determined that the current MACT 

standards for Pharmaceutical 

Production facilities reduce risk to an 

acceptable level, provide an ample 

margin of safety to protect public health, 

and prevent adverse environmental 

effects. We are, therefore, re-adopting 

the existing MACT standards to satisfy 

section 112(f) of the CAA. We have also 

determined that there have been no 

significant developments in practices, 

processes, or control technologies since 

promulgation of the MACT standards, 

and that, therefore, it is not necessary to 

revise the MACT standards pursuant to 

CAA section 112(d)(6). 

We are finalizing changes to the 

Pharmaceutical Production MACT 

standards to eliminate the SSM 

exemption. These changes revise Table 

1 in 40 CFR part 63, subpart GGG to 

indicate that several requirements of the 

40 CFR General Provisions related to 

periods of SSM do not apply. We are 

adding provisions to the 

Pharmaceuticals Production MACT 

standards to operate in a manner that 

minimizes emissions, removing the 

SSM plan requirement, removing the 

exemption provisions for periods of 

SSM in 40 CFR 63.1250(g), requiring 

that delay of equipment leak repair 

plans be contained in a separate 

document, clarifying the required 

conditions for performance tests, and 

revising the SSM-associated monitoring, 

recordkeeping, and reporting 

requirements to require reporting and 

recordkeeping for periods of 

malfunction. We are also adding 

provisions to provide an affirmative 

defense against civil penalties for 

exceedances of emission standards 

caused by malfunctions, as well as 

criteria for establishing the affirmative 

defense. 

We are also requiring the electronic 

submittal of performance test data to 

increase the ease and efficiency of data 

submittal and to improve data 

accessibility. Specifically, owners and 

operators of Pharmaceuticals Production 

facilities are required to submit 

electronic copies of applicable reports of 

performance tests to EPA’s WebFIRE 

database through an electronic 

emissions test report structure called the 

ERT. This requirement to submit 

performance test data electronically to 

EPA does not require any additional 

performance testing, and applies only to 

those performance tests conducted 

using test methods that are supported by 

the ERT. 

We are also finalizing a correction to 

an editorial error in 40 CFR 

63.1257(e)(2)(iii)(A)(6)(ii). This section 

incorrectly provides that only one of the 

three listed criteria must be met for the 

inlet to the equalization tank to be 

considered the inlet to the biological 

treatment process. The final correction 

specifies that all of the criteria must be 

met. 

These revisions to the Pharmaceutical 

Production MACT standards are not 

expected to result in substantial 

emissions reduction or economic 

impacts. We have determined that 

facilities in this source category can 

meet the applicable emissions standards 

at all times, including periods of startup 

and shutdown, are in compliance with 

the current MACT standard. No 

substantial changes in costs to industry 

are predicted. The correction to the 

editorial error may result in minimal 

costs to add or move equipment and 

may also result in some small amount 

of emission reductions for any facility 

that was meeting only one or two of the 

three listed criteria. However, as the 

intent of the current MACT standards at 

the time they were promulgated was to 

require facilities to meet all three 

criteria, the costs and emission 

reductions associated with this 

requirement were factored into the 

impacts of the MACT standards at the 

time the standards were promulgated in 

1998. See 63 FR 50287. 

D. What are the final rule amendments 

for the Printing and Publishing Industry 

source category? 

Printing and publishing facilities are 

those facilities that use rotogravure, 

flexography, and other methods, such as 

lithography, letterpress, and screen 

printing, to print on a variety of 

substrates, including paper, plastic film, 

metal foil, and vinyl. The Printing and 

Publishing Industry MACT standards 

include two subcategories: (1) 

Publication rotogravure printing and (2) 

product and packaging rotogravure and 

wide-web flexographic printing. 

Emissions occur from the evaporation of 

solvents in the inks and from cleaning 

solvents. The emission points include 

printing presses and associated dryers 

and ink and solvent storage. 

For the reasons provided in the 

proposed rule and in the support 

documents in the docket, we have 

determined that the current MACT 

standards for Printing and Publishing 

facilities reduce risk to an acceptable 

level, provide an ample margin of safety 

to protect public health, and prevent 

adverse environmental effects. We are, 

therefore, re-adopting the existing 

MACT standards to satisfy section 112(f) 

of the CAA. We have also determined 

that the costs of the only significant 

development in practices, processes, or 

control technologies since promulgation 

of the MACT standards is 

disproportionate to the emission 

reduction that would be achieved, and, 

therefore, we are not adopting 

additional technology standards 

pursuant to CAA section 112(d)(6). 

We are finalizing changes to the 

Printing and Publishing Industry MACT 

standards to eliminate the SSM 

exemption. These changes revise Table 

1 in 40 CFR part 63, subpart KK to 

indicate that several requirements of the 

40 CFR part 63 General Provisions 

related to periods of SSM do not apply. 

We are adding provisions to the Printing 

and Publishing Industry MACT 

standards requiring sources to operate 

in a manner that minimizes emissions, 

removing the SSM plan requirement, 

clarifying the required conditions for 

performance tests, and revising the 

SSM-associated monitoring, 

recordkeeping, and reporting 

requirements to require reporting and 

recordkeeping for periods of 

malfunction. We are also adding 

provisions to provide an affirmative 

defense against civil penalties for 

exceedances of emission standards 

caused by malfunctions, as well as 

criteria for establishing the affirmative 

defense. 

We are also requiring the electronic 

submittal of performance test data to 

increase the ease and efficiency of data 

submittal and to improve data 

accessibility. Specifically, owners and 

operators of printing and publishing 

facilities are required to submit 

electronic copies of applicable reports of 

performance tests to EPA’s WebFIRE 


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Federal Register / Vol. 76, No. 77 / Thursday, April 21, 2011 / Rules and Regulations 22573 

database through an electronic 

emissions test report structure called the 

Electronic ERT. This requirement to 

submit performance test data 

electronically to EPA does not require 

any additional performance testing, and 

applies only to those performance tests 

conducted using test methods that are 

supported by the ERT. 

These revisions to the Printing and 

Publishing Industry MACT standards 

are not expected to result in substantial 

emissions reduction or economic 

impacts. We have determined that 

facilities in this source category can 

meet the applicable emissions standards 

at all times, including periods of startup 

and shutdown, are in compliance with 

the current MACT standards. No 

substantial changes in costs to industry 

are predicted. 

E. What are the requirements during 

periods of startup, shutdown, and 

malfunction? 

The United States Court of Appeals 

for the District of Columbia Circuit 

vacated portions of two provisions in 

EPA’s CAA section 112 regulations 

governing the emissions of HAP during 

periods of SSM. Sierra Club v. EPA, 551 

F.3d 1019 (DC 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 is part of a 

regulation, commonly referred to as the 

‘‘General Provisions Rule,’’ that EPA 

promulgated under section 112 of the 

CAA. When incorporated into CAA 

section 112(d) regulations for specific 

source categories, these two provisions 

exempt sources from the requirement to 

comply with the otherwise applicable 

CAA section 112 emission standards 

during periods of SSM. 

While the Court’s ruling in Sierra 

Club v. EPA, 551 F.3d 1019 (DC Cir. 

2008), did not directly affect all the 

NESHAP rules being addressed, the 

legality of source category-specific SSM 

provisions, such as those in all four 

NESHAP rules, are called into question 

based on the reasoning in that decision. 

We have eliminated the SSM 

exemptions in these four NESHAP. 

Consistent with Sierra Club v. EPA, 

EPA’s standards in these rules will 

apply at all times. We have eliminated 

or revised certain recordkeeping and 

reporting requirements that were related 

to the SSM exemption that no longer 

applies. EPA has attempted to ensure 

that we have not included in the 

regulatory language any provisions that 

are inappropriate, unnecessary, or 

redundant in light of the removal of the 

SSM exemption. 

EPA has not established different 

standards for periods of startup and 

shutdown for three of the four NESHAP 

addressed in this rule because we 

believe compliance with the standards 

is achievable during these periods. In 

the case of MTVLO, loading of marine 

tank vessels occurs in ‘‘batches,’’ and 

general practice is for the loading 

operators to test out the vapor control 

system before it is attached to the tank 

vessel. In the case of the 

Pharmaceuticals Production MACT 

standards, we expect the difference in 

emission levels during periods of 

startup and shutdown are insignificant 

and that facilities in this source category 

should be able to comply with the 

standards during these times. In the case 

of the Printing and Publishing MACT 

standards, we believe there are 

sufficiently long averaging times 

incorporated into the emissions limits 

that facilities should be able to comply 

during periods of startup and shutdown. 

In the case of Group I Polymers and 

Resins, one commenter stated that 

organic HAP emissions that are required 

to be sent to emissions control 

equipment (i.e., flares) may not be able 

to comply with the MACT standards 

during periods of shutdown. The 

commenter stated that they may not 

always be able to route some of their 

process vents to a flare during periods 

of shutdown due to the low pressure or 

low heating value in the process vent. 

EPA agrees with the commenter that it 

is not possible to comply with the 

applicable standard during periods of 

shutdown, and has provided an 

alternative standard applicable during 

these times. 

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 equipment, process 

equipment, or a process to operate in a 

normal or usual manner * * *’’ (40 CFR 

60.2). 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. Under CAA section 112, 

emissions standards for new sources 

must be no less stringent than the level 

‘‘achieved’’ by the best controlled similar 

source, and for existing sources, 

generally must be no less stringent than 

the average emission limitation 

‘‘achieved’’ by the best performing 12 

percent of sources in the category. There 

is nothing in CAA 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 

EPA accounts for variability in setting 

emissions standards consistent with the 

CAA section 112 case law, nothing in 

that case law requires the Agency to 

consider malfunctions as part of that 

analysis. CAA Section 112 uses the 

concept of ‘‘best controlled’’ and ‘‘best 

performing’’ unit in defining the level of 

stringency that CAA 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. 

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 category, 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 (DC Cir. 1999) 

(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 (DC 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. EPA’s approach 

to malfunctions is consistent with CAA 

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 standards as a result of a 


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malfunction event, 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. EPA would also consider 

whether the source’s failure to comply 

with the CAA section 112 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, EPA recognizes that even 

equipment that is properly designed and 

maintained can sometimes fail, and that 

such failure can sometimes cause an 

exceedance of the relevant emission 

standard. (See, e.g., State 

Implementation Plans: Policy Regarding 

Excessive Emissions During 

Malfunctions, Startup, and Shutdown 

(Sept. 20, 1999); Policy on Excess 

Emissions During Startup, Shutdown, 

Maintenance, and Malfunctions (Feb. 

15, 1983)). EPA is, therefore, adding to 

the final rules an affirmative defense to 

civil penalties for exceedances of 

emission limits that are caused by 

malfunctions. See 40 CFR 63.482 (Group 

I Polymers and Resins), 63.561 

(MTVLO), 63.822 (The Printing and 

Publishing Industry), 63.1251 

(Pharmaceuticals Production). The 

regulations define ‘‘affirmative 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. See 40 CFR 

63.480 (Group I Polymers and Resins), 

40 CFR 63.560 (MTVLO), 40 CFR 63.820 

(The Printing and Publishing Industry), 

40 CFR 63.1250 (Pharmaceuticals 

Production). The source must prove by 

a preponderance of evidence that it has 

met all of the elements set forth in 

affirmative defense. See 40 CFR 22.24. 

The criteria ensure that the affirmative 

defense is available only where the 

event that causes an exceedance of the 

emission limit 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 excess emissions ‘‘[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 40 CFR 63.6(e)(1)(i), 

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 the applicable emission 

limitations were being exceeded * * *’’ 

and that ‘‘[a]ll possible steps were taken 

to minimize the impact of the excess 

emissions 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 part 22.77). 

F. What are the requirements for 

submission of emissions test results to 

EPA? 

EPA must have performance test data 

to conduct effective reviews of CAA 

sections 112 and 129 standards, as well 

as for many other purposes, including 

compliance determinations, emission 

factor development, and annual 

emission rate determinations. In 

conducting these required reviews, EPA 

has found it ineffective and time 

consuming, not only for us, but also for 

regulatory agencies, and source owners 

and operators, to locate, collect, and 

submit performance test data because of 

varied locations for data storage and 

varied data storage methods. In recent 

years, though, performance test data in 

electronic format have become readily 

available, making it possible to move to 

an electronic data submittal system that 

would increase the ease and efficiency 

of data submittal and improve data 

accessibility. 

In this action, as a step to increase the 

ease and efficiency of data submittal 

and improve data accessibility, EPA is 

requiring the electronic submittal of 

select performance test data. 

Specifically, EPA is requiring owners 

and operators of sources subject to these 

MACT standards to submit electronic 

copies of applicable reports of 

performance tests to EPA’s WebFIRE 

database. The WebFIRE database was 

constructed to store performance test 

data for use in developing emission 

factors. A description of the WebFIRE 

database is available at http:// 

cfpub.epa.gov/oarweb/ 

index.cfm?action=fire.main. Data entry 

will be through an electronic emissions 

test report structure called the ERT. 

The ERT will be able to transmit the 

electronic report through EPA’s Central 

Data Exchange (CDX) network for 

storage in the WebFIRE database. 

Although ERT is not the only electronic 

interface that can be used to submit 

performance test data to the CDX for 

entry into WebFIRE, it makes submittal 

of data very straightforward and easy. A 

description of the ERT can be found at 

http://www.epa.gov/ttn/chief/ert/ 

ert_tool.html. 

The requirement to submit 

performance test data electronically to 

EPA would not require any additional 

performance testing, and would apply to 

those performance tests conducted 

using test methods that are supported by 

the ERT. The ERT contains a specific 

electronic data entry form for most of 

the commonly used EPA reference 

methods. A listing of the pollutants and 

test methods supported by the ERT is 

available at http://www.epa.gov/ttn/ 

chief/ert/ert_tool.html. When a facility 

submits performance test data to CDX, 

there will be no additional requirements 

for performance test data compilation. 

Moreover, we believe that industry will 

benefit from this new electronic data 

submittal requirement. Having these 

data, EPA will be able to develop 

improved emission factors, make fewer 

information requests, and promulgate 

better regulations. The information to be 

reported is already required for the 

existing test methods, and is necessary 

to evaluate the conformance to the test 

method. 

One major advantage of submitting 

performance test data through the ERT 

is a standardized method to compile 

and store much of the documentation 

required to be reported by this rule that 

also clearly states what testing 

information would be required. Another 

important benefit of submitting these 

data to EPA at the time the source test 

is conducted is that it should 

substantially reduce the effort involved 

in data collection activities in the 

future. When EPA has performance test 

data in hand, there will likely be fewer 

or less substantial data collection 

requests in conjunction with 

prospective required residual risk 

assessments or technology reviews. This 

results in a reduced burden on both 

affected facilities (in terms of reduced 

manpower to respond to data collection 

requests) and EPA (in terms of preparing 

and distributing data collection requests 

and assessing the results). 


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5The seven source categories for which we 

conducted RTR are Epichlorohydrin Elastomers 

Production; Polybutadiene Rubber Production; 

Styrene Butadiene Rubber and Latex Production; 

and NBR Production; Marine Tank Vessel Loading 

Operations, Pharmaceuticals Production; and 

Printing and Publishing. We did not conduct RTR 

for four of the Group I Polymers and Resins source 

categories (Butyl Rubber Production; Ethylene 

Propylene Rubber Production; Polysulfide Rubber 

Production; and Neoprene), because we previously 

re-adopted the existing MACT standard to satisfy 

section 112(f) of the CAA. See 73 FR 76220, 

published December 16, 2008. In addition, we did 

not conduct RTR for HypalonTM Production, 

because there are no longer any facilities operating 

in the United States. 

State, local, and tribal agencies will 

benefit from electronic data submission 

as their review of the data will be more 

streamlined and accurate, because they 

would not have to re-enter the data to 

assess the calculations and verify the 

data entry. Finally, another benefit of 

submitting data to WebFIRE 

electronically is that these data will 

greatly improve the overall quality of 

the existing and new emission factors by 

supplementing the pool of emissions 

test data upon which the emission factor 

is based, and by ensuring that data are 

more representative of current industry 

operational procedures. A common 

complaint heard from industry and 

regulators is that emission factors are 

outdated or not representative of a 

particular source category. By receiving 

and incorporating data for most 

performance tests, EPA will be able to 

ensure that emission factors, when 

updated, represent the most current 

range of operational practices. In 

summary, in addition to supporting 

regulation development, control strategy 

development, and other air pollution 

control activities, having an electronic 

database populated with performance 

test data will save industry, State, local, 

and tribal agencies, and EPA significant 

time, money, and effort while improving 

the quality of emission inventories, and, 

as a result, air quality regulations. 

G. What are the effective and 

compliance dates of the standards? 

The revisions to the MACT standards 

being promulgated in this action are 

effective on April 21, 2011. For the 

MACT standards being addressed in this 

action, the compliance date for the 

revised SSM requirements is the 

effective date of the standards, April 21, 

2011. The electronic reporting 

requirements for the four MACT 

standards being addressed in this action 

are effective on January 1, 2012. For the 

Group 1 Polymers and Resins MACT 

standards, the compliance date for 

existing sources for the new MACT 

standards applicable to front-end and 

back-end process operations is 1 year 

from the effective date of the standards, 

April 23, 2012. For the Marine Tank 

Vessel Loading Operations MACT 

standards, the compliance date for the 

new requirements for submerged fill is 

1 year from the effective date of the 

standards, April 23, 2012. The 

compliance date for the corrected 

provision in the Pharmaceuticals 

Production MACT standards is the 

effective date of the standards, April 21, 

2011. Beyond the revised SSM and 

electronic reporting requirements, there 

are no changes to The Printing and 

Publishing Industry MACT standards. 

IV. Summary of Significant Changes 

Since Proposal 

A. What changes did we make to the 

risk assessments for these source 

categories since proposal? 

CAA section 112(f)(2) requires us to 

determine whether certain emissions 

standards reduce risk to an acceptable 

level, and once we have ensured that 

the risk is acceptable, whether the 

standards provide an ample margin of 

safety to protect public health and 

prevent an adverse environmental 

effect. First we determine whether there 

is an acceptable risk. EPA generally 

presumes that, if the maximum 

individual risk (MIR) is no higher than 

100-in-1 million, that risk is acceptable. 

In addition to MIR, EPA also considers 

a series of other health measures and 

factors to complete an overall judgment 

on acceptability. In some cases, these 

health measures and factors taken 

together may provide a more realistic 

description of the magnitude of risk in 

the exposed population than MIR alone. 

If the risk is unacceptable, EPA must 

require additional controls, without 

consideration of cost, to ensure an 

acceptable level of risk. After 

determining that the level of risk is 

acceptable, EPA evaluates whether the 

standards provide an ample margin of 

safety by considering costs and 

economic impacts of controls, 

technological feasibility, and other 

relevant factors, in addition to those 

health measures and factors considered 

to determined acceptability. 

Considering all of these factors, EPA 

ensures that the standard is set at a level 

that provides an ample margin of safety 

to protect public health, as required by 

CAA section 112(f). 

At proposal, we conducted risk 

assessments that provided estimates of 

the MIR posed by the allowable and 

actual HAP emissions from each source 

in a category, the distribution of cancer 

risks within the exposed populations, 

cancer incidence, hazard index (HI) for 

chronic exposures to HAP with noncancer health effects, and hazard 

quotient (HQ) for acute exposures to 

HAP with non-cancer health effects. We 

found that the residual risks to public 

health from all source categories subject 

to these four MACT standards are 

acceptable, and, further, that the 

existing standards provide an ample 

margin of safety to protect public health 

and pose no adverse environmental 

effects. Thus, we proposed that no 

additional controls would be required to 

address such risks. Specifically, we 

found that the lifetime cancer risk to the 

individual most exposed to emissions 

from each of these seven source 

categories 5 was less than 100-in-1 

million for both the actual emissions 

and the emissions that would occur if 

emissions from the source categories 

were at the maximum levels allowed by 

the standards. Additional analyses 

showed that the cancer incidence and 

number of people with cancer risk over 

1-in-1 million were low. In addition, a 

review of the acute non-cancer 

exposures showed that none of these 

seven source categories posed an 

appreciable risk of acute non-cancer 

health effects. We also determined that 

HAP emissions from these source 

categories were not expected to result in 

adverse environmental effects. 

To support our decisions regarding 

acceptability and ample margin of safety 

in the proposal, we also conducted risk 

assessments that accounted for HAP 

emissions from entire facilities at which 

a source covered by one of the standards 

under review was located. With the 

exception of two facilities with MTVLO 

on-site that had facility-wide risks 

greater than 100-in-1 million, based on 

the data we had at that time, we 

concluded, for purposes of the proposal, 

that the facility-wide risk for sources in 

the four source categories was also 

relatively low. As a result of data and 

information received from commenters 

on the proposal, we now project the 

highest facility-wide risk with MTVLO 

on-site is approximately 90-in-1 million. 

Uncertainty and the potential for bias 

are inherent in all risk assessments, 

including those performed for the 

source categories addressed in these 

final rules. Although uncertainty exists, 

we believe that our approach, which 

used conservative tools and 

assumptions, ensures that our decisions 

are health-protective. A discussion of 

the uncertainties in the emissions 

datasets, dispersion modeling, 

inhalation exposure estimates, and 

dose-response relationships is provided 

in the preamble to the proposed rule. 

See 75 FR 65081–65083. 


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6See Summary of Public Comments and 

Responses for Group I Polymers and Resins, Marine 

Tank Vessel Loading Operations, Pharmaceutical 

Production, and The Printing and Publishing 

NESHAP (March 2011), for summaries of other 

comments and our responses to them. 

7See National Emission Standards for Hazardous 

Air Pollutants: Benzene Emissions from Maleic 

Anhydride Plants, Ethylbenzene/Styrene Plants, 

Benzene Storage Vessels, Benzene Equipment 

Leaks, and Coke By-Product Recovery Plants 

(Benzene NESHAP) (54 FR 38044, September 14, 

1989). 

B. What changes did we make to the 

Group I Polymers and Resins MACT 

since proposal? 

