***E.O. 12866 Review-Draft-Do Not Cite, Quote or Release During Review***

EO12866_CMAS Recon 2060-AQ89Final_20121015

6560-50-P

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 63

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

RIN 2060-AQ89

National Emission Standards for Hazardous Air Pollutants for 

Chemical Manufacturing Area Sources

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

SUMMARY: On January 30, 2012, the EPA proposed revisions to 

several provisions of the final national emission standards for 

the control of hazardous air pollutants for nine area source 

categories in the chemical manufacturing sector, including 

Agricultural Chemicals and Pesticides Manufacturing, Cyclic 

Crude and Intermediate Production, Industrial Inorganic Chemical 

Manufacturing, Industrial Organic Chemical Manufacturing, 

Inorganic Pigments Manufacturing, Miscellaneous Organic Chemical 

Manufacturing, Plastic Materials and Resins Manufacturing, 

Pharmaceutical Production and Synthetic Rubber Manufacturing. 

The proposed revisions were made, in part, in response to a 

petition for reconsideration received by the Administrator 

following the promulgation of the October 29, 2009, final rule 
***E.O. 12866 Review-Draft-Do Not Cite, Quote or Release During Review***

Page 2 of 113

(“2009 final rule”). In addition, this final action includes 

revisions to the EPA’s approach for addressing malfunctions and 

standards applicable during startup and shutdown periods. This 

final action also includes amendments and technical corrections 

to the final rule to clarify applicability and compliance issues 

raised by stakeholders subject to the 2009 final rule. The 

revisions to the final rule do not reduce the level of 

environmental protection or emissions control on sources 

regulated by this rule but provide flexibility and clarity to 

improve implementation. This action also provides a 90-day 

extension of the compliance date for existing sources and the 

EPA’s final response to all issues raised in the petition for 

reconsideration.

DATES: This final rule is effective on [INSERT DATE OF 

PUBLICATION OF THE FINAL RULE IN FEDERAL REGISTER].

ADDRESSES: The EPA has established a docket for this action 

under Docket ID No. EPA-HQ-OAR-2008-0334. All documents in the 

docket are listed in the www.regulations.gov index. Although 

listed in the index, some information is not publicly available, 

e.g., confidential business information or other information 

whose disclosure is restricted by statute. Certain other 

material, such as copyrighted material, will be publicly 

available only in hard copy. Publicly available docket materials 
***E.O. 12866 Review-Draft-Do Not Cite, Quote or Release During Review***

Page 3 of 113

are available either electronically in www.regulations.gov or in 

hard copy at the EPA Docket Center, EPA West Building, Room 

3334, 1301 Constitution Ave., NW, Washington, DC. The Public 

Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through 

Friday, excluding legal holidays. The telephone number for the 

Public Reading Room is (202) 566-1744, and the telephone number 

for the Docket Center is (202) 566-1742.

FOR FURTHER INFORMATION CONTACT: Mr. Nick Parsons, Sector 

Policies and Programs Division (E143-01), Office of Air Quality 

Planning and Standards, U.S. Environmental Protection Agency, 

Research Triangle Park, North Carolina 27711; telephone number: 

(919) 541-5372; fax number: (919) 541-0246; email address: 

parsons.nick@epa.gov.

SUPPLEMENTARY INFORMATION:

Acronyms and Abbreviations. Several acronyms and terms used 

to describe industrial processes are included in this final 

action. While this may not be an exhaustive list, to ease the 

reading of this preamble and for reference purposes, the 

following terms and acronyms are defined here:

CAA Clean Air Act

CEMS Continuous Emission Monitoring System

CFR Code of Federal Regulations

CMAS Chemical Manufacturing Area Source

CMPU Chemical Manufacturing Process Unit

COMS Continuous Opacity Monitoring System

CPMS Continuous Parameter Monitoring System
***E.O. 12866 Review-Draft-Do Not Cite, Quote or Release During Review***

Page 4 of 113

EPA Environmental Protection Agency

FESOP Federally Enforceable State Operating Permit

GACT Generally Available Control Technology

HAP Hazardous Air Pollutants

HON National Emission Standards for Organic Hazardous Air 

Pollutants From the Synthetic Organic Chemical 

Manufacturing Industry

ICR Information Collection Request

lb/yr Pounds Per Year

MACT Maximum Achievable Control Technology

MON National Emission Standards for Hazardous Air 

Pollutants: Miscellaneous Organic Chemical 

Manufacturing

MSDS Material Safety Data Sheet

NESHAP National Emissions Standards for Hazardous Air 

Pollutants

NOCS Notice of Compliance Status

NTTAA National Technology Transfer and Advancement Act

OECA Office of Enforcement and Compliance Assurance

OMB Office of Management and Budget

ppmv Parts Per Million by Volume

RCRA Resource Conservation and Recovery Act

SARU Sulfuric Acid Regeneration Unit

SSM Startup, Shutdown and Malfunction

tpy Tons Per Year

TTN Technology Transfer Network

UMRA Unfunded Mandates Reform Act

VCS Voluntary Consensus Standards

VOC Volatile Organic Compound

WWW World Wide Web

Organization of this Document. The following outline is 

provided to aid in locating information in this preamble.

I. General Information

A. Executive Summary

B. Does this action apply to me?

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

related information?