We are eliminating the subcategories 

(i.e., Butyl Rubber and Halobutyl 

Rubber) in the Butyl Rubber source 

category because we agree with 

commenters who stated that both 

facilities in the Butyl Rubber source 

category now produce halobutyl rubber 

as the primary product, and the 

technical differences that distinguished 

the subcategories no longer exist. The 

current MACT standards for facilities in 

this source category are not affected by 

the removal of the subcategory 

distinction because the existing 

standards are identical for each 

subcategory. In October 2010, we 

proposed the same standards for both 

subcategories for the front-end process 

operations. However, we proposed 

different standards for each subcategory 

for the back-end process operations. 

Considering that both facilities would 

now be identified as being part of one 

source category by primary product 

determination, it would not be 

appropriate to finalize the proposed 

requirements that were based on 

analyses of each facility in its own 

subcategory. To address the two 

facilities together in one Butyl Rubber 

source category, we re-evaluated the 

emissions reductions, costs, and other 

impacts of controls for both the backend operations and the front-end 

process vents for these two facilities. 

For the front-end process vents, we had 

proposed beyond-the-floor standards for 

both the Butyl Rubber subcategory and 

the Halobutyl Rubber subcategory, along 

with the Ethylene Propylene Rubber 

source category. Based on our revised 

analyses, we are setting requirements for 

the combined Butyl Rubber source 

category at the MACT floor level of 

control. The requirements for the 

Ethylene Propylene Rubber source 

category are also being set at the MACT 

floor level of control. For the back-end 

process operations, we had proposed 

beyond-the-floor standards for the Butyl 

Rubber subcategory, and the MACT 

floor level of control for the Halobutyl 

Rubber subcategory. Based on our 

revised analyses, we are setting 

requirements for the combined Butyl 

Rubber source category at the MACT 

floor level of control. 

We are finalizing our proposal to set 

standards at the MACT floor level of 

control for back-end process operations 

in the Epichlorohydrin Elastomers, 

NBR, and Neoprene source categories. 

However, based on information we 

received during the comment period, we 

have revised some of the MACT floor 

limits for these source categories. 

Information received for the only 

facility in the Neoprene Rubber 

Production source category corrected 

the emissions rate of one HAP emissions 

source, and we have revised the MACT 

floor limit for that source category to 

reflect the corrected emissions rate. We 

also received information during the 

comment period for the one facility in 

the NBR source category, which showed 

that, due to the different grades of 

product produced, the rate of emissions 

per unit of production varies. Similarly, 

the one facility in the Epichlorohydrin 

Elastomers source category also 

expected to have variations in the rate 

of emissions per unit of production, 

based on its different grades of product 

produced. Considering this variation in 

emissions, we increased the limit of the 

MACT floor for these source categories 

to allow for the observed variability in 

emissions per unit of production. We 

also added factors to account for 

variation in emissions per unit of 

production for the Butyl Rubber and 

Ethylene Propylene Rubber source 

categories, based on information 

received for the facilities in this source 

category. 

C. What changes did we make to the 

Marine Tank Vessel Loading Operations 

MACT since proposal? 

We proposed the MACT floor as 

submerged fill for the two subcategories 

not previously regulated (facilities 

emitting less than 10/25 TPY of HAP 

from MTVLO, and those ‘‘offshore’’ 

facilities located more than 0.5 miles 

from shore). Additionally, under the 

CAA section 112(d)(6) technology 

review of the existing MTVLO MACT, 

and as setting the beyond-the-floor 

MACT standards for the two 

subcategories not previously regulated, 

we proposed that existing facilities 

loading 1 million barrels per year (bbl/ 

yr) of gasoline install vapor controls, 

either meeting 97-percent control, or the 

equivalent emission limit of 10 

milligrams per liter (mg/l). 

We are finalizing the proposed MACT 

floor work practice to require 

submerged fill of liquids into marine 

tank vessels at those previously 

unregulated sources. However, as a 

result of information received during 

the comment period, we are not 

finalizing the requirements we proposed 

under the technology review 

requirements of CAA section 112(d)(6), 

the beyond the floor and technology 

review requirements for vapor control 

technology for facilities loading 1 

million bbl/yr. 

V. Summary of Significant Comments 

and Responses 

In the proposed action, we requested 

public comments on our residual risk 

reviews, our technology reviews, 

proposed amendments to delete the 

startup and shutdown exemptions and 

the malfunction exemption, the control 

of unregulated HAP, and clarification of 

rule provisions. We received written 

comments from 104 commenters. Our 

responses to the public comments that 

changed the basis for our decisions or 

are otherwise significant are provided 

below.6

A. EPA’s Authority Under CAA 

Section 112 

Comment: We received comments 

both in favor of and objecting to EPA’s 

consideration of various factors in 

determining acceptable risk. Some 

commenters argue that the two-step 

process developed to address residual 

risk and determine ‘‘ample margin of 

safety’’ in the Benzene NESHAP should 

be preserved. Commenters also request 

that EPA continue to use its discretion 

to determine that a maximum cancer 

risk of 100-in-1 million is acceptable. 

Another commenter supports EPA’s 

commitment to avoid establishing 

inflexible decision points for acceptable 

risks or ample margin of safety. 

Commenters also debate whether EPA 

has the authority to evaluate, or should, 

as a matter of policy, evaluate facilitywide risk, demographic assessments, 

and risks based on actual or allowable 

emissions. 

Response: For the four rules we are 

finalizing, our evaluation of facilitywide risk, demographics, and allowable 

emissions did not change our decisions 

about acceptability and ample margin of 

safety. Therefore, comments on how 

these factors were used by EPA in 

determining acceptable risks are not 

germane to these final rules. We note, 

however, that section 112(f)(2) of the 

CAA expressly preserves our use of the 

two-step process for developing 

standards to address residual risk and 

interpret ‘‘ample margin of safety’’ as 

developed in the Benzene NESHAP.7 In 

both the Benzene NESHAP and our 


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8See Residual Risk Report to Congress, EPA–453/ 

R–99–001 (March 1999). 

9NRDC and LEAN v. EPA, 529 F.3d 1077 (D.C. 

Cir. 2008). 

Residual Risk Report 8 to Congress, we 

explain that we do not define ‘‘rigid 

line(s) of acceptability’’ and that we will 

consider a series of other health 

measures and factors in determining if 

risk is acceptable. Our authority to use 

the two-step process laid out in the 

Benzene NESHAP, and to consider a 

variety of measures of risk to public 

health is discussed more thoroughly in 

the preamble to the proposal. See 75 FR 

65071–65073. 

Comment: Some commenters state 

that our review under CAA section 

112(d)(6) should be limited to only 

advances in work practices and control 

technologies, and should not include 

emission points not regulated by the 

existing MACT standard. Expanding 

rule applicability should not be 

considered, as it has nothing to do with 

developments in practices, processes, or 

control technologies and is not 

indicated in the CAA as a basis for the 

technology review. The commenter 

states that EPA already made 

applicability determinations in the 

original MACT rules by evaluating the 

floor and beyond-the-floor options, and 

nothing in the CAA warrants review of 

these determinations. The commenters 

also state these changes should only be 

considered in the CAA section 112(f) 

risk review to reduce risks. 

Some commenters stated that a review 

under CAA section 112(d)(6) is not 

required if the post-MACT emissions 

levels result in risks that are deemed to 

be protective of public health with an 

ample margin of safety. Furthermore, 

they stated that EPA should exempt 

source categories from CAA section 

112(d)(6) review once this level has 

been achieved. They add that the review 

under CAA section 112(d)(6) should be 

considered an extension of the main 

purpose of CAA section 112, which is 

to reduce the public’s exposure to air 

toxics, and not to impose new 

technology just because it is available. 

One commenter states that it was the 

intent of Congress for the MACT 

standards to ultimately reduce risk from 

sources to a level considered acceptable, 

and there is no legislative history to 

suggest that Congress expected EPA to 

revise MACT standards after these 

levels had been achieved. 

Another commenter states an 

opposing view, saying that, in keeping 

with the context of CAA section 112(d), 

which requires technology-based 

standards that reflect the maximum 

degree of emission reduction 

achievable, CAA section 112(d)(6) 

serves as an on-going ratchet to 

continually require EPA to update 

standards to keep pace with new 

technology. The commenter states that 

the decision of the Court in the 

Hazardous Organic NESHAP (HON) 9

ruling, while not requiring recalculation 

of the floor for that standard, did so only 

for that MACT because there were no 

new developments in practices, 

processes, or control technologies, and 

expressly declined to decide whether 

EPA was required to recalculate the 

floors for other instances where there 

were such developments. 

Response: We note that we do not 

consider unregulated emission points 

under CAA section 112(d)(6). To the 

extent there are unregulated emission 

points, we set standards under CAA 

sections 112(d)(2) and (3). We are not 

revising any of the four MACT rules in 

this notice pursuant to the CAA section 

112(d)(6) review. Instead, for the newly 

regulated emissions points in the Group 

I Polymers and Resins source categories 

and in the Marine Tank Vessel Loading 

Operations source category we are 

promulgating MACT standards under 

CAA sections 112(d)(2)–(3). 

In our CAA section 112(d)(6) review 

of pre-existing standards, we consider 

both improvements in practices, 

processes, or control technologies that 

we may have previously considered, as 

well as practices, processes, or control 

technologies that are new, or were 

unknown to us when the original MACT 

rule was developed. Because 

incremental changes in the practices, 

processes, or control technologies can 

have a significant impact on emissions, 

these changes are considered in our 

analysis of whether to revise the MACT 

standards under CAA section 112(d)(6). 

In considering both existing and new 

practices, processes, and control 

technologies, we consider costs and 

other factors in determining whether it 

is ‘‘necessary’’ to revise the existing 

standard. 

We disagree with the view that a 

determination under CAA section 112(f) 

of an ample margin of safety and no 

adverse environmental effects alone 

will, in all cases, cause us to determine 

that a revision is not necessary under 

CAA section 112(d)(6). In some cases, 

even if risk factors remain the same 

from one round of CAA section 

112(d)(6) review to another, changes in 

costs or availability of control 

technology may be sufficient to alter a 

previous conclusion about whether to 

impose further controls. We also 

disagree with the assertion that the HON 

Court’s ruling that CAA section 

112(d)(6) does not require re-calculation 

of MACT floors was limited to instances 

in which there have not been 

developments in practices, processes, or 

control technologies. In fact, the Court 

was quite clear on this point, and 

declined to rule only on whether it was 

appropriate for EPA to consider costs 

and risks in conducting CAA section 

112(d)(6) reviews, as the issue was 

rendered moot by the litigants’ failure to 

preserve it. See NRDC v. EPA, 529 F.3d 

at 1084 (‘‘It has been argued that EPA 

was obliged to completely recalculate 

the maximum achievable control 

technology—in other words, to start 

from scratch. We do not think the words 

‘review, and revise as necessary’ can be 

construed reasonably as imposing any 

such obligation. Even if the statute did 

impose such an obligation, petitioners 

have not identified any post-1994 

technological innovations that EPA has 

overlooked.’’). 

Comment: Commenters state that EPA 

does not have the authority under CAA 

section 112(d)(2) or (3) to later review 

and possibly revise the MACT 

determination once a MACT 

determination has been made for a 

source category. Several commenters 

state that EPA only has the authority to 

revisit the rulemaking if a timely legal 

challenge to the standard is lodged. The 

commenters further note they are not 

aware of any instance where EPA has 

revisited a beyond-the-floor analysis in 

the absence of a Court decision, rule 

vacatur, or settlement agreement. 

Commenters also state that reassessing 

MACT standards and imposing more 

stringent requirements would also be 

inconsistent with Congress’s desire for 

finality evident in the judicial review 

provisions of CAA section 307(b), which 

provides that challenges to MACT 

standards must be raised within 60 days 

of their promulgation, assuring that 

regulated entities, EPA, and the public 

know what emissions limitations will 

apply to a source rather than having 

those limitations be subject to flux. 

In contrast, one commenter states that 

it is appropriate and essential that EPA 

establish control for all emissions 

sources, including sources that 

previously had ‘‘no control’’ floors, 

under CAA section 112(d)(6). The 

commenter states that EPA should 

continue to do this for all MACT 

standards. 

Response: Under CAA section 

112(d)(2), the EPA must promulgate 

technology-based standards that reflect 

the maximum degree of emission 

reductions of HAP achievable (after 

considering cost, energy requirements, 

and non-air quality health and 

environmental impacts). Nothing in the 


emcdonald on DSK2BSOYB1PROD with RULES3
22578 Federal Register / Vol. 76, No. 77 / Thursday, April 21, 2011 / Rules and Regulations 

CAA or its legislative history suggests 

that EPA is prohibited from reviewing 

and revising MACT standards, except as 

part of the CAA section 112(d)(6) or 

CAA section 112(f) reviews. Where we 

identify emission points that were 

erroneously not previously regulated 

under a MACT rule, we may identify 

MACT floor and beyond-the-floor 

control options for existing and new 

sources. An agency generally remains 

free to revise improperly promulgated or 

otherwise unsupportable rules, even in 

the absence of a remand from a Court. 

United Gas Improvement Co. v. Callery 

Props., Inc., 382 U.S. 223, 229 (1966) 

(‘‘An agency, like a court, can undo what 

is wrongfully done by virtue of its 

order.’’); Macktal v. Chao, 286 F.3d 822, 

825–26 (5th Cir. 2002) (‘‘[I]t is generally 

accepted that in the absence of a 

specific statutory limitation, an 

administrative agency has the inherent 

authority to reconsider its decisions.’’). 

Agencies have particularly broad 

authority to revise their regulations to 

correct their errors. Last Best Beef, LLC 

v. Dudas, 506 F.3d 333, 340 (4th Cir. 

2007); Friends of the Boundary Water 

Wilderness v. Bosworth, 437 F.3d 815, 

823 (8th Cir. 2006) (‘‘It is widely 

accepted that an agency may, on its own 

initiative, reconsider its interim or even 

final decisions, regardless of whether 

the applicable statute and agency 

regulations expressly provide for such 

review.’’) (citations omitted). Moreover, 

an agency may reconsider its 

methodologies and application of its 

statutory requirements and may even 

completely reverse course, regardless of 

whether a court has determined that its 

original regulation is flawed, so long as 

the agency explains its bases for doing 

so. Motor Vehicle Mfrs. Ass’n v. State 

Farm Mutual Auto Ins. Co., 463 U.S. 29, 

42 (1983); FCC v. Fox Television 

Stations, Inc., 129 S. Ct. 1800, 1810 

(2009); Nat’l Cable & Telecomms. Ass’n 

v. Brand X Internet Servs., 545 U.S. 967, 

981–82 (2005) (internal citations 

omitted): (‘‘’An initial agency 

interpretation is not instantly carved in 

stone. On the contrary, the agency 

* * * must consider varying 

interpretations and the wisdom of its 

policy on a continuing basis,’ Chevron, 

supra at 863–864[], for example, in 

response to changed factual 

circumstances, or a change in 

administration. That is, no doubt, why 

in Chevron itself, this Court deferred to 

an agency interpretation that was a 

recent reversal of agency policy.’’) 

Here, both the Polymers and Resins I 

and the Marine Tank Vessel Loading 

Operations NESHAP, as originally 

promulgated, did not contain MACT 

standards for certain significant HAP 

emissions points, and, we are, therefore, 

appropriately promulgating standards 

for those emissions points under CAA 

sections 112(d)(2)–(3) for the first time. 

CAA section 112(d)(6) and CAA section 

112(f)(2) do not govern the initial 

establishment of the MACT standards. 

This approach is consistent with other 

recent actions that establish MACT 

standards for the first time for 

significant emissions points that had not 

been previously addressed by CAA 

section 112 (d) standards. See, e.g., 

National Emission Standards for 

Hazardous Air Pollutants from 

Petroleum Refineries; Final Rule, 74 FR 

55670, 556773–74 (October 28, 2009). 

B. Group 1 Polymers and Resins 

Comment: One commenter states that, 

due to changes made at a facility since 

MACT promulgation, the facility would 

no longer fall into the Butyl Rubber 

subcategory, based on the primary 

product made, and would be in the 

Halobutyl Rubber subcategory. (The 

Butyl Rubber and Halobutyl Rubber 

subcategories comprise the Butyl 

Rubber source category.) However, the 

unit at this facility that produces 

halobutyl rubber as the primary product 

is a flexible operations unit that 

produces three major products, one of 

which is still butyl rubber, and, 

therefore, emits significantly different 

emissions from the only other halobutyl 

rubber facility in the United States, 

which produces halobutyl rubber 

exclusively. Commenters recommend 

EPA revise the Butyl Rubber source 

category descriptions to distinguish 

between halobutyl rubber-only and 

flexible units, and to apply primary 

product determinations only at the 

category level, and not the subcategory 

level. The commenters further state that, 

if these facilities are not separated into 

different subcategories and are both 

included in the Halobutyl Rubber 

subcategory, the current proposal and 

supporting analyses will not be 

applicable, and new analyses and 

proposal will be needed. 

Response: Currently there are only 

two facilities in the United States that 

produce either butyl or halobutyl 

rubber. Since one of these facilities can 

produce both butyl rubber and 

halobutyl rubber, and since halobutyl 

rubber is the primary product for both 

of these facilities, we have concluded 

that there is no longer a need to 

maintain the subcategory distinction in 

the Butyl Rubber source category in the 

current MACT standards. Therefore, we 

have removed the subcategories of 

Halobutyl Rubber and Butyl Rubber in 

the Butyl Rubber source category, and 

both facilities that were in these 

subcategories will now be included in 

the Butyl Rubber source category. The 

Group I Polymers and Resins MACT 

standards create separate source 

categories or subcategories by requiring 

different standards for different types of 

primary products. In the final rule, we 

have removed the language that 

distinguishes halobutyl rubber as a 

separate product type, which has the 

effect of removing the subcategories 

from the Butyl Rubber source category. 

While the existing MACT standards 

have identical requirements for the 

Butyl and Halobutyl Rubber 

subcategories, we proposed different 

requirements for these subcategories for 

back-end process operations, and 

common requirements for the front-end 

process vents at proposal. 

With the removal of the subcategory 

distinction, we have revised our 

analyses of the emissions reductions, 

costs, and other impacts of controls for 

both the front-end and back-end process 

operations for these two facilities. Based 

on these analyses, we determined that 

the beyond-the-floor standards for frontend process operations that were 

proposed separately for both the Butyl 

Rubber and Halobutyl Rubber 

subcategories, which are a 98-percent 

reduction in organic HAP, and a 99- 

percent reduction in hydrogen halides 

and halogens, are not cost-effective for 

the Butyl Rubber source category. We 

are setting requirements for the 

combined front-end process operations 

for the Butyl Rubber source category at 

the MACT floor level of control. For the 

back-end process operations, we 

proposed beyond-the-floor standards for 

the Butyl Rubber subcategory, and the 

MACT floor level of control for the 

Halobutyl Rubber subcategory. Based on 

our revised analyses, the beyond-thefloor level of control, which is a 98- 

percent reduction in organic HAP, is not 

cost-effective for the Butyl Rubber 

source category. We are setting 

requirements for the combined back-end 

process operations for the Butyl Rubber 

source category at the MACT floor level 

of control. The current MACT standards 

are not affected by the removal of the 

subcategory distinction because the 

existing standards are identical for each 

subcategory. 

Comment: One commenter stated that, 

if a facility was subject to MACT 

standards limiting HCl emissions from 

its front-end process vents in the Butyl 

Rubber source category and the 

Ethylene Propylene Rubber source 

category, then it would be unacceptable 

business practice to route those 

emissions to the proposed shared 

control device. A shared control device 


emcdonald on DSK2BSOYB1PROD with RULES3
Federal Register / Vol. 76, No. 77 / Thursday, April 21, 2011 / Rules and Regulations 22579 

10See Regulatory Alternative Impacts for Group 

I Polymers and Resins (March 2011) in the docket. 

would limit operating flexibility, cause 

lost business due to shutdown of both 

units for expected maintenance of 

thermal oxidizers and halogen 

scrubbers, and the potential for lost 

business, excess emissions, and dual 

violations from both units from 

unplanned shutdowns. The commenter 

states that EPA, therefore, needs to 

consider separate controls for each unit, 

a spare thermal oxidizer and halogen 

scrubber, or the significant lost business 

and other costs and emission impacts of 

having a shared control device in the 

beyond-the-floor costs analysis for the 

proposed control. The commenter 

estimates that the costs for the units to 

be controlled separately are $20,600/ton 

HCl emissions reduced for the unit in 

the Butyl Rubber source category (note 

that the commenter refers to this as the 

halobutyl rubber unit, since that is the 

product being produced), and $51,000/ 

ton HCl emissions reduced for the unit 

in the Ethylene Propylene Rubber 

source category. Commenters also stated 

that the proposed beyond-the-floor 

MACT standards to control front-end 

process vents in the Butyl Rubber and 

Ethylene Propylene Rubber source 

categories are not cost-effective and 

should not be finalized. One commenter 

provided data showing costs to range 

from $16,900/ton of HAP emissions 

reduced to $80,100/ton of HAP 

emissions reduced to meet the proposed 

front-end process vent MACT standards. 

Response: We disagree with the claim 

that the CAA precludes our taking note 

of the co-location of these units in 

estimating the costs to control the HCl 

from these units. Nevertheless, based on 

information received during the 

comment period, we recalculated 

separate source category cost estimates 

for control of HCl from ethylene 

propylene rubber and butyl rubber units 

for the one facility where these units are 

co-located. The changes from the 

estimate at proposal primarily include 

using a recuperative thermal oxidizer 

rather than a direct flame incinerator, 

and including additional ductwork and 

pumps needed to convey emissions to 

the control devices. We estimate that, 

considered separately, the cost to 

control the ethylene propylene rubber 

front-end process vents would be 

approximately $19,000/ton HCl 

emissions reduced, and the cost to 

control the butyl rubber front-end 

process vents would be approximately 

$12,000/ton HCl emission reduced. 

Comment: Commenters state that the 

proposed beyond-the-floor MACT 

standards to control the back-end 

process vents in the Butyl Rubber 

source category are not cost-effective, 

and should not be finalized. One 

commenter provided data showing costs 

to range from $72,300/ton of HAP 

emissions reduced to $75,600/ton of 

HAP emissions reduced to meet the 

proposed back-end process vent MACT 

standards. 