D. Judicial Review

II. Background Information

III. Summary of Final Rule Revisions

A. Applicability of the Family of Materials Concept

B. Title V Permitting Requirements
***E.O. 12866 Review-Draft-Do Not Cite, Quote or Release During Review***

Page 5 of 113

C. Requirements When Other Rules Overlap with the Final 

Rule

D. Requirement to Conduct Direct and Proximal Leak 

Inspections

E. Requirement for Covers or Lids on Process Vessels

F. Requirement to Conduct Leak Inspections When Equipment 

is in HAP Service

G. Requirements During Periods of Startup, Shutdown and 

Malfunction

H. Requirements for Metal HAP Process Vents

I. Extension of the Compliance Date

J. Technical Corrections

IV. Summary of Major Changes Since Proposal

A. Title V Permitting Requirements

B. Requirement for Covers or Lids on Process Vessels

C. Requirement to Conduct Leak Inspections When Equipment 

is in HAP Service

D. Requirements for Metal HAP Process Vents

E. Extension of the Compliance Date

F. Technical Corrections

V. Summary of Comments and Responses

A. Title V Permitting Requirements

B. Requirements When Other Rules Overlap With the Final 

Rule

C. Requirement to Conduct Direct and Proximal Leak 

Inspections

D. Requirement for Covers or Lids on Process Vessels

E. Requirement to Conduct Leak Inspections When Equipment 

is in HAP Service

F. Applicability of the Family of Materials Concept

G. Requirements for Metal HAP Process Vents

H. Compliance Date

I. Technical Corrections

VI. What other actions are we taking?

A. De Minimis Exemption

B. Research and Development Interpretation

C. Pollution Prevention Alternative

VII. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review 

and Executive Order 13563: Improving Regulation and 

Regulatory Review

B. Paperwork Reduction Act

C. Regulatory Flexibility Act

D. Unfunded Mandates Reform Act

E. Executive Order 13132: Federalism
***E.O. 12866 Review-Draft-Do Not Cite, Quote or Release During Review***

Page 6 of 113

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 LowIncome Populations

K. Congressional Review Act

A red-line version of the regulatory language that incorporates 

the changes in this action is available in the docket.

I. General Information

A. Executive Summary

1. Purpose of the Regulatory Action

The EPA issued the NESHAP for the nine chemical 

manufacturing area source categories (40 CFR part 63, subpart 

VVVVVV) on October 29, 2009 (74 FR 56008). Pursuant to CAA 

section 307(d)(7)(B), the EPA received a petition for 

reconsideration on February 12, 2010. The petitioners requested 

that the EPA reconsider six provisions in the final rule. In 

response to this petition, the EPA proposed revisions to several 

provisions of the final rule on January 30, 2012 (77 FR 4522).

This final action addresses the public comments on the 

proposal and finalizes amendments to subpart VVVVVV. The 

amendments relate to issues raised in the petition for 

reconsideration and also include technical corrections that 
***E.O. 12866 Review-Draft-Do Not Cite, Quote or Release During Review***

Page 7 of 113

clarify applicability and compliance issues of the final rule. 

This action also provides a 90-day extension of the compliance 

date for existing sources.

2. Summary of Major Provisions

The revised final rule lifts the stay on the title V 

permitting requirement and requires that certain chemical 

manufacturing synthetic area sources that installed controls 

obtain a title V permit. The EPA continues to believe that the 

additional protections provided by a title V permit are 

warranted for the sources subject to title V pursuant to this 

rule for the reasons stated in the rulemaking record. See 74 FR 

56013-56014, 56034-56039 (October 29, 2009); 77 FR 4525-4527 

(January 30, 2012). 

The EPA is also finalizing several revisions to the final 

rule to improve clarity and provide facilities with greater 

flexibility. The leak inspection requirements are revised such 

that facilities conduct quarterly sensory inspections instead of 

“direct and proximal (thorough)” inspections, and that leak 

inspections may be conducted while equipment is in VOC service 

instead of in organic HAP service. The final rule also allows 

facilities to remove the required cover or lid on a process 

vessel when access is required during manual operations. Several 

definitions, including “in organic HAP service,” “in metal HAP 
***E.O. 12866 Review-Draft-Do Not Cite, Quote or Release During Review***

Page 8 of 113

service,” “metal HAP process vent” and “family of materials” are 

clarified and/or revised in the final rule. The EPA is also 

finalizing several technical corrections. Finally, the EPA is 

extending the compliance date for existing sources by 90 days to 

January 27, 2013.

3. Costs and Emissions Reductions

The costs and emissions reductions associated with this 

rule have not changed from the October 29, 2009, final rule. 

Table 1 below summarizes the costs and emissions reductions of 

40 CFR part 63, subpart VVVVVV. See section VI of the preamble 

to the October 29, 2009 final rule (74 FR 56039-56040) for 

further discussion of the costs and impacts.

Table 1. Summary of the Costs and Emissions Reductions of 40 CFR 

Part 63, Subpart VVVVVV

Requirement

Capital 

Costs ($)

Annualized 

Costs 

($/yr)

Emissions 

Reductions 

(tpy)

Batch process vents $390,000 $370,000 <43

Continuous process 

vents $170,000 $85,000 <29

Metal HAP process vents $690,000 $1,700,000 41

Storage tanks $85,000 $15,000 5

Heat exchange systems $640,000 $280,000 79

Transfer operations $75,000 $10,000 1

Wastewater systems $210,000 $79,000 51

Management practices $540,000 $685,000 N/A

Total $2,800,000 $3,200,000 248

B. Does this action apply to me?
***E.O. 12866 Review-Draft-Do Not Cite, Quote or Release During Review***

Page 9 of 113

The regulated categories and entities potentially affected 

by this action include:

Industry 

Category

NAICS 

Code1

Examples of Regulated Entities

Chemical 

Manufacturing

325 Chemical manufacturing area sources that 

use as feedstock, generate as byproduct or 

produce as product, any of the hazardous 

air pollutants (HAP) subject to this 

subpart except for: (1) Processes 

classified in NAICS Code 325222, 325314 or 

325413; (2) processes subject to standards 

for other listed area source categories2 in 

NAICS Code 325; (3) certain fabricating 

operations; (4) manufacture of photographic 

film, paper and plate where material is 

coated or contains chemicals (but the 

manufacture of the photographic chemicals 

is regulated); and (5) manufacture of 

radioactive elements or isotopes, radium 

chloride, radium luminous compounds, 

strontium and uranium.

1 North American Industry Classification System.

2 The source categories in NAICS Code 325 for which other area 

source standards apply are: Acrylic Fibers/Modacrylic Fibers 

Production, Chemical Preparation, Carbon Black, Chemical 

Manufacturing: Chromium Compounds, Lead Oxide Production, 

Polyvinyl Chloride and Copolymers Production, Paint and Allied 

Coatings and Mercury Cell Chlor-Alkali Manufacturing.

This table is not intended to be exhaustive, but rather 

provides a guide for readers regarding entities likely to be 

regulated by this reconsideration action. To determine whether 

your facility may be affected by this final rule, you should 

examine the applicability criteria in 40 CFR 63.11494 of subpart 

VVVVVV (National Emission Standards for Hazardous Air Pollutants 

for Chemical Manufacturing Area Sources). If you have any 
***E.O. 12866 Review-Draft-Do Not Cite, Quote or Release During Review***

Page 10 of 113

questions regarding the applicability of the final rule to a 

particular entity, consult either the air permit authority for 

the entity or your EPA regional representative, as listed in 40 

CFR 63.13.

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

information?

Docket. The docket number for this action and the final 

rule (40 CFR part 63, subpart VVVVVV) is Docket ID No. EPA-HQOAR-2008-0334.

World Wide Web (WWW). In addition to being available in the 

docket, an electronic copy of this action is available on the 

WWW through the Technology Transfer Network (TTN) website. 

Following signature, a copy of this notice will be posted on the 

TTN’s policy and guidance page for newly proposed or promulgated 

rules at http://www.epa.gov/ttn/oarpg. The TTN provides 

information and technology exchange in various areas of air 

pollution control.

D. Judicial Review

Under section 307(b)(1) of the Clean Air Act (CAA), 

judicial review of this final rule is available only by filing a 

petition for review in the United States Court of Appeals for 

the District of Columbia Circuit by [INSERT DATE 60 DAYS AFTER 

PUBLICATION OF THE FINAL RULE IN FEDERAL REGISTER]. Under 
***E.O. 12866 Review-Draft-Do Not Cite, Quote or Release During Review***

Page 11 of 113

section 307(b)(2) of the CAA, the requirements established by 

this final rule may not be challenged separately in any civil or

criminal proceedings brought by the EPA to enforce these 

requirements. Section 307(d)(7)(B) of the CAA further provides 

that “[o]nly an objection to a rule or procedure which was 

raised with reasonable specificity during the period for public 

comment (including any public hearing) may be raised during 

judicial review.” This section also provides a mechanism for the 

EPA to convene a proceeding for reconsideration, “[i]f the 

person raising an objection can demonstrate to EPA that it was 

impracticable to raise such objection within [the period for 

public comment] or if the grounds for such objection arose after 

the period for public comment (but within the time specified for 

judicial review) and if such objection is of central relevance 

to the outcome of this rule.” Any person seeking to make such a 

demonstration to us should submit a Petition for Reconsideration 

to the Office of the Administrator, U.S. EPA, Room 3000, Ariel 

Rios Building, 1200 Pennsylvania Ave., NW., Washington, DC 

20460, with a copy to both the person listed in the preceding 

FOR FURTHER INFORMATION CONTACT section, and the Associate 

General Counsel for the Air and Radiation Law Office, Office of 

General Counsel (Mail Code 2344A), U.S. EPA, 1200 Pennsylvania 

Ave., NW., Washington, DC 20460.
***E.O. 12866 Review-Draft-Do Not Cite, Quote or Release During Review***

Page 12 of 113

II. Background Information

Section 112(d) of the CAA requires the EPA to establish 

national emission standards for hazardous air pollutants 

(NESHAP) for both major and area sources of HAP that are listed 

for regulation under CAA section 112(c). A major source is any 

stationary source that emits or has the potential to emit 10 

tons per year (tpy) or more of any single HAP or 25 tpy or more 

of any combination of HAP. An area source is a stationary source 

that is not a major source.

On October 29, 2009 (74 FR 56008), the EPA issued the 

NESHAP for the nine chemical manufacturing area source (CMAS) 

categories that were listed pursuant to CAA sections 112(c)(3) 

and 112(k)(3)(B). The nine area source categories are 

Agricultural Chemicals and Pesticides Manufacturing, Cyclic 

Crude and Intermediate Production, Industrial Inorganic Chemical 

Manufacturing, Industrial Organic Chemical Manufacturing, 

Inorganic Pigments Manufacturing, Miscellaneous Organic Chemical 

Manufacturing, Plastic Materials and Resins Manufacturing, 

Pharmaceutical Production and Synthetic Rubber Manufacturing. 

Section 112(k)(3)(B) of the CAA directs the EPA to identify 

at least 30 HAP that, as a result of emissions from area 

sources, pose the greatest threat to public health in the 

largest number of urban areas. The EPA implemented this 
***E.O. 12866 Review-Draft-Do Not Cite, Quote or Release During Review***

Page 13 of 113

provision in 1999 in the Integrated Urban Air Toxics Strategy, 

(64 FR 38715, July 19, 1999) (Strategy). Specifically, in the 

Strategy, the EPA identified 30 HAP that pose the greatest 

potential health threat in urban areas and these HAP are 

referred to as the “30 urban HAP.” Section 112(c)(3) of the CAA 

requires the EPA to list sufficient categories or subcategories 

of area sources to ensure that area sources representing 90 

percent of the area source emissions of the 30 urban HAP are 

subject to regulation. The EPA completed this requirement in 

2011 (76 FR 15308, March 21, 2011). The nine CMAS categories 

were listed to satisfy this requirement for 15 of the 30 urban 

HAP.1 Pursuant to CAA section 112(d)(5), the NESHAP reflect 

generally available control technologies or management practices 

(GACT). The NESHAP apply to each chemical manufacturing process 

unit (CMPU) that uses, generates or produces any of the 15 urban 

HAP for which the area source categories were listed 

(collectively “chemical manufacturing urban HAP” or “Table 1 

HAP”).

On February 12, 2010, following promulgation of the 2009 

final rule, the EPA received a petition for reconsideration from 

 

1 The 15 urban HAP for which the chemical manufacturing area source categories 

were listed under CAA section 112(c) are identified in table 1 of the final 

rule.
***E.O. 12866 Review-Draft-Do Not Cite, Quote or Release During Review***

Page 14 of 113

the American Chemistry Council and the Society of Chemical 

Manufacturers & Affiliates (“Petitioners”). A copy of this 

petition is provided in the docket (see Docket Item No. EPA-HQOAR-2008-0334-0098). Petitioners, pursuant to CAA section 

307(d)(7)(B), requested that the EPA reconsider six provisions 

in the rules: (1) The requirement that major sources that 

installed air pollution controls after 1990, and, as a result, 

became area sources, obtain a title V permit; (2) the 

requirement that sources subject to the final rule and any 

overlapping provision in another rule comply with each provision 

independently, or with the most stringent requirements of each 

rule; (3) the requirement that leak inspections include direct 

and proximal (thorough) inspection of all areas of potential 

leak within the CMPU; (4) the requirement that process vessels 

in HAP service be equipped with a cover or lid that must be in 

place at all times when the vessel contains HAP, except for 

material addition and sampling; (5) the requirement to conduct 

leak inspections while the equipment is in HAP service; and (6) 

the requirement that a CMPU include all equipment and processes 

used to produce a “family of materials.”2 The arguments in 

 