Response: With the removal of the 

subcategory distinction, we revised our 

analyses of the emissions reductions, 

costs, and other impacts of the beyondthe-floor option identified at proposal. 

This beyond-the-floor option would 

require the ducting of emissions from 

the uncontrolled back-end process 

operations to a control device for the 

two facilities now in the Butyl Rubber 

source category. In this revised analysis, 

we considered information provided 

during the comment period regarding 

the types of oxidizers and ducting 

equipment that would be needed for the 

facilities in this source category for the 

beyond-the-floor control option, as well 

as the provided information on process 

flow rates. From the revised analysis, 

we estimate that thermal oxidizers 

would achieve an emissions reduction 

of 98 percent, resulting in a decrease in 

hexane emissions of approximately 66 

TPY. The capital costs of this option are 

estimated to be approximately $3.5 

million, total annual costs are estimated 

to be approximately $1.5 million, and 

the cost-effectiveness values would be 

approximately $23,000 per ton of HAP 

emissions reduced. We believe the costs 

of this beyond-the-floor option are not 

reasonable, given the level of emission 

reduction. Therefore, we are finalizing 

the MACT floor level of emissions. We 

have determined that the MACT floor 

level of control for the source category 

is a production-based limit reflecting 

each source’s organic HAP emissions 

divided by its total elastomer product 

leaving the stripper in 2009, multiplied 

by a variability factor of 1.35. In 

establishing the floor-level limit, the 

variability factor was included to 

account for the historic variability in the 

amount of emissions per unit of 

production at these facilities. 

Comment: Commenters noted that the 

emissions from back-end process 

operations for facilities in the 

Epichlorohydrin Elastomers, NBR, and 

Butyl Rubber source categories, and HCl 

emissions from front-end process 

operations in the Ethylene Propylene 

Rubber and Butyl Rubber source 

categories will vary only by the mass of 

polymer product produced, because 

there is only one facility in each source 

category. The commenters note that the 

proposed MACT standards were based 

on emissions data and associated 

production levels for certain years. 

These commenters state that it is not 

appropriate to set the standards in this 

way, as it does not allow for variability 

in the manufacturing process, or the 

potential for the production of different 

product mixes and volumes in the 

future. One commenter suggests using 

2008 emissions, and, perhaps, other 

recent years of data in setting the limits. 

Another commenter suggests that EPA 

look at the statistical variation over 

time, and, if EPA revisits the current 

subcategorization scheme within the 

Butyl Rubber source category, then EPA 

should also consider variability in 

source design and operation. The 

commenter also notes that, over the last 

10 years, emissions from back-end 

process vents varied by up to 43 percent 

from their levels in 2006 due to factors 

such as weather conditions, grade slate 

changes (such as product grade or slight 

variations in product type), and process 

and control device reliability/service. 

Both commenters submitted additional 

emissions data for EPA’s consideration. 

Response: We have adjusted the 

emissions limits in the final rule to 

better account for process variability 

and other factors for the front-end 

process vent MACT limits in the Butyl 

Rubber and Ethylene Propylene Rubber 

source categories and the back-end 

MACT limits for the Butyl Rubber, 

Epichlorohydrin Elastomers, and NBR 

source categories.10 For the Butyl 

Rubber source category, up to 10 years 

of annual emissions and annual 

production data were submitted for the 

two facilities in the source category. 

These data showed that the emissions 

per unit production varied up to 74 

percent higher for HCl from front-end 

process vents than that reported in 

2010, and varied up to 35 percent higher 

for back-end process vents than that 

reported for 2009. To account for this 

variability, we included a variability 

factor of 74 percent over the HCl 

emissions per unit production in 2010 

in the front-end process operations 

limit, and a variability factor of 35 

percent over the emissions per unit 

production in 2009 in the back-end 

process operations limit for this source 

category. For the Ethylene Propylene 

Rubber source category, historical 

annual emissions and annual 

production data were submitted for the 

one affected facility in the source 

category. These data showed that the 

emissions per unit production varied up 

to 39 percent higher for HCl from frontend process vents than reported in 2010. 

To account for this variability, we 

included a variability factor of 39 

percent over the HCl emissions per unit 

production in 2010 in the front-end 


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11Of the two facilities with MTVLO that 

previously showed facility-wide risks exceeding 

100-in-1 million, the revised risk assessment results 

show one facility has facility-wide risks of 70-in-1 

million, and the other has facility-wide risks of 40- 

in-1 million. 

12For this facility, reported actual and allowable 

emission are the same; therefore, the MIR is the 

same for both. 

process operations limit. Similarly, for 

the NBR source category, historical 

annual emissions and production data 

were submitted after the comment 

period for the one facility in the source 

category. While this facility recently 

installed emissions control systems 

beyond those required to meet the 

current MACT requirements, after these 

control were in place, the data showed 

that emissions per unit production 

varied up to 42 percent higher than that 

reported for 2009. To account for this 

variability, we included a variability 

factor of 42 percent over the emissions 

per unit production in 2009 in the backend process operations limit for this 

source category. For the 

Epichlorohydrin Elastomers source 

category, historical annual emissions 

indicative of the expected variation of 

emissions was unavailable. Due to the 

similarities between the NBR and 

Epichlorohydrin Elastomers facilities in 

the equipment used, and how they 

operate their back-end processes, 

however, the same 42-percent 

variability factor was applied to the 

emissions per unit production in 2009 

in the back-end process operations 

limit. 

Comment: Commenters stated that 

EPA should provide an allowance for 

maintenance of any thermal oxidizer 

required to be installed. One commenter 

notes that a regenerative thermal 

oxidizer (RTO) requires maintenance 

that sometimes necessitates that the 

RTO be bypassed. The commenter notes 

that back-end process vents at existing 

sources in the Butyl Rubber source 

category are currently permitted to 

allow bypass emissions during 

maintenance work on the control device 

up to the permitted limit with the use 

of purchased Emission Reduction 

Credits in Texas, and an allowance for 

bypass emissions is included in the unit 

operating permit in Louisiana. The 

commenter suggests that the MACT 

standards for the back-end process vents 

should recognize that bypassing 

currently occurs for RTO-controlled 

emissions, and allow for it in the MACT 

standards. 

Response: We recognize that 

bypassing currently occurs. However, 

the Court has made clear that MACT 

standards must apply at all times. See 

Sierra Club v. EPA, 551 F.3d 1019 (D.C. 

Cir. 2008), cert. denied, 130 S. Ct. 1735 

(U.S. 2010). The emission limits we are 

finalizing for the back-end process 

operations are in the format of a 12- 

month rolling average, and, therefore, 

facilities may bypass only provided that 

they are in continuous compliance with 

the standards. 

Comment: Commenters requested that 

EPA clarify the definition of back-end 

processes specifically to exclude 

operations that have essentially no HAP 

emission potential, such as handling 

and storage of finished products. They 

stated that it would also be helpful for 

the Agency to clarify that surge control 

vessels, equipment leaks, storage 

vessels, and wastewater, which are 

regulated by the Group I Polymers and 

Resins MACT, are not included in the 

definition of back-end processes. 

Response: We agree with the 

commenters that the proposed 

definition of back-end processes was 

unclear, and that surge control vessels, 

equipment leaks, storage vessels, and 

wastewater are regulated in the existing 

Group I Polymers and Resins MACT 

standards, and that handling and storage 

of finished products is not part of the 

back-end process operations. We have 

revised the language in the final rule 

accordingly. 

Comment: Commenters request 

clarification that, in the absence of 

allowing 4 years for compliance, the 

first compliance demonstration would 

be 24 months after the publication date 

for emission limits, based on a 

12-month rolling average. This would 

allow for data collection to begin in the 

first month after the compliance date 

(13th month after promulgation) and 

provide for 1 year of data to be used in 

the compliance demonstration. One 

commenter requested that compliance 

not be determined on less than a 12- 

month basis, because this would limit 

the variability allowed for in the rolling 

12-month limit. 

Response: We agree with the 

commenter that compliance should be 

determined on a 12-month basis. The 

first time 12 months of data will be 

available will be in the 13th month after 

the compliance date, which is the 25th 

month after the publication date. To 

demonstrate compliance, the 12-month 

rolling average information must be 

included in the first periodic report that 

occurs after 12 months of data have 

been collected. We have clarified the 

timing of the compliance demonstration 

in the final rule language. 

C. Marine Tank Vessel Loading 

Operations 

Comment: Commenters stated that 

there were errors in the 2005 National 

Emissions Inventory (NEI) data set, and 

that EPA significantly overestimated the 

MIR for the MTVLO source category for 

each of these facilities due to data 

errors. 

Response: At proposal, we found that 

the current MACT-based standards both 

provide an ample margin of safety to 

protect public health and prevent 

adverse environmental effects, and, 

therefore, did not make any changes to 

the existing standards due to the risk 

analysis. We found that three facilities 

had MIR greater than 1-in-1 million 

(values of 10-, 20-, and 20-in-1 million) 

for the MTVLO source category. We 

identified two facilities with facilitywide MIR greater than 100–in-1 million 

(each with values of 200). Using new 

data obtained since proposal, we 

corrected the errors noted by the 

commenters for both MTVLO emission 

sources and other emission sources at 

the facilities. We found incorrect 

latitudes and longitudes for some 

emission sources, incorrect emissions 

reported for some sources, or incorrectly 

identified HAP. We updated the 2005 

NEI data sets for each facility with 

corrected data, and conducted a 

reanalysis of the risk using the corrected 

data set. The revised risk assessment 

results show no facilities with MTVLO 

have a facility-wide risk of greater than 

100-in-1 million.11 Based on 2005 

emissions data, MTVLO source category 

emissions from one facility result in a 

MIR of 50-in-1 million (20 percent from 

benzene and 80 percent from 

butadiene), however, this facility reports 

in its public comments an 89- percent 

reduction in benzene emissions and a 

97-percent reduction in butadiene 

emissions between years 2006 and 2009. 

Based on this information, the revised 

MIR associated with actual MTVLO 

emissions from this facility is less than 

1-in-1 million.12 No other facility has 

MTVLO emissions resulting in a MIR 

greater than 1-in-1 million. The 

corrections to the emission data files 

and risk results are included in 

memoranda in the docket. 

Comment: One commenter noted that 

it is not clear whether offshore loading 

terminals at refineries would be exempt 

from proposed changes to MTVLO 

MACT. The commenter recommended 

rule text changes for 40 CFR 

63.560(d)(6). The commenter noted that 

their facility may be one of the few (or 

only) offshore loading terminals in the 

United States, meaning the cost analysis 

and controls selected for this 

subcategory by the MTVLO MACT 

proposal are likely to set a precedent in 

the Refinery RTR rule process. 


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13RACT and MACT requirements are both 

included in 40 CFR part 63, subpart Y—National 

Emission Standards of Marine Tank Vessel Loading 

Operations. 

Response: We have considered the 

comment and agree that the proposed 

rule was not clear. Therefore, this final 

rule clarifies applicability for petroleum 

refineries. 

Comment: Three commenters 

supported submerged fill requirements. 

One commenter supported the 

requirement for submerged fill for 

previously-exempt subcategories, and 

stated that submerged fill is costeffective. One commenter agreed with 

EPA’s decision to establish submerged 

fill as the MACT floor. The Commenter 

noted that submerged fill, as defined by 

the Coast Guard, has been standard 

industry practice for some time, reduces 

HAP emissions, and eliminates static 

electricity from free-falling cargo, 

thereby enhancing operational safety. 

One commenter suggested that if 

additional control is needed, a work 

practice standard (submerged fill) 

should be adopted for the offshore 

loading subcategory instead of 99- 

percent efficient vapor control systems. 

Response: The commenters agree with 

the proposal to require submerged fill as 

the floor level of control for the two 

subcategories not previously regulated 

(those facilities emitting less than 10/25 

TPY of HAP from MTVLO, and those 

facilities located more than 0.5 miles 

from shore). We have included the 

submerged fill requirement in the final 

rule. 

Comment: One commenter noted the 

discussion in the preamble is confusing 

concerning whether the proposed 

1 million bbl/yr threshold is a MACT 

measure, or a reasonably available 

control technology (RACT) measure. 

The preamble states that the existing 

MACT standards require vapor recovery 

control for at least 10 million bbl/yr of 

gasoline, however, this provision is in 

the RACT provisions of the existing 

rule. Furthermore, the commenter 

asserts that the proposal preamble 

justifies the proposed new 1 million 

bbl/yr threshold on a volatile organic 

compounds (VOC) RACT basis rather 

than a HAP (MACT) basis, and describes 

the lower threshold as a beyond-thefloor MACT measure for the two 

previously-exempt subcategories. In 

addition, the commenter noted that the 

throughput threshold for a major source 

is 5 million bbl/yr, and asked how a 

facility only loading 1 million bbl/yr 

could be considered a major source, and 

subject to MACT. The commenter stated 

that the preamble discussion should be 

consistent with both the basis presented 

for justification of this measure, and the 

language of the rule. 

Response: The proposed and final 

rules only pertain to the MACT 

requirements in the rule that address 

major sources of HAP; no changes were 

proposed for the RACT requirements.13

While the commenter noted that a 

particular throughput would be required 

to define a major source of HAP, the 

throughput levels for MTVLO were not 

defined with the intent of identifying a 

major source. Applicability for the 

current rule is two-fold: (1) Is the 

facility, as a whole, a major source of 

HAP; and (2) does the facility conduct 

MTVLO. 

We agree that the discussion in the 

proposed preamble regarding the 

gasoline throughput thresholds used to 

analyze the proposed 1 million bbl/yr 

gasoline threshold was not clear (75 FR 

65115). As discussed below, we have 

not included a requirement for MTVLO 

facilities with a throughput of 1 million 

bbl/yr of gasoline to install and operate 

vapor recovery controls in the final rule. 

Comment: Two commenters stated 

that EPA’s cost-effectiveness 

determination for the beyond-the-floor 

MACT is flawed/not accurate, and noted 

concerns that the cost analysis is based 

on information from one vendor, for one 

control technology, for a single facility, 

and assumed installation costs. One 

commenter stated that EPA’s cost 

information was limited. One 

commenter indicated that beyond-thefloor MACT options must be costeffective in reducing HAP, and since 

EPA’s estimated cost was $74,000/ton 

HAP emissions reduced, it is not costeffective, and, thus, illegal to 

promulgate this requirement as a MACT 

measure. The commenter stated that the 

real cost, based on corrected values of 

HAP content, would be $180,000/ton 

HAP emissions reduced. The 

commenter requested that EPA rescind 

the proposed action. 

Commenters stated that the EPA does 

not have the authority to consider nonHAP emission reductions in conducting 

a review of existing MACT standards 

under CAA section 112(d). The 

commenters noted that, in setting 

MACT standards, the CAA expressly 

forbids EPA from considering the cobenefits of non-HAP emissions 

reductions, and the MACT floor must be 

based on the HAP emission reductions 

achieved; any beyond-the-floor standard 

may be based only on consideration of 

the cost of achieving HAP emission 

reductions, and any non-air quality 

health and environmental impacts and 

energy requirements. 

Response: As discussed earlier, we 

established and proposed the MACT 

floor as submerged fill for the two 

subcategories not previously regulated 

(facilities emitting less than 10/25 TPY 

of HAP from MTVLO, and those 

‘‘offshore’’ facilities located more than 

0.5 miles from shore). Additionally, 

under the CAA section 112(d)(6) 

technology review of the existing 

MTVLO MACT, and as setting the 

beyond-the-floor MACT standards for 

the two subcategories not previously 

regulated, we proposed that existing 

facilities loading 1 million bbl/yr of 

gasoline, install vapor controls either 

meeting 97-percent control, or the 

equivalent emission limit of 10 mg/l (10 

milligrams of total organic compound 

emissions per liter of gasoline loaded). 

At proposal, we estimated the cost and 

emissions reductions for installing 

vapor controls for facilities loading 

1 million bbl/yr of gasoline, and we 

estimated a cost of $74,000/ton HAP 

emissions reduction (190 TPY HAP 

emissions reduction) and $5,500/ton 

VOC emissions reduction (2,600 TPY 

VOC emissions reduction). 

As discussed in the cost section of the 

response to comment and the cost 

memoranda in the docket, we received 

and considered the comments on the 

control costs, emission rate differences 

for ships and barges, additional costs for 

offshore facilities, and the HAP content 

in gasoline. All those factors change the 

cost-effectiveness calculations. Based on 

information received as part of the 

comments, we reevaluated the costs 

used at proposal. The revised costs and 

emissions for the proposed threshold of 

1 million bbl/yr gasoline are as high as 

$500,000 per ton of HAP emissions 

reduced (1.9 tons of HAP reduced 

annually per facility) for loading ships 

offshore. Looking at a less stringent 

threshold for the final rule of 7 million 

bbl/yr of gasoline loaded would likely 

achieve little or no HAP or VOC 

emission reductions, since many 

facilities near that threshold were 

required to install controls under the 

current rule. We agree with commenters 

that these costs are unreasonable. 

Therefore, we are not including the 

proposed vapor controls for loading 1 

million bbl/yr of gasoline requirement 

in the final rule. We disagree with the 

commenter that we cannot consider 

VOC benefits, but, given that we are not 

requiring these additional vapor 

controls for HAP, the issue is now moot. 

Comment: One commenter stated that 

VOC and HAP emission rates from ships 

and barges at their facility are lower 

than EPA uses in its cost-effectiveness 

determinations. EPA used the 

uncontrolled gasoline loading emissions 

factor for barges (3.4 pounds (lb) VOC/ 

1,000 gallons (gal) loaded), but should 


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use the emissions factor for ocean-going 

ships and barges (1.8 lb VOC/1,000 gal 

loaded); AP–42 notes in Chapter 5 that 

vapor saturation is much lower in ship 

and barge loading. 

Response: We agree with the 

commenter that the emission factors for 

ships and barges, as applicable to the 

type of marine vessel being loaded, 

should be considered for estimating 

VOC and HAP emissions. We have 

revised the emission estimates using the 

barge and ship emission factors from 

AP–42. 

Comment: One commenter noted that 

HAP content in the vapor phase is 3.0 

percent, and not the 7.3 percent 

determined by EPA in the proposal. The 

commenter provided the analysis 

showing the calculations, based on 

conventional gasoline, where the 

commenter assumed no methyl tertiary 

butyl ether (MTBE) in the gasoline; no 

change to the total partial pressure; and 

benzene concentration of 1.8 percent. 

Another commenter stated the HAP 

emissions factor is approximately 50 

percent of the EPA factor. 

Response: In the proposal, we 

determined that the HAP content in the 

vapor phase of gasoline of 7.3 percent 

(based on 2006 gasoline composition) 

was appropriate, and used 7.3 percent 

in our emissions estimates for gasoline 

loading at MTVLO. We reviewed and 

considered the data provided by the 

commenter, and reviewed HAP content 

information from several other sources 

that have more recent gasoline 

composition data. We conducted a 

reanalysis of the HAP content, looking 

at both conventional and reformulated 

gasoline, considering the phase-out of 

MTBE and the requirements for reduced 

benzene content. Based on the revised 

analysis, we concluded that a good 

typical value for HAP content in the 

vapor is 5.0 percent. The revised 

analysis of HAP content in gasoline is 

in a memorandum in the docket. 

Comment: Commenters argued that 

lean oil absorption technology is not 

capable of meeting the rule efficiency, is 

not in common use for MTVLO, and 

must be demonstrated as an effective 

technology for MTVLO. One commenter 

cited an instance where lean oil 

absorption installed on MTVLO was 

unable to meet control requirements in 

their permit. The commenter stated that 

lean oil absorption is typically used in 

smaller applications. Commenters stated 

that EPA must provide actual 

performance data for lean oil absorption 

technology in the MTVLO source 

category. 

Response: Lean oil absorption systems 

are not new control technologies for 

MTVLO. Lean oil absorption was 

discussed as a vapor recovery device, in 

addition to refrigeration (condenser) 

systems and carbon adsorption systems, 

for marine vessel loading in the 1987 

National Research Council, Committee 

on Control and Recovery of 

Hydrocarbons Vapors from Ships and 

Barges report, Controlling Hydrocarbon 

Emissions from Tank Vessel Loading. 

Lean oil absorption also was discussed 

in the 1992 proposal, Technical Support 

Document for MTVLO (EPA–450/3–92– 

001a), and has been installed as vapor 

recovery devices for MTVLO. While we 

have not selected a beyond-the-floor 

option as MACT, we would like to 

clarify that lean oil absorption systems 

were included in the cost analysis for 

the beyond-the-floor option, because 

lean oil absorption systems achieving an 

emission reduction efficiency of 97 

percent are used by at least one MTVLO 

facility, and because the units are a 

relatively less expensive control 

technology option that has the added 

benefit of recovered product. 

D. Startup, Shutdown, and Malfunction 

(SSM) Requirements 

Comment: Two commenters state that 

EPA offers little support for the 

assertion that it is reasonable to 

interpret CAA section 112 as not 

requiring EPA to account for 

malfunctions in setting emissions 

standards, or that malfunctions are not 

a distinct operating mode. The 

commenters state that it does not make 

sense for EPA to assert that 

malfunctions are part of normal 

operations, but then exclude emissions 

from these parts of normal operations in 

the determination of the emissions 

limits. The commenters state that, due 

to the unplanned nature and variety of 

potential malfunctions, it would be 

difficult, if not impossible, for EPA to 

gather data and set an emissions 

standard for periods of malfunction. 

Due to these difficulties, the 

commenters suggest that, under the 

authority of CAA section 112(h), EPA 

prescribe alternative design, equipment, 

work practice, or operational standards 

where it is not feasible to set or enforce 

a numerical emissions limit. The 

commenters add that there are work 

practices that can be identified as being 

the best to minimize emissions during a 

malfunction, and EPA must 

acknowledge the fact that even the bestperforming sources experience 

malfunction events. 