2 The petition also requested that the EPA take comment on three additional 

issues: 1) a de minimis exemption for all sources; 2) a revision of the 

definition of laboratory analysis unit to include commercial development 
***E.O. 12866 Review-Draft-Do Not Cite, Quote or Release During Review***

Page 15 of 113

support of these requests are provided in the petition and in 

the preamble to the reconsideration proposed rule revisions (77 

FR 4525-4530, January 30, 2012). Petitioners also requested that 

the EPA stay the effectiveness of these provisions of the rule 

to save many facilities from needlessly having to file the 

initial notifications required by the final rule.

On June 15, 2010, the EPA sent a letter to the Petitioners 

informing them that the EPA was granting the request for 

reconsideration on at least one of the issues raised in the 

petition, and that the agency would identify the specific issue 

or issues for which it was granting reconsideration in the 

reconsideration notice that would be published in the Federal 

Register. The letter also indicated that the EPA considered the 

request for a stay to be moot because the due date for initial 

notifications had already passed.

On January 30, 2012, the EPA published proposed rule 

revisions that included six provisions for which reconsideration 

was requested. Specifically, the EPA: (1) proposed to narrow the 

requirement for sources to obtain a title V permit to only those 

synthetic area sources that installed a federally-enforceable 

 

activities; and 3) a pollution prevention alternative. The EPA did not seek 

comment on these issues in reconsideration as explained below in section VI 

of this preamble.
***E.O. 12866 Review-Draft-Do Not Cite, Quote or Release During Review***

Page 16 of 113

control device on an affected CMPU; (2) sought comment on the 

overlapping provisions requirement; (3) proposed to remove the 

requirement to conduct direct and proximal (thorough) leak 

inspections; (4) proposed to allow sources to remove the cover 

or lid on a process vessel when manual access is necessary; (5) 

sought comment on allowing leak inspections to be conducted when 

equipment is in volatile organic compound (VOC) service; and (6) 

proposed to clarify the family of materials concept. In 

addition, the EPA also proposed clarifying revisions to the 

requirements for metal HAP process vents, the addition of the 

affirmative defense provisions and numerous technical 

corrections.

III. Summary of Final Rule Revisions

A. Applicability of the Family of Materials Concept

The final rule revises the definition of “family of 

materials” in 40 CFR 63.11502(a) by removing the definition that 

was incorporated by reference to the Miscellaneous Organic 

Chemical Manufacturing NESHAP (MON) and replacing it with a 

definition in 40 CFR 63.11502(b) specific to the CMAS rule. The 

definition clarifies that the family of materials concept 

applies only to those products whose production involves 

emission of the same Table 1 HAP.

B. Title V Permitting Requirements
***E.O. 12866 Review-Draft-Do Not Cite, Quote or Release During Review***

Page 17 of 113

The revised final rule requires synthetic area sources that 

installed a federally-enforceable control device on at least one 

affected CMPU to obtain a title V permit. The final rule lifts 

the stay on the title V permitting requirement (76 FR 13514, 

March 14, 2011) and requires such sources to submit their title 

V permit application by [INSERT DATE 12 MONTHS AFTER PUBLICATION 

OF THE FINAL RULE IN FEDERAL REGISTER] or on such earlier date 

as the title V permitting authority requires.

C. Requirements When Other Rules Overlap with the Final Rule

The revised final rule requires that facilities comply with 

the most stringent requirements when there are overlapping 

provisions in the CMAS rule and other NESHAP. Sources are 

required to determine which of the overlapping requirements 

applicable to the source are more stringent.

D. Requirement to Conduct Direct and Proximal Leak Inspections

The revised final rule removes the requirement in 40 CFR 

63.11495(a)(3) that facilities conduct a “direct and proximal 

(thorough)” leak inspection, and instead requires that 

facilities conduct quarterly sensory inspections of all 

equipment and process vessels, provided that these methods are 

capable of detecting leaks within the CMPU (i.e., the inspector 

is within sufficient proximity to the equipment that leaky 

equipment can be detected by sight, sound or smell). The revised 
***E.O. 12866 Review-Draft-Do Not Cite, Quote or Release During Review***

Page 18 of 113

final rule also allows affected facilities to conduct leak 

inspections of equipment in VOC service instead of in organic 

HAP service, provided that leaks can be detected while in VOC 

service. A CMPU that contains metal HAP as particulate must 

conduct leak inspections while the equipment is in metal HAP 

service.

E. Requirement for Covers or Lids on Process Vessels

The final rule requires in 40 CFR 63.11495(a)(1) that a 

cover or lid must be in place and closed at all times when a 

process vessel is in organic HAP service or in metal HAP 

service, except when access is required during manual operations 

such as material addition, removal, inspection, sampling and 

cleaning. Process vessels containing metal HAP that are in a 

liquid solution or other form that will not result in 

particulate emissions of metal HAP (e.g., metal HAP that is in 

ingot, paste, slurry or moist pellet form or other form) are not

subject to this requirement.

The definitions of “in organic HAP service” and “in metal 

HAP service” in 40 CFR 63.11502(b) have been revised to state 

that a process vessel is no longer considered to be in organic 

HAP service or in metal HAP service once it has been emptied to 

the extent practicable and any cleaning has been completed.
***E.O. 12866 Review-Draft-Do Not Cite, Quote or Release During Review***

Page 19 of 113

F. Requirement to Conduct Leak Inspections When Equipment is in 

HAP Service

The final rule requires in 40 CFR 63.11495(a)(3) that leak 

inspections be conducted while the subject CMPU is operating in 

organic HAP service or in metal HAP service. This provision also 

allows CMPU that do not contain metal HAP as particulate to 

conduct leak inspections when the subject CMPU is in VOC 

service, provided that leaks can be detected while in VOC 

service. A CMPU that contains metal HAP as particulate must 

conduct leak inspections while the equipment is in metal HAP 

service.

G. Requirements During Periods of Startup, Shutdown and 

Malfunction

The EPA is adding to the final rule an affirmative defense 

to civil penalties for violations of emission standards that are 

caused by malfunctions. During the comment period of the October 

6, 2008, proposed rule (“2008 proposal”), the United States 

Court of Appeals for the District of Columbia Circuit vacated 

two provisions in the EPA’s CAA section 112 regulations 

governing the emissions of HAP during periods of startup, 

shutdown and malfunction (SSM). Sierra Club v. EPA, 551 F.3d 

1019 (D.C. Cir. 2008), cert. denied, 130 S. Ct. 1735 (U.S. 

2010). Specifically, the Court vacated the SSM exemption 
***E.O. 12866 Review-Draft-Do Not Cite, Quote or Release During Review***

Page 20 of 113

contained in 40 CFR 63.6(f)(1) and 40 CFR 63.6(h)(1), that are 

part of a regulation, commonly referred to as the “General 

Provisions Rule,” that the EPA promulgated under section 112 of 

the CAA. When incorporated into CAA section 112(d) regulations 

for specific source categories, the exemption in these two 

provisions exempts sources from the requirement to comply with 

otherwise applicable CAA section 112(d) emission standards 

during periods of SSM.

The 2008 proposal contained references to the vacated 

provisions. Because the provisions were vacated, we removed the 

references in the 2009 final rule, and, consistent with Sierra 

Club v. EPA, established standards that applied at all times. In 

the vacated provisions’ place, we included alternative standards 

for startup and shutdown periods for continuous process vents. 

Table 3 to 40 CFR part 63, subpart VVVVVV. For batch process 

vents, we determined that startup and shutdown periods were 

already accounted for in the existing standard and we determined 

that the remaining equipment did not have periods of startup and 

shutdown. See 74 FR 56013, October 29, 2009. We declined to 

establish a different standard for malfunctions, as suggested by 

commenters. See 74 FR 56033, October 29, 2009.

Further, as explained in the preamble to the 2009 final 

rule (74 FR 56033, October 29, 2009), periods of startup, normal 
***E.O. 12866 Review-Draft-Do Not Cite, Quote or Release During Review***

Page 21 of 113

operations and shutdown are all predictable and routine aspects 

of a source’s operations. However, by contrast, malfunction is 

defined as a “sudden, infrequent, and not reasonably preventable 

failure of air pollution control and monitoring equipment, 

process equipment or a process to operate in a normal or usual 

manner * * *” (40 CFR 63.2). The EPA has determined that CAA 

section 112 does not require that emissions that occur during 

periods of malfunction be factored into development of CAA 

section 112 standards. There is nothing in section 112 that 

directs the agency to consider malfunctions in determining the 

level “achieved” by the best performing or best controlled 

sources when setting emission standards. Moreover, while the EPA 

accounts for variability in setting emissions standards 

consistent with the section 112 case law, nothing in that case 

law requires the agency to consider malfunctions as part of that 

analysis. Section 112 uses the concept of “best controlled” and 

“best performing” unit in defining the level of stringency that 

section 112 performance standards must meet. Applying the 

concept of “best controlled” or “best performing” to a unit that 

is malfunctioning presents significant difficulties, as 

malfunctions are sudden and unexpected events. Similarly, 

although standards for area sources are not required to be set 

based on “best performers,” we believe that what is "generally 
***E.O. 12866 Review-Draft-Do Not Cite, Quote or Release During Review***

Page 22 of 113

available" should not be based on periods in which there is a 

“failure to operate.”

Further, accounting for malfunctions would be difficult, if 

not impossible, given the myriad different types of malfunctions 

that can occur across all sources in the categories and given 

the difficulties associated with predicting or accounting for 

the frequency, degree and duration of various malfunctions that 

might occur. As such, the performance of units that are 

malfunctioning is not “reasonably” foreseeable. See, e.g., 

Sierra Club v. EPA, 167 F. 3d 658, 662 (D.C. Cir. 1999) (the EPA 

typically has wide latitude in determining the extent of datagathering 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 
***E.O. 12866 Review-Draft-Do Not Cite, Quote or Release During Review***

Page 23 of 113

regulation.”). In addition, the goal of a best controlled or 

best performing source is to operate in such a way as to avoid 

malfunctions of the source and accounting for malfunctions could 

lead to standards that are significantly less stringent than 

levels that are achieved by a well-performing non-malfunctioning 

source. The EPA’s approach to malfunctions is consistent with 

section 112 and is a reasonable interpretation of the statute.

In the event that a source fails to comply with the 

applicable CAA section 112(d) standards as a result of a 

malfunction event, the EPA would determine an appropriate 

response based on, among other things, the good faith efforts of 

the source to minimize emissions during malfunction periods, 

including preventative and corrective actions, as well as root 

cause analyses to ascertain and rectify excess emissions. The 

EPA would also consider whether the source's failure to comply 

with the CAA section 112(d) standard was, in fact, “sudden, 

infrequent, not reasonably preventable” and was not instead 

“caused in part by poor maintenance or careless operation.” 40 

CFR 63.2 (definition of malfunction).

Finally, the EPA recognizes that even equipment that is 

properly designed and maintained can sometimes fail, and that 

such failure can sometimes cause a violation of the relevant 

emission standard. (See, e.g., State Implementation Plans: 
***E.O. 12866 Review-Draft-Do Not Cite, Quote or Release During Review***

Page 24 of 113

Policy Regarding Excessive Emissions During Malfunctions, 

Startup, and Shutdown (September 20, 1999); Policy on Excess 

Emissions During Startup, Shutdown, Maintenance, and 

Malfunctions (February 15, 1983)).