Response: 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. Under CAA section 112, 

emissions standards for new sources 

must be no less stringent than the level 

‘‘achieved’’ by the best controlled similar 

source, and for existing sources, 

generally, must be no less stringent than 

the average emission limitation 

‘‘achieved’’ by the best performing 12 

percent of sources in the category. There 

is nothing in CAA 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 

EPA accounts for variability in setting 

emissions standards consistent with the 

CAA section 112 case law, nothing in 

that case law requires the Agency to 

consider malfunctions as part of that 

analysis. 

CAA section 112 uses the concept of 

‘‘best controlled’’ and ‘‘best performing’’ 

unit in defining the level of stringency 

that CAA 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. Accounting for 

malfunctions would be difficult, if not 

impossible, given the myriad different 

types of malfunctions that can occur 

across all sources in the category, 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) 

(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 


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to standards that are significantly less 

stringent than levels that are achieved 

by a well-performing nonmalfunctioning source. EPA’s approach 

to malfunctions is consistent with CAA 

section 112, and is a reasonable 

interpretation of the statute. 

Comment: Several commenters argued 

that emissions limits should not apply 

during SSM events, while other 

commenters stated that SSM emissions 

should be included in calculations of 

emissions and standards. Commenters 

suggested that requiring continuous 

compliance during periods of SSM 

constitutes beyond-the-floor 

requirements, and the Agency should 

have to justify this more stringent level 

of control, because facilities would need 

to install redundant control systems and 

bypass systems. They further stated that, 

in order to assure that SSM are 

appropriately accommodated, EPA must 

either assure that the data on which the 

standard is based include representative 

data from such periods, or, alternatively, 

set a separate work practice standard to 

properly accommodate SSM, and they 

cited case law supporting establishment 

of special SSM provisions. Further, 

several commenters stated that 

compliance with emissions standards 

during malfunction events will be 

difficult to gauge since emissions testing 

during such events is nearly impossible, 

given the sporadic and unpredictable 

nature of malfunctions. The commenters 

contended that the rules could have the 

effect of forcing units to choose between 

safety and compliance with emissions 

requirements. The commenters stated 

that, for some affected units, 

malfunctions, by their very nature, 

create unsafe conditions which can lead 

to excessive combustible mixtures that 

can result in explosions, equipment 

damage, and personnel hazards. 

Commenters also noted that some of the 

MACT standards included in this action 

did not rely exclusively upon the 

General Provisions, and, thus, were not 

immediately affected by the Court’s 

vacatur of the SSM exemptions in the 

General Provisions. The commenters 

pointed out that, given that these 

categories were not immediately 

affected, EPA is not compelled to 

remove the exemptions that are 

established within these individual 

category-specific MACT standards. 

Other commenters expressed support 

for requiring continuous compliance 

with the MACT standards, including 

periods of SSM. They noted that 

malfunctions are also preventable, and, 

thus, there should be no relief from the 

standards during these events. 

Response: At this time, we are not 

promulgating separate emission 

standards for periods of startup and 

shutdown for three of the four categories 

addressed in this rule, because we 

believe compliance with the standards 

is achievable during these periods. In 

the case of the Pharmaceuticals 

Production MACT standards, we expect 

the difference in emission levels during 

periods of startup and shutdown are 

insignificant, and that facilities in this 

source category should be able to 

comply with the standards during these 

times. In the case of the Printing and 

Publishing MACT standards, we believe 

there are sufficiently long averaging 

times incorporated into the emissions 

limits that facilities should be able to 

comply during periods of startup and 

shutdown. In the case of MTVLO, 

loading of marine tank vessels occurs in 

‘‘batches,’’ and general practice is for the 

loading operators to test out the vapor 

control system before it is attached to 

the tank vessel. In the case of Group I 

Polymers and Resins, one commenter 

stated that organic HAP emissions that 

are required to be sent to emissions 

control equipment (i.e., flares) may not 

be able to comply with the MACT 

standards during periods of shutdown. 

The commenter stated that they may not 

always be able to route some of their 

process vents to a flare during periods 

of shutdown due to low pressure or low 

heat content in the process vent. EPA 

agrees with the commenter that it is not 

possible to comply with the applicable 

standard during periods of shutdown, 

and is establishing alternative emissions 

standards that apply during these 

periods. 

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 equipment, process 

equipment, or a process to operate in a 

normal or usual manner * * *’’ (40 CFR 

60.2). EPA has determined that 

malfunctions should not be viewed as a 

distinct operating mode, and, therefore, 

any emissions that occur at such times 

do not need to be factored into 

development of CAA section 112 

standards, which, once promulgated, 

apply at all times. Also refer to section 

III.E of this preamble, and the response 

to comments document available in the 

docket for this action for additional 

discussion of this issue. 

Comment: Commenters on the Group 

I Polymers and Resins MACT disagreed 

with EPA’s statement that the proposed 

rules will reduce the reporting burden 

associated with having to prepare and 

submit an SSM report. The commenters 

also state that the claims EPA makes 

that EPA is not proposing any new 

paperwork requirements is false if a 

facility wants to claim an affirmative 

defense. The affirmative defense 

provision contains much more onerous 

reporting and implied recordkeeping 

requirements than the existing rules. 

The commenters state that EPA needs to 

account for the information collection 

burden associated with affirmative 

defense in the Information Collection 

Request (ICR) for the SSM portion of the 

Group I Polymers and Resins MACT, 

and otherwise comply with the 

Paperwork Reduction Act. 

Response: As discussed in section 

VII.B of this preamble, EPA is providing 

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, and is providing 

administrative adjustments to the ICR 

for the MACT standards subject to these 

final rules that show what the 

notification, recordkeeping, and 

reporting requirements associated with 

the assertion of the affirmative defense 

might entail. 

Comment: Two commenters note that, 

in making changes to the rules to 

exclude the SSM exemption and add the 

general duty clause to the MACT 

standards, three of the six MACT 

standards in the proposal include the 

statement that ‘‘the general duty to 

minimize emissions does not require the 

owner or operator to make any further 

efforts to reduce emissions if levels 

required by this standard have been 

achieved,’’ but the other three do not 

(i.e., Group I Polymers and Resins, 

MTLVO, and Printing and Publishing 

Industry MACT standards). The 

commenters state that this clarifying 

language should be included in all six 

standards. 

Response: We agree that this language 

should be included in each of the six 

MACT standards, and we have added 

this clarifying language to 40 CFR 

63.823(b) in the Printing and Publishing 

Industry MACT standards and 40 CFR 

63.562(e) in the MTVLO MACT 

standards. However, we find that 40 

CFR 63.483 in the Group 1 Polymers 

and Resins MACT standards already 

includes this language, and we have not 

revised the proposed language. 

VI. Impacts of the Final Rules 

The final changes to the Group I 

Polymers and Resins, MTVLO, 

Pharmaceuticals Production, and the 

Printing and Publishing Industry MACT 

standards are not estimated to have any 

significant emission reductions, costs, 

or other impacts. 


emcdonald on DSK2BSOYB1PROD with RULES3
22584 Federal Register / Vol. 76, No. 77 / Thursday, April 21, 2011 / Rules and Regulations 

VII. Statutory and Executive Order 

Reviews 

A. Executive Orders 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.’’ This 

action is a significant regulatory action 

because it raises novel legal and policy 

issues. Accordingly, 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 the final rules have 

been submitted for approval to OMB 

under the Paperwork Reduction Act, 44 

U.S.C. 3501, et seq. The information 

collection requirements are not 

enforceable until OMB approves them. 

The 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 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. 

These final rules would require 

maintenance inspections of the control 

devices, but would not require any 

notifications or reports beyond those 

required by the General Provisions. The 

recordkeeping requirements require 

only the specific information needed to 

determine compliance. 

When a malfunction occurs, sources 

must report them according to the 

applicable reporting requirements of 40 

CFR part 63, subparts U, Y, KK, and 

GGG. An affirmative defense to civil 

penalties for exceedances of emission 

limits that are caused by malfunctions is 

available to a source if it can 

demonstrate that certain criteria and 

requirements are satisfied. The criteria 

ensure that the affirmative defense is 

available only where the event that 

causes an exceedance of the emission 

limit 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) and where the 

source took necessary actions to 

minimize emissions. In addition, the 

source must meet certain notification 

and reporting requirements. For 

example, the source must prepare a 

written root cause analysis and submit 

a written report to the Administrator 

documenting that it has met the 

conditions and requirements for 

assertion of the affirmative defense. 

For two of the rules promulgated, 

National Emissions Standards for Group 

I Polymers and Resins (Butyl Rubber 

Production, Epichlorohydrin Elastomers 

Production, Ethylene Propylene Rubber 

Production, HypalonTM Production, 

Neoprene Production, NBR Production, 

Polybutadiene Rubber Production, 

Polysulfide Rubber Production, and 

Styrene Butadiene Rubber and Latex 

Production); and Pharmaceuticals 

Production, 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, EPA has provided 

administrative adjustments to these two 

ICR that show what the notification, 

recordkeeping, and reporting 

requirements associated with the 

assertion of the affirmative defense 

might entail. EPA’s estimate for the 

required notification, reports, and 

records, including the root cause 

analysis, totals $3,141, 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 emission 

limit. The estimate also includes time to 

produce and retain the record and 

reports for submission to EPA. 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 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 

emission 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, subparts U and GGG 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. 

With respect to MTVLO and Printing 

and Publishing source categories, 

operations would not proceed or 

continue if there is a malfunction of a 

control device, and, thus, it is unlikely 

that a control device malfunction would 

cause an exceedance of any emission 

limit. The existing MTVLO rule requires 

the vapor displaced during loading of 

the vessel be sent to vapor processors 

that meet specified efficiency standards. 

In discussions with industry, and at 

plant visits, the industry reports that 

marine vessels are not allowed to start 

loading until the vapor collection and 

processor system has been thoroughly 

checked for proper operation. If the 

loading equipment, and the vapor 

collection and possessor system are not 

properly operating, the vessel is not 

allowed to load. In addition, if processor 

system settings are not maintained 

during vessel loading, loading is 

automatically stopped. Therefore, we 

believe there is no burden to the 

industry for the affirmative defense 

provisions added to the final rule. 

Additionally, an ICR document (number 

1679.08) was prepared and submitted 

for the October 21, 2010, proposed rule 

that included burdens associated with 

testing, reporting, and recordkeeping for 

the proposed lowering of the threshold 

for when additional vapor collection 

and processor systems are required. In 

this action we are not requiring the 

lower threshold for additional vapor 

collection and processor systems. 

However, submerged fill requirements 

are added in the final rule, and are 

already being met under Coast Guard 

rules; thus, there is no additional ICR 

burden associated with the final rule for 

MTVLO. 

For Printing and Publishing, we do 

not believe that printing and publishing 


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Federal Register / Vol. 76, No. 77 / Thursday, April 21, 2011 / Rules and Regulations 22585 

facilities have excess emissions caused 

by malfunctions. Printing presses and 

control devices are interlocked. If the 

control device is not operating, the press 

cannot start printing. If the control 

device stops operating, the press stops 

printing. Also, given the characteristics 

of the affected units at printing and 

publishing sources, EPA does not 

believe that any other type of 

malfunction could conceivably cause 

excess emissions. 

Therefore, sources within these two 

source categories are not expected to 

have any need or use for the affirmative 

defense. Thus, for these source 

categories, EPA is not assigning any 

burden associated with affirmative 

defense. 

For the Group I Polymers and Resins 

MACT standards, an ICR document 

prepared by EPA for the amendments to 

the standards has been assigned EPA 

ICR number 2410.02, which has been 

revised since the proposed estimate 

assigned EPA ICR number 2410.01. 

Burden changes associated with these 

amendments result from the reporting 

and recordkeeping requirements of the 

affirmative defense provisions added to 

the rule; the reporting and 

recordkeeping requirements associated 

with the new back-end process 

operation emission limits for 

Epichlorohydrin Elastomers, Neoprene 

Rubber, NBR, and Butyl Rubber 

Production source categories; and the 

reporting and recordkeeping 

requirements associated with the new 

HCl emission limits for the front-end 

process vents for the Ethylene 

Propylene Rubber and Butyl Rubber 

Production source categories. The 

respondents’ annual reporting and 

recordkeeping burden for this collection 

(averaged over the first 3 years after the 

effective date of the standards) for these 

amendments is estimated to be 251 

labor hours at a cost of $12,222 per year. 

The annual burden for the Federal 

government (averaged over the first 

3 years after the effective date of the 

standard) for these amendments is 

estimated to be 9 labor hours at a cost 

of $408 per year. 

For the Pharmaceuticals Production 

MACT standards ICR document 

prepared by EPA, which has been 

revised to include the amendments to 

the standards, has been assigned EPA 

ICR number 1781.06. Burden changes 

associated with these amendments 

result from the reporting and 

recordkeeping requirements of the 

affirmative defense provisions added to 

the rule. The change in respondents’ 

annual reporting and recordkeeping 

burden associated with these 

amendments for this collection 

(averaged over the first 3 years after the 

effective date of the standards) is 

estimated to be 20 labor hours at a cost 

of $2,094 per year. There is no estimated 

change in annual burden to the Federal 

government for these amendments. 

An agency may not conduct or 

sponsor, and a person is not required to 

respond to, a collection of information 

unless it displays a currently valid OMB 

control number. The OMB control 

numbers for EPA’s regulations in 40 

CFR are listed in 40 CFR part 9. When 

these ICR are approved by OMB, the 

Agency will publish a technical 

amendment to 40 CFR part 9 in the 

Federal Register to display the OMB 

control numbers for the approved 

information collection requirements 

contained in the final rules. 

C. Regulatory Flexibility Act 

The Regulatory Flexibility Act (RFA) 

generally requires an agency to prepare 

a regulatory flexibility analysis of any 

rule subject to notice and comment 

rulemaking requirements under the 

Administrative Procedure Act, or any 

other statute, unless the agency certifies 

that the rule will not have a significant 

economic impact on a substantial 

number of small entities. Small entities 

include small businesses, small 

organizations, and small governmental 

jurisdictions. 

For purposes of assessing the impact 

of these final rules on small entities, 

small entity is defined as: (1) A small 

business as defined by the Small 

Business Administration’s regulations at 

13 CFR 121.201; (2) a small 

governmental jurisdiction that is a 

government of a city, county, town, 

school district, or special district with a 

population of less than 50,000; and 

(3) a small organization that is any notfor-profit enterprise which is 

independently owned and operated and 

is not dominant in its field. 

After considering the economic 

impacts of these final rules on small 

entities, I certify that this action will not 

have a significant economic impact on 

a substantial number of small entities. 

This final action will not impose any 

requirements on small entities. These 

final rules will not change the level of 

any emission standard, or impose 

emission measurements or reporting 

requirements on small entities beyond 

those specified in existing regulations. 

D. Unfunded Mandates Reform Act 

These rules do not contain a Federal 

mandate that may result in expenditures 

of $100 million or more for State, local, 

and tribal governments, in the aggregate, 

or the private sector in any one year. 

Thus, these rules are not subject to the 

requirements of sections 202 or 205 of 

UMRA. 

These rules are also not subject to the 

regulatory requirements that might 

significantly or uniquely affect small 

governments. They contain no 

requirements that apply to such 

governments or impose obligations 

upon them. 

E. Executive Order 13132: Federalism 

This action does not have federalism 

implications. It will not have substantial 

direct effects on the States, on the 

relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132. These final 

rules primarily affect private industry, 

and do not impose significant economic 

costs on State or local governments. 

Thus, Executive Order 13132 does not 

apply to this action. 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

This action does not have tribal 

implications, as specified in Executive 

Order 13175 (65 FR 67249, November 9, 

2000). It will not have substantial direct 

effect 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 action. 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

Risks and Safety Risks 

This action is not subject to Executive 

Order 13045 (62 FR 19885, April 23, 

1997), because it is not economically 

significant as defined in Executive 

Order 12866, and because the Agency 

does not believe the environmental 

health or safety risks addressed by this 

action present a disproportionate risk to 

children. This action will not relax the 

control measures on existing regulated 

sources, and EPA’s risk assessments 

(included in the docket for the proposed 

rules) demonstrate that the existing 

regulations are health protective. 

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 


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22586 Federal Register / Vol. 76, No. 77 / Thursday, April 21, 2011 / Rules and Regulations 

significant adverse energy effect on the 

supply, distribution, or use of energy. 

This action will not create any new 

requirements for sources in the energy 

supply, distribution, or use sectors. 

Further, we have concluded that these 

final rules are not likely to have any 

adverse energy effects. 

I. National Technology Transfer and 

Advancement Act 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (NTTAA), Public Law 104– 

113, 12(d) (15 U.S.C. 272 note) directs 

EPA to use voluntary consensus 

standards (VCS) in its regulatory 

activities, unless to do so would be 

inconsistent with applicable law or 

otherwise impractical. VCS are 

technical standards (e.g., materials 

specifications, test methods, sampling 

procedures, and business practices) that 

are developed or adopted by VCS 

bodies. NTTAA directs EPA to provide 

Congress, through OMB, explanations 

when the Agency decides not to use 

available and applicable VCS. 

This action does not involve technical 

standards. Therefore, 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. 

EPA has determined that these final 

rules will not have disproportionately 

high and adverse human health or 

environmental effects on minority or 

low-income populations, because they 

do not affect the level of protection 

provided to human health or the 

environment. To examine the potential 

for any environmental justice issues that 

might be associated with each source 

category, we evaluated the distributions 

of HAP-related cancer and non-cancer 

risks across different social, 

demographic, and economic groups 

within the populations living near the 

facilities where these source categories 

are located. Our analyses also show that, 

for all the source categories evaluated, 

there is no potential for an adverse 

environmental effect or human health 

multipathway effects, and that acute 

and chronic non-cancer health impacts 

are unlikely. Our additional analysis of 

facility-wide risks showed that the 

maximum facility-wide cancer risks for 

all source categories are within the 

range of acceptable risks, and that the 

maximum chronic non-cancer risks are 

unlikely to cause health impacts. Our 

additional analysis of the demographics 

of the exposed population may show 

disparities in risks between 

demographic groups for all three 

categories, but EPA has determined that, 

although there may be a disparity in 

risks between demographic groups, no 

group is exposed to unacceptable level 

of risk. 

The rules will not relax the control 

measures on emissions sources 

regulated by the rules, and, therefore, 

will not increase risks to any 

populations exposed to these emissions 

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 these final rules and 

other required information to the United 

States Senate, the United States House 

of Representatives, and the Comptroller 

General of the United States prior to 

publication of the final rules 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). The final rules will 

be effective on April 21, 2011. 

List of Subjects for 40 CFR Part 63 

Environmental protection, 

Administrative practice and procedures, 

Air pollution control, Hazardous 

substances, Intergovernmental relations, 

Reporting and recordkeeping 

requirements. 

Dated: March 31, 2011. 

Lisa P. Jackson, 

Administrator. 

For the reasons stated in the 

preamble, the Environmental Protection 

Agency amends title 40, chapter I, of the 

Code of Federal Regulations 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 U—[Amended] 

■ 2. Section 63.480 is amended by 

revising paragraph (j) to read as follows: 

§ 63.480 Applicability and designation of 

affected sources. 

* * * * * 

(j) Applicability of this subpart. 

Paragraphs (j)(1) through (4) of this 

section shall be followed during periods 

of non-operation of the affected source 

or any part thereof. 

(1) The emission limitations set forth 

in this subpart and the emission 

limitations referred to in this subpart 

shall apply at all times except during 

periods of non-operation of the affected 

source (or specific portion thereof) 

resulting in cessation of the emissions to 

which this subpart applies. However, if 

a period of non-operation of one portion 

of an affected source does not affect the 

ability of a particular emission point to 

comply with the emission limitations to 

which it is subject, then that emission 

point shall still be required to comply 

with the applicable emission limitations 

of this subpart during the period of nonoperation. For example, if there is an 

overpressure in the reactor area, a 

storage vessel that is part of the affected 

source would still be required to be 

controlled in accordance with the 

emission limitations in § 63.484. 

(2) The emission limitations set forth 

in subpart H of this part, as referred to 

in § 63.502, shall apply at all times, 

except during periods of non-operation 

of the affected source (or specific 

portion thereof) in which the lines are 

drained and depressurized, resulting in 

cessation of the emissions to which 

§ 63.502 applies. 

(3) The owner or operator shall not 

shut down items of equipment that are 

required or utilized for compliance with 

this subpart during times when 

emissions (or, where applicable, 

wastewater streams or residuals) are 

being routed to such items of equipment 

if the shutdown would contravene 

requirements of this subpart applicable 

to such items of equipment. 

(4) In response to an action to enforce 

the standards set forth in this subpart, 

an owner or operator may assert an 

affirmative defense to a claim for civil 

penalties for exceedances of such 

standards that are caused by a 

malfunction, as defined in § 63.2. 

Appropriate penalties may be assessed, 

however, if the owner or operator fails 

to meet the burden of proving all the 

requirements in the affirmative defense. 

The affirmative defense shall not be 

available for claims for injunctive relief. 


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Federal Register / Vol. 76, No. 77 / Thursday, April 21, 2011 / Rules and Regulations 22587 

(i) To establish the affirmative defense 

in any action to enforce such a limit, the 

owners or operators of a facility must 

timely meet the notification 

requirements of paragraph (j)(4)(ii) of 

this section, and must prove by a 

preponderance of evidence that: 

(A) The excess emissions were caused 

by a sudden, infrequent, and 

unavoidable failure of air pollution 

control and monitoring equipment, or a 

process to operate in a normal and usual 

manner; and could not have been 

prevented through careful planning, 

proper design, or better operation and 

maintenance practices; did not stem 

from any activity or event that could 

have been foreseen and avoided, or 

planned for; and were not part of a 

recurring pattern indicative of 

inadequate design, operation, or 

maintenance; 

(B) Repairs were made as 

expeditiously as possible when the 

applicable emission limitations were 

being exceeded. Off-shift and overtime 

labor were used, to the extent 

practicable to make these repairs; 

(C) The frequency, amount, and 

duration of the excess emissions 

(including any bypass) were minimized 

to the maximum extent practicable 

during periods of such emissions; 

(D) If the excess emissions 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; 

(E) All possible steps were taken to 

minimize the impact of the excess 

emissions on ambient air quality, the 

environment, and human health; 

(F) All emissions monitoring and 

control systems were kept in operation, 

if at all possible, consistent with safety 

and good air pollution control practices; 

(G) All of the actions in response to 

the excess emissions were documented 

by properly signed, contemporaneous 

operating logs; 

(H) At all times, the facility was 

operated in a manner consistent with 

good practices for minimizing 

emissions; and 

(I) The owner or operator has 

prepared a written root cause analysis, 

the purpose of which is to determine, 

correct, and eliminate the primary 

causes of the malfunction and the 

excess emissions resulting from the 

malfunction event at issue. The analysis 

shall also specify, using the best 

monitoring methods and engineering 

judgment, the amount of excess 

emissions that were the result of the 

malfunction. 