The EPA is therefore adding to the final rule an 

affirmative defense to civil penalties for violations of 

emission standards that are caused by malfunctions, consistent 

with other recent actions by the EPA (e.g., the NESHAP for Group 

I Polymers and Resins and the NESHAP for Pharmaceuticals 

Production. 76 FR 22566 (April 21, 2011)). See 40 CFR 63.11502 

(defining “affirmative defense” to mean, in the context of an 

enforcement proceeding, a response or defense put forward by a 

defendant, regarding which the defendant has the burden of 

proof, and the merits of which are independently and objectively 

evaluated in a judicial or administrative proceeding). We also 

have added other regulatory provisions to specify the elements 

that are necessary to establish this affirmative defense; the 

source must prove by a preponderance of the evidence that it has 

met all of the elements set forth in 40 CFR 63.11501(e). See 40 

CFR 22.24. The criteria ensure that the affirmative defense is 

available only where the event that causes a violation of the 

emission standard meets the narrow definition of malfunction in 

40 CFR 63.2 (sudden, infrequent, not reasonable preventable and 
***E.O. 12866 Review-Draft-Do Not Cite, Quote or Release During Review***

Page 25 of 113

not caused by poor maintenance and or careless operation). For 

example, to successfully assert the affirmative defense, the 

source must prove by a preponderance of the evidence that the 

violations “[w]ere caused by a sudden, infrequent, and 

unavoidable failure of air pollution control and monitoring 

equipment, process equipment, or a process to operate in a 

normal or usual manner....” The criteria also are designed to 

ensure that steps are taken to correct the malfunction, to 

minimize emissions in accordance with CAA section 63.11501(e), 

and to prevent future malfunctions. For example, the source must 

prove by a preponderance of the evidence that “[r]epairs were 

made as expeditiously as possible when a violation occurred...” 

and that “[a]ll possible steps were taken to minimize the impact 

of the violation on ambient air quality, the environment and 

human health....” In any judicial or administrative proceeding, 

the Administrator may challenge the assertion of the affirmative 

defense, and, if the respondent has not met its burden of 

proving all of the requirements in the affirmative defense, 

appropriate penalties may be assessed in accordance with section 

113 of the CAA (see also 40 CFR 22.77).

The EPA included an affirmative defense in this final rule 

in an attempt to balance a tension, inherent in many types of 

air regulation, to ensure adequate compliance while 
***E.O. 12866 Review-Draft-Do Not Cite, Quote or Release During Review***

Page 26 of 113

simultaneously recognizing that despite the most diligent of 

efforts, emission limits may be violated under circumstances 

beyond the control of the source. The EPA must establish 

emission standards that “limit the quantity, rate, or 

concentration of emissions of air pollutants on a continuous 

basis.” 42 U.S.C. 7602(k) (defining “emission limitation and 

emission standard”). See, generally, Sierra Club v. EPA, 551 

F.3d 1019, 1021 (D.C. Cir. 2008). Thus, the EPA is required to 

ensure that section 112 emissions limitations are continuous. 

The affirmative defense for malfunction events meets this 

requirement by ensuring that even where there is a malfunction, 

the emission limitation is still enforceable through injunctive 

relief. See generally, Luminant Generation Co. v EPA, 2012 U.S. 

App. LEXIS 15722 (5th Cir. 2012) (upholding EPA’s approval of 

affirmative defense provisions in a CAA State Implementation 

Plan). While “continuous” limitations, on the one hand, are 

required, there is also case law indicating that, in many 

situations, it is appropriate for the EPA to account for the 

practical realities of technology. For example, in Essex 

Chemical v. Ruckelshaus, 486 F.2d 427, 433 (D.C. Cir. 1973), the 

D.C. Circuit acknowledged that, in setting standards under CAA 

section 111, “variant provisions” such as provisions allowing 

for upsets during startup, shutdown and equipment malfunction 
***E.O. 12866 Review-Draft-Do Not Cite, Quote or Release During Review***

Page 27 of 113

“appear necessary to preserve the reasonableness of the 

standards as a whole and that the record does not support the 

‘never to be exceeded’ standard currently in force.” See also, 

Portland Cement Association v. Ruckelshaus, 486 F.2d 375 (D.C. 

Cir. 1973). Though intervening case law such as Sierra Club v. 

EPA and the CAA 1977 amendments call into question the relevance 

of these cases today, they support the EPA’s view that a system 

that incorporates some level of flexibility is reasonable. The 

affirmative defense simply provides for a defense to civil 

penalties for violations that are proven to be beyond the 

control of the source. By incorporating an affirmative defense, 

the EPA has formalized its approach to upset events. In a Clean 

Water Act setting, the Ninth Circuit required this type of 

formalized approach when regulating “upsets beyond the control 

of the permit holder.” Marathon Oil Co. v. EPA, 564 F.2d 1253, 

1272-73 (9th Cir. 1977). See also, Mont. Sulphur & Chem. Co. v. 

EPA, 2012 U.S. App. LEXIS 1056 (Jan 19, 2012) (rejecting 

industry argument that reliance on the affirmative defense was 

not adequate). But see, Weyerhaeuser Co. v. Costle, 590 F.2d 

1011, 1057-58 (D.C. Cir. 1978) (holding that an informal 

approach is adequate). The affirmative defense provisions give 

the EPA the flexibility to both ensure that its emission 

limitations are “continuous” as required by 42 U.S.C. 7602(k), 
***E.O. 12866 Review-Draft-Do Not Cite, Quote or Release During Review***

Page 28 of 113

and account for unplanned upsets and thus support the 

reasonableness of the standard as a whole.

In addition to the affirmative defense provisions described 

above, we are also making several changes throughout the rule 

and in Table 9 (the table that specifies applicability of 

General Provisions to subpart VVVVVV of 40 CFR part 63) to 

specify applicable requirements during periods of startup and 

shutdown and periods of malfunction. For example, we are adding 

new paragraphs in 40 CFR 63.11501(c)(1)(vii) and (viii) that 

would require records of the occurrence and duration of 

malfunctions, as well as records of actions taken to minimize 

emissions during these periods and to fix malfunctioning 

equipment. We are also adding a paragraph in 40 CFR 

63.11501(d)(8) that would require reporting of information 

related to each malfunction. Table 9 in the final rule states 

that 63.6(e)(1)(i) does not apply to subpart VVVVVV. We are also 

adding a new paragraph in 40 CFR 63.11495(d) that specifies the 

general duty to minimize emissions applies at all times. In 

addition to the changes in the text of the rule, we are revising 

the entries for 40 CFR 63.6(e)(1)(i), 63.10(b)(2) and 

63.10(d)(5) to reference the new paragraphs in 40 CFR 

63.11495(d), 63.11501(c) and 63.11501(d). Finally, we are 

revising Table 9 to state that the performance testing 
***E.O. 12866 Review-Draft-Do Not Cite, Quote or Release During Review***

Page 29 of 113

requirements in 40 CFR 63.7(e)(1) do not apply. The comments to 

Table 9 for that provision identify the location of the 

applicable performance testing requirements for sources subject 

to the CMAS rule.