(ii) Notification. The owner or 

operator of the facility experiencing an 

exceedance of its emission limit(s) 

during a malfunction shall notify the 

Administrator by telephone or facsimile 

(FAX) transmission as soon as possible, 

but no later than 2 business days after 

the initial occurrence of the 

malfunction, if it wishes to avail itself 

of an affirmative defense to civil 

penalties for that malfunction. The 

owner or operator seeking to assert an 

affirmative defense shall also submit a 

written report to the Administrator 

within 45 days of the initial occurrence 

of the exceedance of the standard in this 

subpart to demonstrate, with all 

necessary supporting documentation, 

that it has met the requirements set forth 

in paragraph (j)(4)(i) of this section. The 

owner or operator may seek an 

extension of this deadline for up to 30 

additional days by submitting a written 

request to the Administrator before the 

expiration of the 45 day period. Until a 

request for an extension has been 

approved by the Administrator, the 

owner or operator is subject to the 

requirement to submit such report 

within 45 days of the initial occurrence 

of the exceedance. 

■ 3. Section 63.481 is amended by 

revising paragraph (c) to read as follows: 

§ 63.481 Compliance dates and 

relationship of this subpart to existing 

applicable rules. 

* * * * * 

(c) With the exceptions provided in 

paragraphs (c)(1) through (3) of this 

section, existing affected sources shall 

be in compliance with this subpart no 

later than June 19, 2001, as provided in 

§ 63.6(c), unless an extension has been 

granted as specified in paragraph (e) of 

this section. 

(1) Existing affected sources 

producing epichlorohydrin elastomer, 

butyl rubber, neoprene rubber, and 

nitrile butadiene rubber shall be in 

compliance with the applicable 

emission limitation in § 63.494(a)(4) no 

later than April 23, 2012. 

(2) Existing affected sources 

producing butyl rubber and ethylene 

propylene rubber shall be in compliance 

with § 63.485(q)(1) no later than April 

23, 2012. 

(3) Compliance with § 63.502 is 

covered by paragraph (d) of this section. 

* * * * * 

■ 4. Section 63.482 is amended by 

removing the definition of ‘‘halobutyl 

rubber,’’ adding in alphabetical order a 

definition for ‘‘affirmative defense,’’ 

revising the definitions of ‘‘back-end,’’ 

‘‘butyl rubber,’’ ‘‘elastomer product,’’ 

‘‘initial start-up,’’ and ‘‘product’’ in 

paragraph (b) to read as follows: 

§ 63.482 Definitions. 

* * * * * 

(b) * * * 

Affirmative defense means, in the 

context of an enforcement proceeding, a 

response or a 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. 

* * * * * 

Back-end refers to the unit operations 

in an EPPU following the stripping 

operations. Back-end process operations 

include, but are not limited to, filtering, 

coagulation, blending, concentration, 

drying, separating, and other finishing 

operations, as well as latex and crumb 

storage. Back-end does not include 

storage and loading of finished product 

or emission points that are regulated 

under §§ 63.484, 63.501, or 63.502 of 

this subpart. 

* * * * * 

Butyl rubber means a copolymer of 

isobutylene and other monomers. 

Typical other monomers include 

isoprene and methylstyrene. A typical 

composition of butyl rubber is 

approximately 85- to 99-percent 

isobutylene, and 1- to 15-percent other 

monomers. Most butyl rubber is 

produced by precipitation 

polymerization, although other methods 

may be used. Halobutyl rubber is a type 

of butyl rubber elastomer produced 

using halogenated copolymers. 

* * * * * 

Elastomer product means one of the 

following types of products, as they are 

defined in this section: 

(1) Butyl Rubber; 

(2) Epichlorohydrin Elastomer; 

(3) Ethylene Propylene Rubber; 

(4) Hypalon TM; 

(5) Neoprene; 

(6) Nitrile Butadiene Rubber; 

(7) Nitrile Butadiene Latex; 

(8) Polybutadiene Rubber/Styrene 

Butadiene Rubber by Solution; 

(9) Polysulfide Rubber; 

(10) Styrene Butadiene Rubber by 

Emulsion; and 

(11) Styrene Butadiene Latex. 

* * * * * 

Initial start-up means the first time a 

new or reconstructed affected source 

begins production of an elastomer 

product, or, for equipment added or 

changed as described in § 63.480(i), the 

first time the equipment is put into 

operation to produce an elastomer 

product. Initial start-up does not 

include operation solely for testing 

equipment. Initial start-up does not 

include subsequent start-ups of an 

affected source or portion thereof 


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22588 Federal Register / Vol. 76, No. 77 / Thursday, April 21, 2011 / Rules and Regulations 

following shutdowns, or following 

changes in product for flexible 

operation units, or following recharging 

of equipment in batch operation. 

* * * * * 

Product means a polymer produced 

using the same monomers, and varying 

in additives (e.g., initiators, terminators, 

etc.); catalysts; or in the relative 

proportions of monomers, that is 

manufactured by a process unit. With 

respect to polymers, more than one 

recipe may be used to produce the same 

product, and there can be more than one 

grade of a product. As an example, 

styrene butadiene latex and butyl rubber 

each represent a different product. 

Product also means a chemical that is 

not a polymer, is manufactured by a 

process unit. By-products, isolated 

intermediates, impurities, wastes, and 

trace contaminants are not considered 

products. 

* * * * * 

■ 5. Section 63.483 is amended by 

revising paragraph (a) to read as follows: 

§ 63.483 Emission standards. 

(a) At all times, each owner or 

operator must operate and maintain any 

affected source subject to the 

requirements of this subpart, including 

associated air pollution control 

equipment and monitoring equipment, 

in a manner consistent with safety and 

good air pollution control practices for 

minimizing emissions. The general duty 

to minimize emissions does not require 

the owner or operator to make any 

further efforts to reduce emissions if 

levels required by this standard have 

been achieved. 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 source. Except as 

allowed under paragraphs (b) through 

(d) of this section, the owner or operator 

of an existing or new affected source 

shall comply with the provisions in: 

(1) Section 63.484 for storage vessels; 

(2) Section 63.485 for continuous 

front-end process vents; 

(3) Sections 63.486 through 63.492 for 

batch front-end process vents; 

(4) Sections 63.493 through 63.500 for 

back-end process operations; 

(5) Section 63.501 for wastewater; 

(6) Section 63.502 for equipment 

leaks; 

(7) Section 63.504 for additional test 

methods and procedures; 

(8) Section 63.505 for monitoring 

levels and excursions; and 

(9) Section 63.506 for general 

reporting and recordkeeping 

requirements. 

* * * * * 

■ 6. Section 63.484 is amended by 

revising paragraph (b)(4) to read as 

follows: 

§ 63.484 Storage vessel provisions. 

* * * * * 

(b) * * * 

(4) Storage vessels located 

downstream of the stripping operations 

at affected sources subject to the backend residual organic HAP limitation 

located in § 63.494(a)(1) through (3), 

that are complying through the use of 

stripping technology, as specified in 

§ 63.495; 

* * * * * 

■ 7. Section 63.485 is amended by: 

■ a. Revising paragraphs (q) 

introductory text, and (q)(1) 

introductory text; 

■ b. Adding paragraphs (q)(1)(iii) 

through (q)(1)(vi); and 

■ c. Adding paragraph (w) to read as 

follows: 

§ 63.485 Continuous front-end process 

vent provisions. 

* * * * * 

(q) Group 1 halogenated continuous 

front-end process vents must comply 

with the provisions of § 63.113(a)(1)(ii) 

and § 63.113(c), with the exceptions 

noted in paragraphs (q)(1) and (2) of this 

section. 

(1) Group I halogenated continuous 

front-end process vents at existing 

affected sources producing butyl rubber 

or ethylene propylene rubber using a 

solution process are exempt from the 

provisions of § 63.113(a)(1)(ii) and 

§ 63.113(c) if the conditions in 

paragraphs (q)(1)(i) and (ii) of this 

section are met, and shall comply with 

the requirements in paragraphs 

(q)(1)(iii) through (vi) of this section. 

Group I halogenated continuous frontend process vents at new affected 

sources producing butyl rubber or 

ethylene propylene rubber using a 

solution process are not exempt from 

§ 63.113(a)(1)(ii) and § 63.113(c). 

* * * * * 

(iii) The average HCl emissions from 

all front-end process operations at 

affected sources producing butyl rubber 

and ethylene propylene rubber using a 

solution process shall not exceed the 

limits determined in accordance with 

paragraphs (q)(1)(iii)(A) and (B) of this 

section for any consecutive 12-month 

period. The specific limitation for each 

elastomer type shall be determined 

based on the calculation or the 

emissions level provided in paragraphs 

(q)(1)(iii)(A) and (B) of this section 

divided by the base year elastomer 

product that leaves the stripping 

operation (or the reactor(s), if the plant 

has no stripper(s)). The limitation shall 

be calculated and submitted in 

accordance with paragraph (q)(1)(iv) of 

this section. 

(A) For butyl rubber, the HCl emission 

limitation shall be calculated using the 

following equation: 

Where: 

HCl2010 = HCl emissions in 2010, megagrams 

per year (Mg/yr) 

BRHClEL = Butyl rubber HCl emission limit, 

Mg HCl emissions/Mg butyl rubber 

produced 

P2010 = Total elastomer product leaving the 

stripper in 2010, Mg/yr 

1.74 = variability factor, unitless 

(B) For ethylene propylene rubber 

using a solution process, the HCl 

emission limitation, in units of Mg HCl 

emissions per Mg of ethylene propylene 

rubber produced, shall be calculated by 

dividing 27 Mg/yr by the mass of 

ethylene propylene rubber produced in 

2010, in Mg. 

(iv) If the front-end process operation 

is subject to a HCl emission limitation 

in paragraph (q)(1)(iii) of this section, 

the owner and operator must submit the 

information specified in paragraphs 

(q)(1)(iv)(A) and (B) of this section. 

(A) The applicable HCl emission 

limitation determined in accordance 

with paragraphs (q)(1)(iii)(A) and (B) of 

this section shall be submitted no later 

than 180 days from the date of 

publication of the final rule 

amendments in the Federal Register. 

(B) Beginning with the first periodic 

report required to be submitted by 

§ 63.506(e)(6) that is at least 13 months 

after the compliance date, the total mass 

of HCl emitted for each of the rolling 

12-month periods in the reporting 

period divided by the total mass of 

elastomer produced during the 

corresponding 12-month period, 

determined in accordance with 

paragraph (q)(1)(v) of this section. 

(v) Compliance with the HCl emission 

limitations determined in accordance 

with paragraph (q)(1)(iii) of this section 

shall be demonstrated in accordance 

with paragraphs (q)(1)(v)(A) through (E) 

of this section. 

(A) Calculate your HCl emission 

limitation in accordance with 

paragraphs (q)(1)(iii)(A) and (B) of this 

section, as applicable, record it, and 

submit it in accordance with paragraph 

(q)(1)(iv) of this section. 


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(B) Each month, calculate and record 

the HCl emissions from all front-end 

process operations using engineering 

assessment. Engineering assessment 

includes, but is not limited to, the 

following: 

(1) Use of material balances; 

(2) Estimation of flow rate based on 

physical equipment design, such as 

pump or blower capacities; 

(3) Estimation of HCl concentrations 

based on saturation conditions; and 

(4) Estimation of HCl concentrations 

based on grab samples of the liquid or 

vapor. 

(C) Each month, record the mass of 

elastomer product produced. 

(D) Each month, calculate and record 

the sum of the HCl emissions and the 

mass of elastomer produced for the 

previous calendar 12-month period. 

(E) Each month, divide the total mass 

of HCl emitted for the previous calendar 

12-month period by the total mass of 

elastomer produced during this 

12-month period. This value must be 

recorded in accordance with paragraph 

(q)(1)(vi) of this section and reported in 

accordance with paragraph (q)(1)(iv) of 

this section. 

(vi) If the front-end process operation 

is subject to an HCl emission limitation 

in paragraph (q)(1)(iii) of this section, 

the owner or operator shall maintain the 

records specified in paragraphs 

(q)(1)(vi)(A) through (D) of this section. 

(A) The applicable HCl emission 

limitation determined in accordance 

with paragraphs (q)(1)(iii)(A) and (B) of 

this section. 

(B) The HCl emissions from all frontend process operations for each month, 

along with documentation of all 

calculations, and other information used 

in the engineering assessment to 

estimate these emissions. 

(C) The mass of elastomer product 

produced each month. 

(D) The total mass of HCl emitted for 

each 12-month period divided by the 

total mass of elastomer produced during 

the 12-month period, determined in 

accordance with paragraph (q)(1)(v) of 

this section. 

* * * * * 

(w) Shutdown. (1) During periods of 

shutdown, a Group 1 continuous frontend process vent at an existing affected 

source producing butyl rubber or 

ethylene propylene rubber using a 

solution process must be routed to a 

flare until either the organic HAP 

concentration in the vent is less than 50 

ppmv, or the vent pressure is below 

103.421 kPa. 

■ 8. Section 63.489 is amended by 

revising paragraph (b)(4)(ii)(C) to read as 

follows: 

§ 63.489 Batch front-end process vents— 

monitoring equipment. 

* * * * * 

(b) * * * 

(4) * * * 

(ii) * * * 

(C) The owner or operator may 

prepare and implement a gas stream 

flow determination plan that documents 

an appropriate method which will be 

used to determine the gas stream flow. 

The plan shall require determination of 

gas stream flow by a method which will 

at least provide a value for either a 

representative or the highest gas stream 

flow anticipated in the scrubber during 

representative operating conditions. The 

plan shall include a description of the 

methodology to be followed and an 

explanation of how the selected 

methodology will reliably determine the 

gas stream flow, and a description of the 

records that will be maintained to 

document the determination of gas 

stream flow. The owner or operator 

shall maintain the plan as specified in 

§ 63.506(a). 

* * * * * 

■ 9. Section 63.491 is amended by 

revising paragraph (e)(2)(ii) to read as 

follows: 

§ 63.491 Batch front-end process vents— 

recordkeeping requirements. 

* * * * * 

(e) * * * 

(2) * * * 

(ii) Monitoring data recorded during 

periods of monitoring system 

breakdowns, repairs, calibration checks, 

and zero (low-level) and high-level 

adjustments shall not be included in 

computing the batch cycle daily 

averages. In addition, monitoring data 

recorded during periods of nonoperation of the EPPU (or specific 

portion thereof) resulting in cessation of 

organic HAP emissions shall not be 

included in computing the batch cycle 

daily averages. 

* * * * * 

■ 10. Section 63.493 is revised to read 

as follows: 

§ 63.493 Back-end process provisions. 

Owners and operators of new and 

existing affected sources shall comply 

with the requirements in §§ 63.494 

through 63.500. Owners and operators 

of affected sources whose only 

elastomer products are latex products, 

liquid rubber products, or products 

produced in a gas-phased reaction 

process, are not subject to the provisions 

of §§ 63.494 through 63.500. If latex or 

liquid rubber products are produced in 

an affected source that also produces 

another elastomer product, the 

provisions of §§ 63.494 through 63.500 

do not apply to the back-end operations 

dedicated to the production of one or 

more latex products, or to the back-end 

operations during the production of a 

latex product. Table 8 to this subpart 

contains a summary of compliance 

alternative requirements for the 

emission limits in § 63.494(a)(1)–(3) and 

associated requirements. 

■ 11. Section 63.494 is amended by: 

■ a. Revising the section heading; 

■ b. Revising paragraph (a) introductory 

text; 

■ c. Revising paragraph (a)(4); 

■ d. Revising paragraph (a)(5) 

introductory text; 

■ e. Adding paragraph (a)(6); 

■ f. Revising paragraph (b); 

■ g. Revising paragraph (c); and 

■ h. Revising paragraph (d) to read as 

follows: 

§ 63.494 Back-end process provisions— 

residual organic HAP and emission 

limitations. 

(a) The monthly weighted average 

residual organic HAP content of all 

grades of styrene butadiene rubber 

produced by the emulsion process, 

polybutadiene rubber and styrene 

butadiene rubber produced by the 

solution process, and ethylenepropylene rubber produced by the 

solution process that is processed, shall 

be measured after the stripping 

operation (or the reactor(s), if the plant 

has no stripper(s)), as specified in 

§ 63.495(d), and shall not exceed the 

limits provided in paragraphs (a)(1) 

through (3) of this section, as applicable. 

Owners or operators of these affected 

sources shall comply with the 

requirements of paragraphs (a)(1) 

through (3) of this section using either 

stripping technology, or control or 

recovery devices. The organic HAP 

emissions from all back-end process 

operations at affected sources producing 

butyl rubber, epichlorohydrin 

elastomer, neoprene, and nitrile 

butadiene rubber shall not exceed the 

limits determined in accordance with 

paragraph (a)(4) of this section, as 

applicable. 

* * * * * 

(4) The organic HAP emissions from 

back-end processes at affected sources 

producing butyl rubber, 

epichlorohydrin elastomer, neoprene, 

and nitrile butadiene rubber shall not 

exceed the limits determined in 

accordance with paragraphs (a)(4)(i) 

through (iv) of this section for any 

consecutive 12-month period. The 

specific limitation for each elastomer 

type shall be determined based on the 

calculation or the emissions level 

provided in paragraphs (a)(4)(i) through 


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22590 Federal Register / Vol. 76, No. 77 / Thursday, April 21, 2011 / Rules and Regulations 

(iv) of this section divided by the base 

year elastomer product that leaves the 

stripping operation (or the reactor(s), if 

the plant has no stripper(s)). The 

limitation shall be calculated and 

submitted in accordance with 

§ 63.499(f)(1). 

(i) For butyl rubber, the organic HAP 

emission limitation shall be calculated 

using the following equation: 

Where: 

Be2009 = Bypass emissions in 2009, Mg/yr 

BREL = Butyl rubber emission limit, Mg 

organic HAP emissions/Mg butyl rubber 

produced 

Ce2009 = Controlled emissions in 2009, 

Mg/yr 

P2009 = Total elastomer product leaving the 

stripper in 2009, Mg/yr 

UCe2009 = Uncontrolled emissions in 2009, 

Mg/yr 

1.35 = variability factor, unitless 

(ii) For epichlorohydrin elastomer, the 

organic HAP emission limitation, in 

units of Mg organic HAP emissions per 

Mg of epichlorohydrin elastomer 

produced, shall be calculated by 

dividing 51 Mg/yr by the mass of 

epichlorohydrin elastomer produced in 

2009, in Mg. 

(iii) For neoprene, the organic HAP 

emission limitation, in units of Mg 

organic HAP emissions per Mg of 

neoprene produced, shall be calculated 

by dividing 30 Mg/yr by the mass of 

neoprene produced in 2007, in Mg. 

(iv) For nitrile butadiene rubber, the 

organic HAP emission limitation, in 

units of Mg organic HAP emissions per 

Mg of nitrile butadiene rubber 

produced, shall be calculated by 

dividing 2.4 Mg/yr by the mass of nitrile 

butadiene rubber produced in 2009, in 

Mg. 

(5) For EPPU that produce both an 

elastomer product with a residual 

organic HAP limitation listed in 

paragraphs (a)(1) through (3) of this 

section, and a product listed in 

paragraphs (a)(5)(i) through (iv) of this 

section, only the residual HAP content 

of the elastomer product with a residual 

organic HAP limitation shall be used in 

determining the monthly average 

residual organic HAP content. 

* * * * * 

(6) There are no back-end process 

operation residual organic HAP or 

emission limitations for Hypalon TM and 

polysulfide rubber production. There 

are also no back-end process operation 

residual organic HAP limitations for 

latex products, liquid rubber products, 

products produced in a gas-phased 

reaction process, styrene butadiene 

rubber produced by any process other 

than a solution or emulsion process, 

polybutadiene rubber produced by any 

process other than a solution process, or 

ethylene-propylene rubber produced by 

any process other than a solution 

process. 

(b) If an owner or operator complies 

with the residual organic HAP 

limitations in paragraph (a)(1) through 

(3) of this section using stripping 

technology, compliance shall be 

demonstrated in accordance with 

§ 63.495. The owner or operator shall 

also comply with the recordkeeping 

provisions in § 63.498, and the reporting 

provisions in § 63.499. 

(c) If an owner or operator complies 

with the residual organic HAP 

limitations in paragraph (a)(1) through 

(3) of this section using control or 

recovery devices, compliance shall be 

demonstrated using the procedures in 

§ 63.496. The owner or operator shall 

also comply with the monitoring 

provisions in § 63.497, the 

recordkeeping provisions in § 63.498, 

and the reporting provisions in § 63.499. 

(d) If the owner or operator complies 

with the residual organic HAP 

limitations in paragraph (a)(1) through 

(3) of this section using a flare, the 

owner or operator of an affected source 

shall comply with the requirements in 

§ 63.504(c). 

■ 12. Section 63.495 is amended by: 

■ a. Revising the section heading; 

■ b. Revising paragraph (a); 

■ c. Revising paragraph (b)(5); and 

■ d. Adding paragraph (g) to read as 

follows: 

§ 63.495 Back-end process provisions— 

procedures to determine compliance with 

residual organic HAP limitations using 

stripping technology and organic HAP 

emissions limitations. 

(a) If an owner or operator complies 

with the residual organic HAP 

limitations in § 63.494(a)(1) through (3) 

using stripping technology, compliance 

shall be demonstrated using the 

periodic sampling procedures in 

paragraph (b) of this section, or using 

the stripper parameter monitoring 

procedures in paragraph (c) of this 

section. The owner or operator shall 

determine the monthly weighted 

average residual organic HAP content 

for each month in which any portion of 

the back-end of an elastomer production 

process is in operation. A single 

monthly weighted average shall be 

determined for all back-end process 

operations at the affected source. 

(b) * * * 

(5) The monthly weighted average 

shall be determined using the equation 

in paragraph (f) of this section. All 

representative samples taken and 

analyzed during the month shall be 

used in the determination of the 

monthly weighted average. 

* * * * * 

(g) Compliance with the organic HAP 

emission limitations determined in 

accordance with § 63.494(a)(4) shall be 

demonstrated in accordance with 

paragraphs (g)(1) through (5) of this 

section. 

(1) Calculate your organic HAP 

emission limitation in accordance with 

§ 63.494(a)(4)(i) through (iv), as 

applicable, record it, and submit it in 

accordance with § 63.499(f)(1). 

(2) Each month, calculate and record 

the organic HAP emissions from all 

back-end process operations using 

engineering assessment. Engineering 

assessment includes, but is not limited 

to, the following: 

(i) Previous test results, provided the 

test was representative of current 

operating practices. 

(ii) Bench-scale or pilot-scale test data 

obtained under conditions 

representative of current process 

operating conditions. 

(iii) 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: 

(A) Use of material balances; 

(B) Estimation of flow rate based on 

physical equipment design, such as 

pump or blower capacities; 

(C) Estimation of organic HAP 

concentrations based on saturation 

conditions; and 

(D) Estimation of organic HAP 

concentrations based on grab samples of 

the liquid or vapor. 

(3) Each month, record the mass of 

elastomer product produced. 

(4) Each month, calculate and record 

the sums of the organic HAP emissions 


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Federal Register / Vol. 76, No. 77 / Thursday, April 21, 2011 / Rules and Regulations 22591 

and the mass of elastomer produced for 

the previous calendar 12-month period. 

(5) Each month, divide the total mass 

of organic HAP emitted for the previous 

calendar 12-month period by the total 

mass of elastomer produced during this 

12-month period. This value must be 

recorded in accordance with § 63.498(e) 

and reported in accordance with 

§ 63.499(f)(2). 

■ 13. Section 63.496 is amended by: 

■ a. Revising the section heading; 

■ b. Revising paragraph (a); 

■ c. Revising paragraph (c)(2); and 

■ d. Revising paragraph (d) to read as 

follows: 

§ 63.496 Back-end process provisions— 

procedures to determine compliance with 

residual organic HAP limitations using 

control or recovery devices. 

(a) If an owner or operator complies 

with the residual organic HAP 

limitations in § 63.494(a)(1) through (3) 

using control or recovery devices, 

compliance shall be demonstrated using 

the procedures in paragraphs (b) and (c) 

of this section. Previous test results 

conducted in accordance with 

paragraphs (b)(1) through (6) of this 

section may be used to determine 

compliance in accordance with 

paragraph (c) of this section. 

* * * * * 

(c) * * * 

(2) A facility is in compliance if the 

average of the organic HAP contents 

calculated for all three test runs is below 

the residual organic HAP limitations in 

§ 63.494(a)(1) through (3). 

(d) An owner or operator complying 

with the residual organic HAP 

limitations in § 63.494(a)(1) through (3) 

using a control or recovery device, shall 

redetermine the compliance status 

through the requirements described in 

paragraph (b) of this section whenever 

process changes are made. The owner or 

operator shall report the results of the 

redetermination in accordance with 

§ 63.499(d). For the purposes of this 

section, a process change is any action 

that would reasonably be expected to 

impair the performance of the control or 

recovery device. For the purposes of this 

section, the production of an elastomer 

with a residual organic HAP content 

greater than the residual organic HAP 

content of the elastomer used in the 

compliance demonstration constitutes a 

process change, unless the overall effect 

of the change is to reduce organic HAP 

emissions from the source as a whole. 

Other examples of process changes may 

include changes in production capacity 

or production rate, or removal or 

addition of equipment. For the purposes 

of this paragraph, process changes do 

not include: Process upsets; 

unintentional, temporary process 

changes; or changes that reduce the 

residual organic HAP content of the 

elastomer. 

■ 14. Section 63.497 is amended by: 

■ a. Revising the section heading; 

■ b. Revising paragraph (a) introductory 

text; and 

■ c. Revising paragraph (d) introductory 

text to read as follows: 

§ 63.497 Back-end process provisions— 

monitoring provisions for control and 

recovery devices used to comply with 

residual organic HAP limitations. 

(a) An owner or operator complying 

with the residual organic HAP 

limitations in § 63.494(a)(1) through (3) 

using control or recovery devices, or a 

combination of stripping and control or 

recovery devices, shall install the 

monitoring equipment specified in 

paragraphs (a)(1) through (6) of this 

section, as appropriate. 

* * * * * 

(d) The owner or operator of an 

affected source with a controlled backend process vent using a vent system 

that contains bypass lines that could 

divert a vent stream away from the 

control or recovery device used to 

comply with § 63.494(a)(1) through (3), 

shall comply with paragraph (d)(1) or 

(2) of this section. Equipment such as 

low leg drains, high point bleeds, 

analyzer vents, open-ended valves or 

lines, and pressure relief valves needed 

for safety purposes are not subject to 

this paragraph. 

* * * * * 

■ 15. Section 63.498 is amended by: 

■ a. Revising paragraph (a) introductory 

text; 

■ b. Revising paragraph (a)(3); 

■ c. Adding paragraph (a)(4); 

■ d. Revising paragraph (b) introductory 

text; 

■ e. Revising paragraph (b)(3); 

■ f. Revising paragraph (c) introductory 

text; 

■ g. Revising paragraph (d) introductory 

text; 

■ h. Revising paragraph (d)(5)(ii)(B); 

■ i. Revising paragraph (d)(5)(ii)(E); and 

■ j. Adding paragraph (e) to read as 

follows: 

§ 63.498 Back-end process provisions— 

recordkeeping. 

(a) Each owner or operator shall 

maintain the records specified in 

paragraphs (a)(1) through (4), and 

paragraphs (b) through (e) of this 

section, as appropriate. 

* * * * * 

(3) If the back-end process operation 

is subject to a residual organic HAP 

limitation in § 63.494(a)(1) through (3), 

whether compliance will be achieved by 

stripping technology, or by control or 

recovery devices. 

(4) If the back-end process operation 

is subject to an emission limitation in 

§ 63.494(a)(4), the organic HAP emission 

limitation calculated in accordance with 

§ 63.494(a)(4)(i) through (iv), as 

applicable. 

(b) Each owner or operator of a backend process operation using stripping 

technology to comply with a residual 

organic HAP limitation in § 63.494(a)(1) 

through (3), and demonstrating 

compliance using the periodic sampling 

procedures in § 63.495(b), shall 

maintain the records specified in 

paragraph (b)(1), and in paragraph (b)(2) 

or paragraph (b)(3) of this section, as 

appropriate. 

* * * * * 

(3) If the organic HAP contents for all 

samples analyzed during a month are 

below the appropriate level in 

§ 63.494(a), the owner or operator may 

record that all samples were in 

accordance with the residual organic 

HAP limitations in § 63.494(a)(1) 

through (3), rather than calculating and 

recording a monthly weighted average. 

(c) Each owner or operator of a backend process operation using stripping 

technology to comply with a residual 

organic HAP limitation in § 63.494(a)(1) 

through (3), and demonstrating 

compliance using the stripper parameter 

monitoring procedures in § 63.495(c), 

shall maintain the records specified in 

paragraphs (c)(1) through (3) of this 

section. 

* * * * * 

(d) Each owner or operator of a backend process operation using control or 

recovery devices to comply with a 

residual organic HAP limitation in 

§ 63.494(a)(1) through (3), shall 

maintain the records specified in 

paragraphs (d)(1) through (5) of this 

section. The recordkeeping 

requirements contained in paragraphs 

(d)(1) through (4) pertain to the results 

of the testing required by § 63.496(b), for 

each of the three required test runs. 

* * * * * 

(5) * * * 

(ii) * * * 

(B) Monitoring data recorded during 

periods of monitoring system 

breakdowns, repairs, calibration checks, 

and zero (low-level) and high-level 

adjustments, shall not be included in 

computing the hourly or daily averages. 

In addition, monitoring data recorded 

during periods of non-operation of the 

EPPU (or specific portion thereof) 

resulting in cessation of organic HAP 

emissions, shall not be included in 


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computing the hourly or daily averages. 

Records shall be kept of the times and 

durations of all such periods and any 

other periods of process or control 

device operation when monitors are not 

operating. 

* * * * * 

(E) For flares, records of the times and 

duration of all periods during which the 

pilot flame is absent, shall be kept rather 

than daily averages. The records 

specified in this paragraph are not 

required during periods when emissions 

are not routed to the flare. 

* * * * * 

(e) If the back-end process operation 

is subject to an organic HAP emission 

limitation in § 63.494(a)(4), the records 

specified in paragraphs (e)(1) through 

(4) of this section. 

(1) The applicable organic HAP 

emission limitation determined in 

accordance with § 63.494(a)(4)(i) 

through (iv). 

(2) The organic HAP emissions from 

all back-end process operations for each 

month, along with documentation of all 

calculations and other information used 

in the engineering assessment to 

estimate these emissions. 

(3) The mass of elastomer product 

produced each month. 

(4) The total mass of organic HAP 

emitted for each 12-month period 

divided by the total mass of elastomer 

produced during the 12-month period, 

determined in accordance with 

§ 63.495(g)(5). 

■ 16. Section 63.499 is amended by: 

■ a. Revising paragraph (a)(3); 

■ b. Revising paragraph (b) introductory 

text; 

■ c. Revising paragraph (c) introductory 

text; 

■ d. Revising paragraph (d) introductory 

text; and 

■ e. Adding paragraph (f) to read as 

follows: 

§ 63.499 Back-end process provisions— 

reporting. 

(a) * * * 

(3) If the back-end process operation 

is subject to a residual organic HAP 

limitation in § 63.494(a)(1) through (3), 

whether compliance will be achieved by 

stripping technology, or by control or 

recovery devices. 

(b) Each owner or operator of a backend process operation using stripping to 

comply with a residual organic HAP 

limitation in § 63.494(a)(1) through (3), 

and demonstrating compliance by 

stripper parameter monitoring, shall 

submit reports as specified in 

paragraphs (b)(1) and (2) of this section. 

* * * * * 

(c) Each owner or operator of an 

affected source with a back-end process 

operation control or recovery device 

that shall comply with a residual 

organic HAP limitation in § 63.494(a)(1) 

through (3), shall submit the 

information specified in paragraphs 

(c)(1) through (3) of this section as part 

of the Notification of Compliance Status 

specified in § 63.506(e)(5). 

* * * * * 

(d) Whenever a process change, as 

defined in § 63.496(d), is made that 

causes the redetermination of the 

compliance status for the back-end 

process operations subject to a residual 

organic HAP limitation in § 63.494(a)(1) 

through (3), the owner or operator shall 

submit a report within 180 days after 

the process change, as specified in 

§ 63.506(e)(7)(iii). The report shall 

include: 

* * * * * 

(f) If the back-end process operation is 

subject to an organic HAP emission 

limitation in § 63.494(a)(4), the owner 

and operator must submit the 

information specified in paragraphs 

(f)(1) and (2) of this section. 

(1) The applicable organic HAP 

emission limitation determined in 

accordance with § 63.494(a)(4)(i) 

through (iv), shall be submitted no later 

than 180 days from the date of 

publication of the final rule 

amendments in the Federal Register. 

(2) Beginning with the first periodic 

report required to be submitted by 

§ 63.506(e)(6) that is at least 13 months 

after the compliance date, the total mass 

of organic HAP emitted for each of the 

rolling 12-month periods in the 

reporting period divided by the total 

mass of elastomer produced during the 

corresponding 12-month period, 

determined in accordance with 

§ 63.495(g)(5). 

■ 17. Section 63.501 is amended by 

revising paragraph (c)(2) to read as 

follows: 

§ 63.501 Wastewater provisions. 

* * * * * 

(c) * * * 

(2) Back-end streams at affected 

sources that are subject to a residual 

organic HAP limitation in § 63.494(a)(1) 

through (3) and that are complying with 

these limitations through the use of 

stripping technology. 

■ 18. Section 63.502 is amended by 

revising paragraphs (a) and (b)(4) to read 

as follows: 

§ 63.502 Equipment leak and heat 

exchange system provisions. 

(a) Equipment leak provisions. The 

owner or operator of each affected 

source, shall comply with the 

requirements of subpart H of this part, 

with the exceptions noted in paragraphs 

(b) through (m) of this section. Surge 

control vessels required to be controlled 

by subpart H may, alternatively, comply 

with the Group 1 storage vessel 

provisions specified in § 63.484. 

(b) * * * 

(4) Surge control vessels and bottoms 

receivers located downstream of the 

stripping operations at affected sources 

subject to the back-end residual organic 

HAP limitation located in § 63.494(a)(1) 

through (3) that are complying through 

the use of stripping technology, as 

specified in § 63.495; 

* * * * * 

§ 63.503—[Amended] 

■ 19. Section 63.503 is amended by 

removing and reserving paragraph (f)(1). 

■ 20. Section 63.504 is amended by 

revising paragraph (a)(1) introductory 

text to read as follows: 

§ 63.504 Additional requirements for 

performance testing. 

(a) * * * 

(1) Performance tests shall be 

conducted at maximum representative 

operating conditions achievable during 

one of the time periods described in 

paragraph (a)(1)(i) of this section, 

without causing any of the situations 

described in paragraph (a)(1)(ii) of this 

section to occur. Upon request, the 

owner or operator shall make available 

to the Administrator such records as 

may be necessary to determine the 

conditions of performance tests. 

* * * * * 

■ 21. Section 63.505 is amended by: 

■ a. Revising paragraph (e)(4); 

■ b. Revising paragraph (g)(1) 

introductory text; 

■ c. Revising paragraph (g)(1)(v)(A); 

■ d. Revising paragraph (g)(1)(v)(B); 

■ e. Removing paragraphs (g)(1)(v)(C) 

through (g)(1)(v)(E); 

■ f. Revising paragraph (g)(2)(ii)(B) 

introductory text; and 

■ g. Adding paragraph (j) to read as 

follows: 

§ 63.505 Parameter monitoring levels and 

excursions. 

* * * * * 

(e) * * * 

(4) An owner or operator complying 

with the residual organic HAP 

limitations in paragraphs (a)(1) through 

(3) of § 63.494 using stripping, and 

demonstrating compliance by stripper 

parameter monitoring, shall redetermine 

the residual organic HAP content for all 

affected grades whenever process 

changes are made. For the purposes of 

this section, a process change is any 

action that would reasonably be 


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expected to impair the performance of 

the stripping operation. For the 

purposes of this section, examples of 

process changes may include changes in 

production capacity or production rate, 

or removal or addition of equipment. 

For purposes of this paragraph, process 

changes do not include: Process upsets; 

unintentional, temporary process 

changes; or changes that reduce the 

residual organic HAP content of the 

elastomer. 

* * * * * 

(g) * * * 

(1) With respect to storage vessels 

(where the applicable monitoring plan 

specifies continuous monitoring), 

continuous front-end process vents, 

aggregate batch vent streams, back-end 

process operations complying with 

§ 63.494(a)(1) through (3) through the 

use of control or recovery devices, and 

process wastewater streams, an 

excursion means any of the three cases 

listed in paragraphs (g)(1)(i) through 

(g)(1)(iii) of this section. * * * 

(v) * * * 

(A) Monitoring system breakdowns, 

repairs, calibration checks, and zero 

(low-level) and high-level adjustments; 

or 

(B) Periods of non-operation of the 

affected source (or portion thereof), 

resulting in cessation of the emissions to 

which the monitoring applies. 

(2) * * * 

(ii) * * * 

(B) Subtract the time during the 

periods of monitoring system 

breakdowns, repairs, calibration checks, 

and zero (low-level) and high-level 

adjustments from the total amount of 

time determined in paragraph 

(g)(2)(ii)(A) of this section, to obtain the 

operating time used to determine if 

monitoring data are insufficient. 

* * * * * 

(j) Excursion definition for back-end 

operations subject to § 63.494(a)(4). An 

excursion means when the total mass of 

organic HAP emitted for any 

consecutive 12-month period divided by 

the total mass of elastomer produced 

during the 12-month period, determined 

in accordance with § 63.495(g), is 

greater than the applicable emission 

limitation, determined in accordance 

with § 63.494(a)(4)(i) through (iv) and 

submitted in accordance with 

§ 63.499(f)(1). 

■ 22. Section 63.506 is amended by: 

■ a. Revising paragraph (b)(1) 

introductory text; 

■ b. Revising paragraph (d)(7); 

■ c. Revising paragraph (e)(3) 

introductory text; 

■ d. Removing and reserving paragraph 

(e)(3)(viii); 

■ e. Revising paragraph (e)(3)(ix)(B); 

■ f. Revising paragraph (e)(6)(iii)(E); 

■ g. Revising paragraph (h)(1)(i); 

■ h. Revising paragraph (h)(1)(ii)(C); 

■ i. Revising paragraph (h)(1)(iii); 

■ j. Revising paragraph (h)(2)(iii); 

■ k. Removing and reserving paragraph 

(h)(2)(iv)(A); and 

■ l. Adding paragraph (i) to read as 

follows: 

§ 63.506 General recordkeeping and 

reporting provisions. 

* * * * * 

(b) * * * 

(1) Malfunction records. Each owner 

or operator of an affected source subject 

to this subpart shall maintain records of 

the occurrence and duration of each 

malfunction of operation (i.e., process 

equipment), air pollution control 

equipment, or monitoring equipment. 

Each owner or operator shall maintain 

records of actions taken during periods 

of malfunction to minimize emissions in 

accordance with § 63.483(a)(1), 

including corrective actions to restore 

malfunctioning process and air 

pollution control and monitoring 

equipment to its normal or usual 

manner of operation. 

* * * * * 

(d) * * * 

(7) Monitoring data recorded during 

periods identified in paragraphs (d)(7)(i) 

and (ii) of this section shall not be 

included in any average computed 

under this subpart. Records shall be 

kept of the times and durations of all 

such periods and any other periods 

during process or control device or 

recovery device operation when 

monitors are not operating. 

(i) Monitoring system breakdowns, 

repairs, calibration checks, and zero 

(low-level) and high-level adjustments; 

or 

(ii) Periods of non-operation of the 

affected source (or portion thereof), 

resulting in cessation of the emissions to 

which the monitoring applies. 

* * * * * 

(e) * * * 

(3) Precompliance Report. Owners or 

operators of affected sources requesting 

an extension for compliance; requesting 

approval to use alternative monitoring 

parameters, alternative continuous 

monitoring and recordkeeping, or 

alternative controls; requesting approval 

to use engineering assessment to 

estimate emissions from a batch 

emissions episode, as described in 

§ 63.488(b)(6)(i); wishing to establish 

parameter monitoring levels according 

to the procedures contained in 

§ 63.505(c) or (d); shall submit a 

Precompliance Report according to the 

schedule described in paragraph (e)(3)(i) 

of this section. The Precompliance 

Report shall contain the information 

specified in paragraphs (e)(3)(ii) through 

(vii) of this section, as appropriate. 

* * * * * 

(viii) [Reserved] 

(ix) * * * 

(B) Supplements to the Precompliance 

Report may be submitted to request 

approval to use alternative monitoring 

parameters, as specified in paragraph 

(e)(3)(iii) of this section; to use 

alternative continuous monitoring and 

recordkeeping, as specified in paragraph 

(e)(3)(iv) of this section; to use 

alternative controls, as specified in 

paragraph (e)(3)(v) of this section; to use 

engineering assessment to estimate 

emissions from a batch emissions 

episode, as specified in paragraph 

(e)(3)(vi) of this section; or to establish 

parameter monitoring levels according 

to the procedures contained in 

§ 63.505(c) or (d), as specified in 

paragraph (e)(3)(vii) of this section. 

* * * * * 

(6) * * * 

(iii) * * * 

(E) The number, duration, and a brief 

description for each type of malfunction 

which occurred during the reporting 

period and which caused or may have 

caused any applicable emission 

limitation to be exceeded. The report 

must also include a description of 

actions taken by an owner or operator 

during a malfunction of an affected 

source to minimize emissions in 

accordance with § 63.483(a)(1), 

including actions taken to correct a 

malfunction. 

* * * * * 

(h) * * * 

(1) * * * 

(i) The monitoring system is capable 

of detecting unrealistic or impossible 

data during periods of normal operation 

(e.g., a temperature reading of ¥200 °C 

on a boiler), and will alert the operator 

by alarm or other means. The owner or 

operator shall record the occurrence. All 

instances of the alarm or other alert in 

an operating day constitute a single 

occurrence. 

(ii) * * * 

(C) The running average reflects a 

period of normal operation. 

(iii) The monitoring system is capable 

of detecting unchanging data during 

periods of normal operation, except in 

circumstances where the presence of 

unchanging data is the expected 

operating condition based on past 

experience (e.g., pH in some scrubbers), 

and will alert the operator by alarm or 

other means. The owner or operator 

shall record the occurrence. All 

instances of the alarm or other alert in 


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22594 Federal Register / Vol. 76, No. 77 / Thursday, April 21, 2011 / Rules and Regulations 

an operating day constitute a single 

occurrence. 

* * * * * 

(2) * * * 

(iii) The owner or operator shall retain 

the records specified in paragraphs 

(h)(1)(i) through (iii) of this section, for 

the duration specified in paragraph (h) 

of this section. For any calendar week, 

if compliance with paragraphs (h)(1)(i) 

through (iii) of this section does not 

result in retention of a record of at least 

one occurrence or measured parameter 

value, the owner or operator shall 

record and retain at least one parameter 

value during a period of normal 

operation. 