H. Requirements for Metal HAP Process Vents

The revised final rule defines a “metal HAP process vent” 

to include only those streams which contain at least 50 parts 

per million by volume (ppmv) metal HAP. Process vents from CMPU 

that only contain metal HAP in a liquid solution or other form 

that will not result in particulate emissions of metal HAP 

(e.g., metal HAP that is in ingot, paste, slurry or moist pellet 

form or other form) are not required to comply with the metal 

HAP process vent requirements.

I. Extension of the Compliance Date

The EPA is extending the October 29, 2012, compliance date 

for existing sources by 90 days. Existing sources must now 

comply with the final rule by January 27, 2013.

J. Technical Corrections

The final rule provides several technical corrections. 

These amendments are being finalized to correct inaccuracies and 

oversights that were previously promulgated. These changes are 

described in Table 2 of this preamble. Several of these issues 
***E.O. 12866 Review-Draft-Do Not Cite, Quote or Release During Review***

Page 30 of 113

were identified through the public comments and the EPA 

identified others.

Table 2. Miscellaneous Technical Corrections to 40 CFR Part 63, 

Subpart VVVVVV

Section of subpart 

VVVVVV

Description of correction

40 CFR 

63.11494(a)(3)

We are finalizing several changes to 

this paragraph. First, we are 

clarifying that the 0.1-percent and 

1.0-percent concentration thresholds 

are on a mass basis of the individual 

Table 1 HAP. Second, we are clarifying 

that all Table 1 HAP, except for 

quinoline, manganese, and trivalent 

chromium compounds, are considered 

carcinogenic, probably carcinogenic or 

possibly carcinogenic. Therefore, the 

concentration threshold of 1.0 weight 

percent applies only to quinoline, 

manganese, and trivalent chromium 

compounds, and the threshold of 0.1 

weight percent applies to all other 

Table 1 HAP. Third, we are clarifying 

applicability of CMPU that generate a 

Table 1 HAP byproduct. If Table 1 HAP 

are generated as a byproduct, the 

changes clarify that the CMPU is 

subject to the rule if the 

concentration of the Table 1 HAP in any 

liquid stream in the CMPU exceeds the 

same thresholds that apply to 

feedstocks. Specifically, if quinoline 

is generated as a byproduct, then the 

CMPU is subject if the quinoline 

concentration in any liquid stream in 

the CMPU exceeds 1.0 percent by weight. 

Similarly, if hydrazine or any other 

organic Table 1 HAP is generated as a 

byproduct, then the process is subject 

if the individual concentration of 

these compounds in any liquid stream is 
***E.O. 12866 Review-Draft-Do Not Cite, Quote or Release During Review***

Page 31 of 113

greater than 0.1 percent by weight. In 

addition, we are clarifying that if 

hydrazine or any other organic Table 1 

HAP is generated as a byproduct, then 

the process is subject if the 

individual concentration of these 

compounds in any batch process vent or 

continuous process vent is greater than 

0.1 percent by weight. Finally, we are 

consolidating paragraphs (a)(1) and (3) 

to eliminate redundancy. 

40 CFR 

63.11494(c)(1)(vii)

We are adding a new paragraph that 

lists lead oxide production at lead 

acid battery manufacturing facilities 

in those operations for which this 

subpart does not apply. These sources 

are covered by 40 CFR part 63, subpart 

PPPPPP – NESHAP for Lead Acid Battery 

Manufacturing Area Sources. 

40 CFR 63.11494(d) We are clarifying that a CMPU using 

only Table 1 metal HAP is not subject 

to any requirements for wastewater 

systems or heat exchange systems. Only 

organic HAP are subject to wastewater 

and heat exchange system requirements.

40 CFR 

63.11495(a)(3)

We are splitting this section into an 

introductory section with five 

subsections. One sentence that contains 

two concepts has also been split into 

two separate sentences. The 

requirements, however, have not 

changed.

40 CFR 63.11496(c) We are adding an example of emission 

contributions to subtract when 

determining the TRE index value of 

individual streams before they are 

combined.

40 CFR 63.11496(d) We are revising the title of this 

paragraph and clarifying that the mass 

emission rate of halogen atoms must be 

calculated in accordance with 

§63.115(d)(2)(v), or alternatively you 

may designate an emission stream as 
***E.O. 12866 Review-Draft-Do Not Cite, Quote or Release During Review***

Page 32 of 113

halogenated.

40 CFR 63.11496(e) We are adding a new paragraph that 

clarifies that CEMS requirements and 

data reduction requirements for CEMS 

specified in §63.2450(j) apply.

40 CFR 

63.11496(f)(3)(i)(C)

We are editing this paragraph to add 

the acronym “CMS.”

40 CFR 

63.11496(f)(3)(ii)

We are editing the first sentence in 

this paragraph to remove the 

unnecessary word “report.”

40 CFR 

63.11496(f)(3)(ii)

We are clarifying that if a source 

elects to conduct an engineering 

assessment to demonstrate initial 

compliance with the standards for metal 

HAP process vents, then the design 

evaluation must be conducted at 

representative operating conditions for 

the CMPU.

40 CFR 

63.11494(g)(2)

We are clarifying that you may elect to 

conduct a design evaluation instead of 

a performance test to determine initial 

compliance with an outlet concentration 

emission limit.

40 CFR 

63.11494(g)(4)(i)

We are clarifying that you may measure 

caustic strength of the scrubber 

effluent for any halogen scrubber 

within a CMPU subject to this rule.

40 CFR 

63.11494(g)(5)

We are clarifying that 40 CFR 

63.996(c)(2)(ii) and 

63.998(c)(1)(ii)(E) do not apply for 

the purposes of this subpart.

40 CFR 

63.11494(g)(8)

We are adding a new paragraph that 

clarifies when the initial 

demonstration requirements for process 

condensers applies.

40 CFR 63.11497 We are adding a paragraph to this 

section clarifying that the halogenated 

vent stream provisions also apply to 

affected storage tanks.