(iv) * * * 

(A) [Reserved] 

* * * * * 

(i)(1) As of January 1, 2012, and 

within 60 days after the date of 

completing each performance test, as 

defined in § 63.2 and as required in this 

subpart, you must submit performance 

test data, except opacity data, 

electronically to EPA’s Central Data 

Exchange by using the Electronic 

Reporting Tool (ERT) (see http:// 

www.epa.gov/ttn/chief/ert/ert 

tool.html/) or other compatible 

electronic spreadsheet. Only data 

collected using test methods compatible 

with ERT are subject to this requirement 

to be submitted electronically into 

EPA’s WebFIRE database. 

(2) All reports required by this 

subpart not subject to the requirements 

in paragraphs (i)(1) of this section must 

be sent to the Administrator at the 

appropriate address listed in § 63.13. If 

acceptable to both the Administrator 

and the owner or operator of a source, 

these reports may be submitted on 

electronic media. The Administrator 

retains the right to require submittal of 

reports subject to paragraph (i)(1) of this 

section in paper format. 

■ 23. Table 1 to Subpart U of part 63 is 

amended by: 

■ a. Removing entry 63.6(e); 

■ b. Revising entries 63.6(e)(1)(i) and 

63.6(e)(1)(ii); 

■ c. Revising entry 63.6(e)(2); 

■ d. Adding entry 63.6(e)(3); 

■ e. Removing entries 63.6(e)(3)(i) 

through 63.6(e)(3)(ix); 

■ f. Revising entry 63.6(f)(1); and 

■ g. Revising entries 63.7(e)(1) and 

63.10(d)(5)(i) to read as follows: 

TABLE 1 TO SUBPART U OF PART 63—APPLICABILITY OF GENERAL PROVISIONS TO SUBPART U AFFECTED SOURCES

Reference Applies to subpart U Explanation 

*******

§ 63.6(e)(1)(i) ........................................................ No ............................. See § 63.483(a)(1) for general duty requirement. Any cross reference 

to § 63.6(e)(1)(i) in any other general provision incorporated by reference shall be treated as a cross reference to § 63.483(a)(1). 

§ 63.6(e)(1)(ii) ........................................................ No.

*******

§ 63.6(e)(2) ............................................................ No ............................. [Reserved.]. 

§ 63.6(e)(3) ............................................................ No.

§ 63.6(f)(1) ............................................................. No.

*******

§ 63.7(e)(1) ............................................................ No ............................. See § 63.504(a)(1). Any cross-reference to § 63.7(e)(1) in any other 

general provision incorporated by reference shall be treated as a 

cross-reference to § 63.504(a)(1). 

* * * * * * * 

63.10(d)(5)(i) ......................................................... No.

* * * * * * * 

■ 24. Table 5 to Subpart U of part 63 is 

revised to read as follows: 

TABLE 5 TO SUBPART U OF PART 63—KNOWN ORGANIC HAP EMITTED FROM THE PRODUCTION OF ELASTOMER

PRODUCTS

[Known organic HAP emitted from the production of elastomer products] 

Organic HAP/Chemical name (CAS 

No.) 

Elastomer product/subcategory 

BR EPI EPR HYP NEO NBL NBR PBR/ 

SBRS PSR SBL SBRE 

Acrylonitrile (107131) ....................... ............ ............ ............ ............ ............ X X ............ ............ ............ ............

1,3 Butadiene (106990) ................... ............ ............ ............ ............ ............ X X X ............ X X 

Carbon Disulfide ............................... ............ ............ ............ ............ ............ X X X ............ X X 

Carbon Tetrachloride (56235) .......... ............ ............ ............ X ............ ............ ............ ............ ............ ............ ............

Chlorobenzene (108907) ................. ............ ............ ............ X ............ ............ ............ ............ ............ ............ ............

Chloroform (67663) .......................... ............ ............ ............ X ............ ............ ............ ............ ............ ............ ............

Chloroprene (126998) ...................... ............ ............ ............ ............ X ............ ............ ............ ............ ............ ............

Epichlorohydrin (106898) ................. ............ X ............ ............ ............ ............ ............ ............ ............ ............ ............

Ethylbenzene (100414) .................... X ............ ............ ............ ............ ............ ............ ............ ............ X ............

Ethylene Dichloride (107062) ........... ............ ............ ............ ............ ............ ............ ............ ............ X ............ ............

Ethylene Oxide (75218) ................... ............ X ............ ............ ............ ............ ............ ............ X ............ ............

Formaldehyde (50000) ..................... ............ X ............ ............ ............ ............ ............ ............ X ............ ............


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Federal Register / Vol. 76, No. 77 / Thursday, April 21, 2011 / Rules and Regulations 22595 

TABLE 5 TO SUBPART U OF PART 63—KNOWN ORGANIC HAP EMITTED FROM THE PRODUCTION OF ELASTOMER

PRODUCTS—Continued 

[Known organic HAP emitted from the production of elastomer products] 

Organic HAP/Chemical name (CAS 

No.) 

Elastomer product/subcategory 

BR EPI EPR HYP NEO NBL NBR PBR/ 

SBRS PSR SBL SBRE 

Hexane (110543) ............................. X ............ X ............ ............ ............ ............ X ............ ............ ............

Methanol (67561) ............................. X ............ ............ ............ ............ ............ ............ X ............ ............ ............

Methyl Chloride (74873) ................... X ............ ............ X ............ ............ ............ ............ ............ ............ ............

Propylene Oxide (75569) ................. ............ X ............ ............ ............ ............ ............ ............ ............ ............ ............

Styrene (100425) ............................. ............ ............ ............ ............ ............ ............ ............ X ............ X X 

Toluene (108883) ............................. ............ X X ............ X ............ ............ X ............ ............ ............

Xylenes (1330207) ........................... X ............ ............ ............ ............ ............ ............ ............ ............ ............ ............

Xylene (m-) (108383) ....................... X ............ ............ ............ ............ ............ ............ ............ ............ ............ ............

Xylene (o-) (95476) .......................... X ............ ............ ............ ............ ............ ............ ............ ............ ............ ............

Xylene (p-) (106423) ........................ X ............ ............ ............ ............ ............ ............ ............ ............ ............ ............

CAS No. = Chemical Abstract Service Number. 

BR = Butyl Rubber. 

EPI = Epichlorohydrin Rubber. 

EPR = Ethylene Propylene Rubber. 

HYP = HypalonTM. 

NEO = Neoprene. 

NBL = Nitrile Butadiene Latex. 

NBR = Nitrile Butadiene Rubber. 

PBR/SBRS = Polybutadiene and Styrene Butadiene Rubber by Solution. 

PSR = Polysulfide Rubber. 

SBL = Styrene Butadiene Latex. 

SBRE = Styrene Butadiene Rubber by Emulsion. 

Subpart Y—[Amended] 

■ 25–26. Section 63.560 is amended by: 

■ a. Adding paragraph (a)(4); 

■ b. Revising paragraph (d)(6); and 

■ c. Adding paragraph (e)(1)(iv) to read 

as follows: 

■ d. Table 1 to subpart Y of part 63 is 

amended by: 

■ 1. Revising entry 63.6(f)(1); 

■ 2. Removing entry 63.7(e); 

■ 3. Adding entries 63.7(e)(1) and 

63.7(e)(2)–(4); 

■ 4. Removing entries 63.8(c)(1)(i), 

63.8(c)(1)(ii), and 63.(c)(1)(iii); 

■ 5. Adding entry 63.8(c)(1); 

■ 6. Removing entry 63.10(b)(2)(i); 

■ 7. Adding entry 63.10(b)(2)(i)–(ii); 

■ 8. Removing entry 63.10(b)(2)(ii)–(iii); 

■ 9. Adding entry 63.10(b)(2)(iii); 

■ 10. Removing entry 63.10(c)(10)–(13); 

and 

■ 11. Adding entries 63.10(c)(10)–(11) 

and 63.10(c)(12)–(13). 

The additions and revisions read as 

follows: 

§ 63.560 Applicability and designation of 

affected source. 

(a) * * * 

(4) Existing sources with emissions 

less than 10 and 25 tons must meet the 

submerged fill standards of 46 CFR 

153.282. This submerged fill 

requirement does not apply to 

petroleum refineries. 

* * * * * 

(d) * * * 

(6) The provisions of this subpart do 

not apply to marine tank vessel loading 

operations at existing offshore loading 

terminals, as that term is defined in 

§ 63.561, however existing offshore 

loading terminals must meet the 

submerged fill standards of 46 CFR 

153.282. 

* * * * * 

(e) * * * 

(1) * * * 

(iv) Existing sources with emissions 

less than 10 and 25 tons, and existing 

offshore loading terminals, shall comply 

with the submerged fill requirements in 

paragraph (a)(4) and (d)(6) of this 

section by April 23, 2012. 

* * * * * 

TABLE 1 OF § 63.560—GENERAL PROVISIONS APPLICABILITY TO SUBPART Y 

Reference 

Applies to 

affected sources in 

subpart Y 

Comment 

*******

63.6(f)(1) ............................................................... No. 

*******

63.7(e)(1) .............................................................. No ............................. See 63.563(b)(1). Any cross reference to 63.7(e)(1) in any other 

general provision incorporated by reference shall be treated as a 

cross-reference to 63.563(b)(1). 

63.7(e)(2)–(4) ........................................................ Yes. 

63.8(c)(1) .............................................................. No. 

* * * * * * * 

* * * * * * * 

63.10(b)(2)(i)–(ii) ................................................... No ............................. See 63.567(m). 


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TABLE 1 OF § 63.560—GENERAL PROVISIONS APPLICABILITY TO SUBPART Y—Continued 

Reference 

Applies to 

affected sources in 

subpart Y 

Comment 

*******

63.10(b)(2)(iii) ....................................................... Yes. 

*******

63.10(c)(10)–(11) .................................................. No ............................. See 63.567(m) for reporting malfunctions. Any cross-reference to 

63.10(c)(10) or 63.10(c)(11) in any other general provision incorporated by reference shall be treated as a cross-reference to 

63.567(m). 

63.10(c)(12)–(13) .................................................. Yes. 

* * * * * * * 

■ 27. Section 63.561 is amended by 

adding in alphabetical order a definition 

for ‘‘affirmative defense’’ to read as 

follows: 

§ 63.561 Definitions. 

* * * * * 

Affirmative defense means, in the 

context of an enforcement proceeding, a 

response or a 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. 

* * * * * 

■ 28. Section 63.562 is amended by: 

■ a. Revising paragraph (e) introductory 

text; and 

■ b. Adding paragraph (e)(7) to read as 

follows: 

§ 63.562 Standards. 

* * * * * 

(e) Operation and maintenance 

requirements for air pollution control 

equipment and monitoring equipment 

for affected sources. At all times, owners 

or operators of affected sources shall 

operate and maintain a source, 

including associated air pollution 

control equipment, in a manner 

consistent with safety and good air 

pollution control practices for 

minimizing emissions. Determination of 

whether acceptable 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 source. 

* * * * * 

(7) In response to an action to enforce 

the standards set forth in this subpart, 

you may assert an affirmative defense to 

a claim for civil penalties for 

exceedances of such standards that are 

caused by a malfunction, as defined in 

§ 63.2. Appropriate penalties may be 

assessed, however, if the respondent 

fails to meet its burden of proving all 

the requirements in the affirmative 

defense. The affirmative defense shall 

not be available for claims for injunctive 

relief. 

(i) To establish the affirmative defense 

in any action to enforce such a limit, the 

owners or operators of a facility must 

timely meet the notification 

requirements of paragraph (e)(7)(ii) of 

this section, and must prove by a 

preponderance of evidence that: 

(A) The excess emissions were caused 

by a sudden, infrequent, and 

unavoidable failure of air pollution 

control and monitoring equipment, or a 

process to operate in a normal and usual 

manner; and could not have been 

prevented through careful planning, 

proper design or better operation and 

maintenance practices; and did not stem 

from any activity or event that could 

have been foreseen and avoided, or 

planned for; and were not part of a 

recurring pattern indicative of 

inadequate design, operation, or 

maintenance; 

(B) Repairs were made as 

expeditiously as possible when the 

applicable emission limitations were 

being exceeded. Off-shift and overtime 

labor were used, to the extent 

practicable to make these repairs; 

(C) The frequency, amount and 

duration of the excess emissions 

(including any bypass) were minimized 

to the maximum extent practicable 

during periods of such emissions; 

(D) If the excess emissions 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; 

(E) All possible steps were taken to 

minimize the impact of the excess 

emissions on ambient air quality, the 

environment, and human health; 

(F) All emissions monitoring and 

control systems were kept in operation 

if at all possible, consistent with safety 

and good air pollution control practices; 

(G) All of the actions in response to 

the excess emissions were documented 

by properly signed, contemporaneous 

operating logs; 

(H) At all times, the affected facility 

was operated in a manner consistent 

with good practices for minimizing 

emissions; and 

(I) The owner or operator has 

prepared a written root cause analysis, 

the purpose of which is to determine, 

correct, and eliminate the primary 

causes of the malfunction and the 

excess emissions resulting from the 

malfunction event at issue. The analysis 

shall also specify, using the best 

monitoring methods and engineering 

judgment, the amount of excess 

emissions that were the result of the 

malfunction. 

(ii) Notification. The owner or 

operator of the facility experiencing an 

exceedance of its emission limit(s) 

during a malfunction shall notify the 

Administrator by telephone or facsimile 

(FAX) transmission as soon as possible, 

but no later than 2 business days after 

the initial occurrence of the 

malfunction, if it wishes to avail itself 

of an affirmative defense to civil 

penalties for that malfunction. The 

owner or operator seeking to assert an 

affirmative defense shall also submit a 

written report to the Administrator 

within 45 days of the initial occurrence 

of the exceedance of the standard in this 

subpart to demonstrate, with all 

necessary supporting documentation, 

that it has met the requirements set forth 

in paragraph (e)(7)(i) of this section. The 

owner or operator may seek an 

extension of this deadline for up to 30 

additional days by submitting a written 

request to the Administrator before the 


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Federal Register / Vol. 76, No. 77 / Thursday, April 21, 2011 / Rules and Regulations 22597 

expiration of the 45 day period. Until a 

request for an extension has been 

approved by the Administrator, the 

owner or operator is subject to the 

requirement to submit such report 

within 45 days of the initial occurrence 

of the exceedance. 

■ 29. Section 63.563 is amended by 

revising paragraph (b)(1) to read as 

follows: 

§ 63.563 Compliance and performance 

testing. 

* * * * * 

(b) * * * 

(1) Initial performance test. An initial 

performance test shall be conducted 

using the procedures listed in § 63.7 of 

subpart A of this part according to the 

applicability in Table 1 of § 63.560, the 

procedures listed in this section, and 

the test methods listed in § 63.565. The 

initial performance test shall be 

conducted within 180 days after the 

compliance date for the specific affected 

source. During this performance test, 

sources subject to MACT standards 

under § 63.562(b)(2), (3), (4), and (5), 

and (d)(2) shall determine the reduction 

of HAP emissions, as VOC, for all 

combustion or recovery devices other 

than flares. Performance tests shall be 

conducted under such conditions as the 

Administrator specifies to the owner or 

operator based on representative 

performance of the affected source for 

the period being tested. Upon request, 

the owner or operator shall make 

available to the Administrator such 

records as may be necessary to 

determine the conditions of 

performance tests. Sources subject to 

RACT standards under § 63.562(c)(3), 

(4), and (5), and (d)(2) shall determine 

the reduction of VOC emissions for all 

combustion or recovery devices other 

than flares. 

* * * * * 

■ 30. Section 63.567 is amended by 

adding paragraphs (m) and (n) to read as 

follows: 

§ 63.567 Recordkeeping and reporting 

requirements. 

* * * * * 

(m) The number, duration, and a brief 

description for each type of malfunction 

which occurred during the reporting 

period and which caused or may have 

caused any applicable emission 

limitation to be exceeded shall be stated 

in a semiannual report. The report must 

also include a description of actions 

taken by an owner or operator during a 

malfunction of an affected source to 

minimize emissions in accordance with 

§ 63.562(e), including actions taken to 

correct a malfunction. The report, to be 

certified by the owner or operator or 

other responsible official, shall be 

submitted semiannually and delivered 

or postmarked by the 30th day following 

the end of each calendar half. 

(n)(1) As of January 1, 2012 and 

within 60 days after the date of 

completing each performance test, as 

defined in § 63.2, and as required in this 

subpart, you must submit performance 

test data, except opacity data, 

electronically to EPA’s Central Data 

Exchange by using the ERT (see 

http://www.epa.gov/ttn/chief/ert/ert 

tool.html/) or other compatible 

electronic spreadsheet. Only data 

collected using test methods compatible 

with ERT are subject to this requirement 

to be submitted electronically into 

EPA’s WebFIRE database. 

(2) All reports required by this 

subpart not subject to the requirements 

in paragraph (n)(1) of this section must 

be sent to the Administrator at the 

appropriate address listed in § 63.13. If 

acceptable to both the Administrator 

and the owner or operator of a source, 

these reports may be submitted on 

electronic media. The Administrator 

retains the right to require submittal of 

reports subject to paragraph (n)(1) of 

this section in paper format. 

Subpart KK—[Amended] 

■ 31. Section 63.820 is amended by 

adding paragraph (c) to read as follows: 

§ 63.820 Applicability. 

* * * * * 

(c) In response to an action to enforce 

the standards set forth in this subpart, 

an owner or operator may assert an 

affirmative defense to a claim for civil 

penalties for exceedances of such 

standards that are caused by a 

malfunction, as defined in § 63.2. 

Appropriate penalties may be assessed, 

however, if the owner or operator fails 

to meet the burden of proving all the 

requirements in the affirmative defense. 

The affirmative defense shall not be 

available for claims for injunctive relief. 

(1) To establish the affirmative 

defense in any action to enforce such a 

limit, the owners or operators of a 

facility must timely meet the 

notification requirements of paragraph 

(c)(2) of this section, and must prove by 

a preponderance of evidence that: 

(i) The excess emissions were caused 

by a sudden, infrequent, and 

unavoidable failure of air pollution 

control and monitoring equipment, or a 

process to operate in a normal or usual 

manner; and could not have been 

prevented through careful planning, 

proper design or better operation and 

maintenance practices; and did not stem 

from any activity or event that could 

have been foreseen and avoided, or 

planned for; and were not part of a 

recurring pattern indicative of 

inadequate design, operation, or 

maintenance; 

(ii) Repairs were made as 

expeditiously as possible when the 

applicable emission limitations were 

being exceeded. Off-shift and overtime 

labor were used, to the extent 

practicable to make these repairs; 

(iii) The frequency, amount, and 

duration of the excess emissions 

(including any bypass) were minimized 

to the maximum extent practicable 

during periods of such emissions; 

(iv) If the excess emissions 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; 

(v) All possible steps were taken to 

minimize the impact of the excess 

emissions on ambient air quality, the 

environment, and human health; 

(vi) All emissions monitoring and 

control systems were kept in operation, 

if at all possible, consistent with safety 

and good air pollution control practices; 

(vii) All of the actions in response to 

the excess emissions were documented 

by properly signed, contemporaneous 

operating logs; 

(viii) At all times, the facility was 

operated in a manner consistent with 

good practices for minimizing 

emissions; and 

(ix) The owner or operator has 

prepared a written root cause analysis, 

the purpose of which is to determine, 

correct and eliminate the primary 

causes of the malfunction and the 

excess emissions resulting from the 

malfunction event at issue. The analysis 

shall also specify, using the best 

monitoring methods and engineering 

judgment, the amount of excess 

emissions that were the result of the 

malfunction. 

(2) Notification. The owner or 

operator of the facility experiencing an 

exceedance of its emission limit(s) 

during a malfunction shall notify the 

Administrator by telephone or facsimile 

(FAX) transmission as soon as possible, 

but no later than 2 business days after 

the initial occurrence of the 

malfunction, if it wishes to avail itself 

of an affirmative defense to civil 

penalties for that malfunction. The 

owner or operator seeking to assert an 

affirmative defense shall also submit a 

written report to the Administrator 

within 45 days of the initial occurrence 

of the exceedance of the standard in this 

subpart to demonstrate, with all 

necessary supporting documentation, 


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22598 Federal Register / Vol. 76, No. 77 / Thursday, April 21, 2011 / Rules and Regulations 

that it has met the requirements set forth 

in paragraph (c)(1) of this section. The 

owner or operator may seek an 

extension of this deadline for up to 30 

additional days by submitting a written 

request to the Administrator before the 

expiration of the 45 day period. Until a 

request for an extension has been 

approved by the Administrator, the 

owner or operator is subject to the 

requirement to submit such report 

within 45 days of the initial occurrence 

of the exceedance. 

■ 32. Section 63.822 is amended by 

adding in alphabetical order a definition 

for ‘‘affirmative defense’’ to paragraph (a) 

to read as follows: 

§ 63.822 Definitions. 

(a) * * * 

Affirmative defense means, in the 

context of an enforcement proceeding, a 

response or a 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. 

* * * * * 

■ 33. Section 63.823 is revised to read 

as follows: 

§ 63.823 Standards: General. 

(a) Table 1 to this subpart provides 

cross references to the 40 CFR part 63, 

subpart A, general provisions, 

indicating the applicability of the 

general provisions requirements to this 

subpart KK. 

(b) Each owner or operator of an 

affected source subject to this subpart 

must at all times operate and maintain 

that affected source, 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 source. 

■ 34. Section 63.827 is amended by 

adding introductory text to read as 

follows: 

§ 63.827 Performance test methods. 

Performance tests shall be conducted 

under such conditions as the 

Administrator specifies to the owner or 

operator based on representative 

performance of the affected source for 

the period being tested. Upon request, 

the owner or operator shall make 

available to the Administrator such 

records as may be necessary to 

determine the conditions of 

performance tests. 

* * * * * 

■ 35. Section 63.829 is amended by 

adding paragraphs (g) and (h) to read as 

follows: 

§ 63.829 Recordkeeping requirements. 

* * * * * 

(g) Each owner or operator of an 

affected source subject to this subpart 

shall maintain records of the occurrence 

and duration of each malfunction of 

operation (i.e., process equipment), air 

pollution control equipment, or 

monitoring equipment. 

(h) Each owner or operator of an 

affected source subject to this subpart 

shall maintain records of actions taken 

during periods of malfunction to 

minimize emissions in accordance with 

§ 63.823(b), including corrective actions 

to restore malfunctioning process and 

air pollution control and monitoring 

equipment to its normal or usual 

manner of operation. 

■ 36. Section 63.830 is amended by: 

■ a. Removing and reserving paragraph 

(b)(5); 

■ b. Adding paragraph (b)(6)(v); and 

■ c. Adding paragraph (c) to read as 

follows: 

§ 63.830 Reporting requirements. 

* * * * * 

(b) * * * 

(6) * * * 

(v) The number, duration, and a brief 

description for each type of malfunction 

which occurred during the reporting 

period and which caused or may have 

caused any applicable emission 

limitation to be exceeded. The report 

must also include a description of 

actions taken by an owner or operator 

during a malfunction of an affected 

source to minimize emissions in 

accordance with § 63.823(b), including 

actions taken to correct a malfunction. 

(c)(1) As of January 1, 2012, and 

within 60 days after the date of 

completing each performance test, as 

defined in § 63.2 and as required in this 

subpart, you must submit performance 

test data, except opacity data, 

electronically to EPA’s Central Data 

Exchange by using the ERT (see 

http://www.epa.gov/ttn/chief/ert/ert 

tool.html/) or other compatible 

electronic spreadsheet. Only data 

collected using test methods compatible 

with ERT are subject to this requirement 

to be submitted electronically into 

EPA’s WebFIRE database. 

(2) All reports required by this 

subpart not subject to the requirements 

in paragraph (c)(1) of this section must 

be sent to the Administrator at the 

appropriate address listed in § 63.13. If 

acceptable to both the Administrator 

and the owner or operator of a source, 

these reports may be submitted on 

electronic media. The Administrator 

retains the right to require submittal of 

reports subject to paragraph (c)(1) of this 

section in paper format. 

■ 37. Table 1 to Subpart KK of part 63 

is amended by: 

■ a. Removing entry 63.6(e); 

■ b. Adding entries 63.6(e)(1)(i), 

63.6(e)(1)(ii); 63.6(e)(1)(iii), 63.6(e)(2), 

and 63.6(e)(3); 

■ c. Removing entry 63.6(f); 

■ d. Adding entries 63.6(f)(1) and 

63.6(f)(2)–(f)(3); 

■ e. Removing entry 63.7; 

■ f. Adding entries 63.7(a)–(d), 

63.7(e)(1), and 63.7(e)(2)–(e)(4); 

■ g. Removing entry 63.8(d)–(f); 

■ h. Adding entries 63.8(d)(1)–(2), 

63.8(d)(3), and 63.8(e)–(f); 

■ i. Removing entries 63.10(b)(1)–(b)(3), 

63.10(c)(10)–(c)(15), and 63.10(d)(4)– 

(d)(5); 

■ j. Adding entries 63.10(b)(1), 

63.10(b)(2)(i), 63.10(b)(2)(ii), 

63.10(b)(2)(iii), 63.10(b)(2)(iv)–(b)(2)(v), 

63.10(b)(2)(vi)–(b)(2)(xiv), 63.10(b)(3), 

63.10(c)(10), 63.10(c)(11), 63.10(c)(12)– 

(c)(14), 63.10(c)(15), 63.10(d)(4), and 

63.10(d)(5) to read as follows: 

TABLE 1 TO SUBPART KK OF PART 63—APPLICABILITY OF GENERAL PROVISIONS TO SUBPART KK 

General provisons 

reference Applicable to subpart KK Comment 

*******

§ 63.6(e)(1)(i) .................................. No .................................................. See 63.823(b) for general duty requirement. Any cross-reference to 

63.6(e)(1)(i) in any other general provision incorporated by reference shall be treated as a cross-reference to 63.823(b). 


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Federal Register / Vol. 76, No. 77 / Thursday, April 21, 2011 / Rules and Regulations 22599 

TABLE 1 TO SUBPART KK OF PART 63—APPLICABILITY OF GENERAL PROVISIONS TO SUBPART KK—Continued 

General provisons 

reference Applicable to subpart KK Comment 

§ 63.6(e)(1)(ii) ................................. No.

§ 63.6(e)(1)(iii) ................................ Yes. 

§ 63.6(e)(2) ..................................... No .................................................. Section reserved. 

§ 63.6(e)(3) ..................................... No.

§ 63.6(f)(1) ...................................... No.

§ 63.6(f)(2)–(f)(3) ............................ Yes. 

* * * * * * * 

§ 63.7(a)–(d) ................................... Yes. 

§ 63.7(e)(1) ..................................... No .................................................. See 63.827 introductory text. Any cross-reference to 63.7(e)(1) in any 

other general provision incorporated by reference shall be treated 

as a cross-reference to 63.827 introductory text. 

§ 63.7(e)(2)–(e)(4) .......................... Yes. 

* * * * * * * 

§ 63.8(d)(1)–(2) .............................. Yes. 

§ 63.8(d)(3) ..................................... Yes, except for last sentence. 

§ 63.8(e)–(f) .................................... Yes. 

* * * * * * * 

§ 63.10(b)(1) ................................... Yes. 

§ 63.10(b)(2)(i) ................................ No. 

§ 63.10(b)(2)(ii) ............................... No .................................................. See 63.829(g) for recordkeeping of occurrence and duration of malfunctions. See 63.829(h) for recordkeeping of actions taken during 

malfunction. Any cross-reference to 63.10(b)(2)(ii) in any other general provision incorporated by reference shall be treated as a crossreference to 63.829(g). 

§ 63.10(b)(2)(iii) .............................. Yes. 

§ 63.10(b)(2)(iv)–(b)(2)(v) ............... No. 

§ 63.10(b)(2)(vi)–(b)(2)(xiv) ............ Yes. 

§ 63.10(b)(3) ................................... Yes. 

* * * * * * * 

§ 63.10(c)(10) ................................. No .................................................. See 63.830(b)(6)(v) for reporting malfunctions. Any cross-reference to 

63.10(c)(10) in any other general provision incorporated by reference shall be treated as a cross-reference to 63.830(b)(6)(v). 

§ 63.10(c)(11) ................................. No .................................................. See 63.830(b)(6)(v) for reporting malfunctions. Any cross-reference to 

63.10(c)(11) in any other general provision incorporated by reference shall be treated as a cross-reference to 63.830(b)(6)(v). 

§ 63.10(c)(12)–(c)(14) .................... Yes. 

§ 63.10(c)(15) ................................. No. 

* * * * * * * 

§ 63.10(d)(4) ................................... Yes. 

§ 63.10(d)(5) ................................... No. 

* * * * * * * 

Subpart GGG—[Amended] 

■ 38. Section 63.1250 is amended by 

revising paragraph (g) to read as follows: 

§ 63.1250 Applicability. 

* * * * * 

(g) Applicability of this subpart. (1) 

Each provision set forth in this subpart 

shall apply at all times, except that the 

provisions set forth in § 63.1255 of this 

subpart shall not apply during periods 

of nonoperation of the PMPU (or 

specific portion thereof) in which the 

lines are drained and depressurized 

resulting in the cessation of the 

emissions to which § 63.1255 of this 

subpart applies. 

(2) The owner or operator shall not 

shut down items of equipment that are 

required or utilized for compliance with 

the emissions limitations of this subpart 

during times when emissions (or, where 

applicable, wastewater streams or 

residuals) are being routed to such items 

of equipment, if the shutdown would 

contravene emissions limitations of this 

subpart applicable to such items of 

equipment. This paragraph does not 

apply if the owner or operator must shut 

down the equipment to avoid damage to 

a PMPU or portion thereof. 

(3) At all times, each owner or 

operator must operate and maintain any 

affected source subject to the 

requirements of this subpart, including 

associated air pollution control 

equipment and monitoring equipment, 

in a manner consistent with safety and 

good air pollution control practices for 

minimizing emissions. The general duty 

to minimize emissions does not require 

the owner or operator to make any 

further efforts to reduce emissions if 

levels required by this standard have 

been achieved. 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 source. 


emcdonald on DSK2BSOYB1PROD with RULES3
22600 Federal Register / Vol. 76, No. 77 / Thursday, April 21, 2011 / Rules and Regulations 

(4) In response to an action to enforce 

the standards set forth in this subpart, 

an owner or operator may assert an 

affirmative defense to a claim for civil 

penalties for exceedances of such 

standards that are caused by a 

malfunction, as defined in § 63.2. 

Appropriate penalties may be assessed, 

however, if owner or operator fails to 

meet the burden of proving all the 

requirements in the affirmative defense. 

The affirmative defense shall not be 

available for claims for injunctive relief. 

(i) To establish the affirmative defense 

in any action to enforce such a limit, the 

owners or operators of a facility must 

timely meet the notification 

requirements of paragraph (g)(4)(ii) of 

this section, and must prove by a 

preponderance of evidence that: 

(A) The excess emissions were caused 

by a sudden, infrequent, and 

unavoidable failure of air pollution 

control and monitoring equipment, or a 

process to operate in a normal and usual 

manner; and could not have been 

prevented through careful planning, 

proper design, or better operation and 

maintenance practices; and did not stem 

from any activity or event that could 

have been foreseen and avoided, or 

planned for; and were not part of a 

recurring pattern indicative of 

inadequate design, operation, or 

maintenance; 

(B) Repairs were made as 

expeditiously as possible when the 

applicable emission limitations were 

being exceeded. Off-shift and overtime 

labor were used, to the extent 

practicable to make these repairs; 

(C) The frequency, amount, and 

duration of the excess emissions 

(including any bypass) were minimized 

to the maximum extent practicable 

during periods of such emissions; 

(D) If the excess emissions 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; 

(E) All possible steps were taken to 

minimize the impact of the excess 

emissions on ambient air quality, the 

environment, and human health; 

(F) All emissions monitoring and 

control systems were kept in operation 

if at all possible, consistent with safety 

and good air pollution control practices; 

(G) All of the actions in response to 

the excess emissions were documented 

by properly signed, contemporaneous 

operating logs; 

(H) At all times, the facility was 

operated in a manner consistent with 

good practices for minimizing 

emissions; and 

(I) The owner or operator has 

prepared a written root cause analysis, 

the purpose of which is to determine, 

correct, and eliminate the primary 

causes of the malfunction and the 

excess emissions resulting from the 

malfunction event at issue. The analysis 

shall also specify, using the best 

monitoring methods and engineering 

judgment, the amount of excess 

emissions that were the result of the 

malfunction. 

(ii) Notification. The owner or 

operator of the facility experiencing an 

exceedance of its emission limit(s) 

during a malfunction shall notify the 

Administrator by telephone or facsimile 

(FAX) transmission as soon as possible, 

but no later than 2 business days after 

the initial occurrence of the 

malfunction, if it wishes to avail itself 

of an affirmative defense to civil 

penalties for that malfunction. The 

owner or operator seeking to assert an 

affirmative defense shall also submit a 

written report to the Administrator 

within 45 days of the initial occurrence 

of the exceedance of the standard in this 

subpart to demonstrate, with all 

necessary supporting documentation, 

that it has met the requirements set forth 

in paragraph (g)(4)(i) of this section. The 

owner or operator may seek an 

extension of this deadline for up to 30 

additional days by submitting a written 

request to the Administrator before the 

expiration of the 45 day period. Until a 

request for an extension has been 

approved by the Administrator, the 

owner or operator is subject to the 

requirement to submit such report 

within 45 days of the initial occurrence 

of the exceedance. 

* * * * * 

■ 39. Section 63.1251 is amended by 

adding in alphabetical order a definition 

for ‘‘affirmative defense’’ to read as 

follows: 

§ 63.1251 Definitions. 

* * * * * 

Affirmative defense means, in the 

context of an enforcement proceeding, a 

response or a 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. 

* * * * * 

■ 40. Section 63.1255 is amended by 

revising paragraph (g)(4)(v)(A) to read as 

follows: 

§ 63.1255 Standards: Equipment leaks. 

* * * * * 

(g) * * * 

(4) * * * 

(v) * * * 

(A) The owner or operator may 

develop a written procedure that 

identifies the conditions that justify a 

delay of repair. The written procedures 

shall be included in a document that is 

maintained at the plant site. Reasons for 

delay of repair may be documented by 

citing the relevant sections of the 

written procedure. 

* * * * * 

■ 41. Section 63.1256 is amended by 

revising paragraph (a)(4)(i) introductory 

text, and removing paragraphs (a)(4)(iii) 

and (iv) to read as follows: 

§ 63.1256 Standards: Wastewater. 

(a) * * * 

(4) * * * 

(i) The owner or operator shall 

prepare a description of maintenance 

procedures for management of 

wastewater generated from the emptying 

and purging of equipment in the process 

during temporary shutdowns for 

inspections, maintenance, and repair 

(i.e., a maintenance turnaround) and 

during periods which are not 

shutdowns (i.e., routine maintenance). 

The descriptions shall be included in a 

document that is maintained at the 

plant site and shall: 

* * * * * 

■ 42. Section 63.1257 is amended by 

revising paragraph (a) introductory text 

and the first sentence of paragraph 

(e)(2)(iii)(A)(6)(ii) to read as follows: 

§ 63.1257 Test methods and compliance 

procedures. 

(a) General. Except as specified in 

paragraph (a)(5) of this section, the 

procedures specified in paragraphs (c), 

(d), (e), and (f) of this section are 

required to demonstrate initial 

compliance with §§ 63.1253, 63.1254, 

63.1256, and 63.1252(e), respectively. 

The provisions in paragraphs (a)(2) and 

(3) apply to performance tests that are 

specified in paragraphs (c), (d), and (e) 

of this section. The provisions in 

paragraph (a)(5) of this section are used 

to demonstrate initial compliance with 

the alternative standards specified in 

§§ 63.1253(d) and 63.1254(c). The 

provisions in paragraph (a)(6) of this 

section are used to comply with the 

outlet concentration requirements 

specified in §§ 63.1253(c), 

63.1254(a)(2)(i), and (a)(3)(ii)(B), 

63.1254(b)(i), and 63.1256(h)(2). 

Performance tests shall be conducted 

under such conditions representative of 

performance of the affected source for 

the period being tested. Upon request, 

the owner or operator shall make 

available to the Administrator such 

records as may be necessary to 


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determine the conditions of 

performance tests. 

* * * * * 

(e) * * * 

(2) * * * 

(iii) * * * 

(A) * * * 

(6) * * * 

(ii) The owner or operator may 

consider the inlet to the equalization 

tank as the inlet to the biological 

treatment process if the wastewater is 

conveyed by hard-piping from either the 

last previous treatment process or the 

point of determination to the 

equalization tank; and the wastewater is 

conveyed from the equalization tank 

exclusively by hard-piping to the 

biological treatment process and no 

treatment processes or other waste 

management units are used to store, 

handle, or convey the wastewater 

between the equalization tank and the 

biological treatment process; and the 

equalization tank is equipped with a 

fixed roof and a closed-vent system that 

routes emissions to a control device that 

meets the requirements of 

§ 63.1256(b)(1)(i) through (iv) and 

§ 63.1256(b)(2)(i). * * * 

* * * * * 

§ 63.1258 [Amended] 

■ 43. Section 63.1258 is amended by 

removing paragraph (b)(8)(iv). 

■ 44. Section 63.1259 is amended by 

revising paragraph (a)(3) to read as 

follows: 

§ 63.1259 Recordkeeping requirements. 

* * * * * 

(a) * * * 

(3) Malfunction records. Each owner 

or operator of an affected source subject 

to this subpart shall maintain records of 

the occurrence and duration of each 

malfunction of operation (i.e., process 

equipment), air pollution control 

equipment, or monitoring equipment. 

Each owner or operator shall maintain 

records of actions taken during periods 

of malfunction to minimize emissions in 

accordance with § 63.1250(g)(3), 

including corrective actions to restore 

malfunctioning process and air 

pollution control and monitoring 

equipment to its normal or usual 

manner of operation. 

* * * * * 

■ 45. Section 63.1260 is amended by: 

■ a. Revising paragraph (a); 

■ b. Revising paragraph (i); and 

■ c. Adding paragraph (n) to read as 

follows: 

§ 63.1260 Reporting requirements. 

* * * * * 

(a) The owner or operator of an 

affected source shall comply with the 

reporting requirements of paragraphs (b) 

through (n) of this section. Applicable 

reporting requirements of §§ 63.9 and 

63.10 are also summarized in Table 1 of 

this subpart. 

* * * * * 

(i) The owner or operator shall submit 

a report of the number, duration, and a 

brief description for each type of 

malfunction which occurred during the 

reporting period and which caused or 

may have caused any applicable 

emission limitation to be exceeded. The 

report must also include a description of 

actions taken by an owner or operator 

during a malfunction of an affected 

source to minimize emissions in 

accordance with § 63.1250(g)(3), 

including actions taken to correct a 

malfunction. The report shall be 

submitted on the same schedule as the 

periodic reports required under 

paragraph (g) of this section. 

* * * * * 

(n)(1) As of January 1, 2012, and 

within 60 days after the date of 

completing each performance test, as 

defined in § 63.2 and as required in this 

subpart, you must submit performance 

test data, except opacity data, 

electronically to EPA’s Central Data 

Exchange by using the ERT (see 

http://www.epa.gov/ttn/chief/ert/ert 

tool.html/) or other compatible 

electronic spreadsheet. Only data 

collected using test methods compatible 

with ERT are subject to this requirement 

to be submitted electronically into 

EPA’s WebFIRE database. 

(2) All reports required by this 

subpart not subject to the requirements 

in paragraphs (n)(1) of this section must 

be sent to the Administrator at the 

appropriate address listed in § 63.13. If 

acceptable to both the Administrator 

and the owner or operator of a source, 

these reports may be submitted on 

electronic media. The Administrator 

retains the right to require submittal of 

reports subject to paragraph (n)(1) of 

this section in paper format. 

■ 46. Table 1 to Subpart GGG is 

amended by: 

■ a. Removing entry 63.6(e); 

■ b. Adding entries 63.6(e)(1)(i), 

63.6(e)(1)(ii), 63.6(e)(1)(iii), 63.6(e)(2), 

and 63.6(e)(3); 

■ c. Removing entry 63.6(f)–(g); 

■ d. Adding entries 63.6(f)(1), 63.6(f)(2)– 

(3), 63.6(g); 

■ e. Removing entry 63.7(e); 

■ f. Adding entries 63.7(e)(1) and 

63.7(e)(2)–(4); 

■ g. Removing entry 63.8(d); 

■ h. Adding entries 63.8(d)(1)–(2) and 

63.8(d)(3). 

■ i. Removing entry 63.10(c)–(d)(2); 

■ j. Adding entries 63.10(c)(1)–(9), 

63.10(c)(10), 63.10(c)(11), 63.10(c)(12)– 

(14), 63.10(c)(15), and 63.10(d)(1)–(2); 

■ k. Removing entry 63.10(d)(4–5); and 

■ l. Adding entries 63.10(d)(4) and 

63.10(d)(5) to read as follows: 

TABLE 1 TO SUBPART GGG OF PART 63—GENERAL PROVISIONS APPLICABILITY TO SUBPART GGG 

General provisions reference Summary of requirements 

Applies to 

subpart GGG Comments 

*******

§ 63.6(e)(1)(i) .......................................... Requirements during periods of startup, shutdown, and malfunction.No .............................. See 63.1250(g)(3) for general duty requirement. 

Any cross-reference to 63.6(e)(1)(i) in any other 

general provision incorporated by reference 

shall be treated as a cross-reference to 

63.1250(g)(3). 

§ 63.6(e)(1)(ii) .......................................... Malfunction correction 

requirements.

No. 

§ 63.6(e)(1)(iii) ......................................... Enforceability of operation and maintenance 

requirements.

Yes. 

§ 63.6(e)(2) .............................................. Reserved ....................... No .............................. Section reserved. 

§ 63.6(e)(3) .............................................. Startup, shutdown, and 

malfunction plan requirements.

No. 


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22602 Federal Register / Vol. 76, No. 77 / Thursday, April 21, 2011 / Rules and Regulations 

TABLE 1 TO SUBPART GGG OF PART 63—GENERAL PROVISIONS APPLICABILITY TO SUBPART GGG—Continued 

General provisions reference Summary of requirements 

Applies to 

subpart GGG Comments 

*******

63.6(f)(1) ................................................. Applicability of nonopacity emission 

standards.

No. 

63.6(f)(2)–(3) ........................................... Methods of determining 

compliance and findings compliance.

Yes. 

63.6(g) ..................................................... Use of an alternative 

nonopacity emission 

standard.

Yes. 

* * * * * * * 

63.7(e)(1) ................................................ Conduct of performance 

tests.

No .............................. See 63.1257(a) text. Any cross-reference to 

63.7(e)(1) in any other general provision incorporated by reference shall be treated as a 

cross-reference to 63.1257(a). 

63.7(e)(2)–(4) .......................................... Performance tests requirements.Yes. 

* * * * * * * 

63.8(d)(1)–(2) .......................................... CMS quality control program requirements.Yes. 

63.8(d)(3) ................................................ CMS quality control program recordkeeping 

requirements.

Yes, except for last 

sentence.

* * * * * * * 

63.10(c)(1)–(9) ........................................ Additional recordkeeping 

requirements for 

sources with continuous monitoring systems.

Yes. 

63.10(c)(10) ............................................ Malfunction recordkeeping requirement.No .............................. Subpart GGG specifies recordkeeping requirements. 

63.10(c)(11) ............................................ Malfunction corrective 

action recordkeeping 

requirement.

No .............................. Subpart GGG specifies recordkeeping requirements. 

63.10(c)(12)–(14) .................................... Additional recordkeeping 

requirements for 

sources with continuous monitoring systems.

Yes. 

63.10(c)(15) ............................................ Additional SSM recordkeeping requirements.No. 

* * * * * * * 

63.10(d)(1)–(2) ........................................ General reporting requirements.Yes. 

* * * * * * * 

63.10(d)(4) .............................................. Progress report requirements.Yes. 

63.10(d)(5) .............................................. Startup, shutdown, and 

malfunction report requirements.

No .............................. Subpart GGG specifies reporting requirements. 

* * * * * * * 

[FR Doc. 2011–8168 Filed 4–20–11; 8:45 am] 

BILLING CODE 6560–50–P 


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