40 CFR 

63.11498(a)(2), 

63.11502(b), and 

We are adding a definition of 

“hazardous waste treatment” in 40 CFR 

63.11502(b) to mean treatment in either
***E.O. 12866 Review-Draft-Do Not Cite, Quote or Release During Review***

Page 33 of 113

Table 6 (1) a RCRA-permitted incinerator, 

process heater, boiler, or underground 

injection well, or (2) an incinerator, 

process heater, or boiler complying 

with 40 CFR part 63, subpart EEE. We 

are also adding corresponding changes 

to Table 6 to subpart VVVVVV. 

Specifically, for each wastewater 

stream, Item 1.a would require either 

wastewater treatment or hazardous waste 

treatment. In addition, Item 2.b would 

be edited to use the new term 

“hazardous waste treatment” and to 

allow for hard piping of wastewater 

streams to a point of transfer to 

onsite hazardous waste treatment. The 

changes to Item 1.a also make it clear 

that the treatment conducted to meet 

Item 2.b would satisfy the requirements 

of Item 1.a.

40 CFR 63.11500(a) 

and Table 5

We are adding a paragraph to 40 CFR 

63.11500(a) to clarify that that 

offsite reloading and cleaning 

facilities that are subject to 40 CFR 

1253(f) and comply with the monitoring, 

recordkeeping, and reporting 

requirements in any other subpart of 

part 63 are considered to be in 

compliance with the monitoring, 

recordkeeping, and reporting 

requirements of 40 CFR 

63.1253(f)(7)(ii) or (iii). We are also 

adding corresponding changes to Table 5 

to subpart VVVVVV to clarify which 

requirements apply to owners or 

operators of offsite cleaning or 

reloading facilities. 

40 CFR 63.11501(b) We are revising this paragraph to allow 

sources to submit their notice of 

compliance status (NOCS) reports no 

later than 60 days after the applicable 

compliance date.

40 CFR 

63.11501(c)(4)(i)

We are replacing the incorrect word 

“dimension” with the correct word 
***E.O. 12866 Review-Draft-Do Not Cite, Quote or Release During Review***

Page 34 of 113

“dimensions.”

40 CFR 63.11502(a) We are inserting references to the 

definitions of the terms “batch 

operation,” “continuous operation,” and 

“isolated intermediate” in 40 CFR 

63.2550 of the MON. We are also 

inserting a reference to the definition 

of “control device” in 40 CFR 63.111 of 

the Hazardous Organic Chemical 

Manufacturing NESHAP (HON).

40 CFR 63.11502(b) We are modifying the definition of 

“batch process vent” to clarify that 

vents from batch operations are 

considered to be batch process vents.

40 CFR 63.11502(b) We are adding a definition for the term 

“engineering assessment” consistent 

with 40 CFR 63.1257(d)(2)(ii), but 

which has been revised to include the 

appropriate references for this rule.

40 CFR 63.11502(b) We are adding a definition for the term 

“point of determination” consistent 

with 40 CFR 63.111 of the HON, but 

which has been revised to include the 

appropriate references for this rule.

40 CFR 63.11502(b) We are modifying the definition of 

“product” to remove “isolated 

intermediates” from the list of 

materials that are not considered 

products.

40 CFR 63.11502(b) We are adding a definition for the term 

“uncontrolled emissions” that reads: 

“Uncontrolled emissions means organic 

HAP or metal HAP process vent 

emissions, as applicable, at the outlet 

of the last recovery device, if any, 

and prior to any control device. In the 

absence of both recovery devices and 

control devices, uncontrolled emissions 

are the emissions discharged to the 

atmosphere.”

Table 3 We are replacing the reference to 40 

CFR 63.982(c)(2) in item 1.a with the 

correct reference to 40 CFR 63.982(c).
***E.O. 12866 Review-Draft-Do Not Cite, Quote or Release During Review***

Page 35 of 113

Table 3 We are adding an item to this table for 

continuous process vents with a TRE 

>1.0 but ≤4.0. This item clarifies that 

these continuous process vents are 

required to comply with 40 CFR 

63.982(e) if a recovery device is used 

to maintain a TRE >1.0 but ≤4.0.

Table 5 We are replacing the reference to 40 

CFR 63.982(c)(1) in item 1.b with the 

correct reference to 40 CFR 63.982(c). 

We are also removing the requirement in 

item 1.b.ii to comply with the 

inspection requirements in 40 CFR 

63.11495 for closed vent systems.

Table 8 We are revising item 1.a.i to clarify 

that the reference to monthly 

monitoring for the first 6 months in 40 

CFR 63.104(b)(1) does not apply.

Table 9 We are revising the entry to 40 CFR 

63.8(c)(4) to state that this paragraph 

does apply, but only for CEMS. The 

requirements for CPMS are contained in 

40 CFR part 63, subpart SS, and 

requirements for COMS do not apply.

Table 9 We are revising the entry for 40 CFR 

63.8(g)(5) to clarify that the data 

reduction requirements for CEMS are 

specified in 40 CFR 63.2450(j) and that 

CPMS requirements are specified in 40 

CFR part 63, subpart SS.

Table 9 We are adding an entry for 40 CFR 

63.9(i) to state that this paragraph 

applies to subpart VVVVVV.

IV. Summary of Major Changes Since Proposal

The EPA received 19 public comment letters on the proposed 

revisions to the CMAS final rule. In addition, the EPA received 

six comments and sets of materials from industry representatives 
***E.O. 12866 Review-Draft-Do Not Cite, Quote or Release During Review***

Page 36 of 113

following the close of the comment period. After consideration 

of these comments, the EPA is making several changes to the 

final rule. Following are the major changes to the standards 

since the proposal. The rationale for these and other 

significant changes can be found in this section, in section V 

of this preamble, and in the National Emission Standards for 

Hazardous Air Pollutant Emissions for Chemical Manufacturing 

Area Source - Reconsideration: Summary of Public Comments and 

Responses, in the CMAS rule docket (EPA–HQ–OAR–2008–0334).

A. Title V Permitting Requirements

In the proposed rule revisions, we proposed to narrow the 

applicability of title V permitting requirements for certain 

synthetic area sources subject to the final rule. Specifically, 

under the proposal, only those sources that installed a 

federally-enforceable control device on an affected CMPU in 

order to become an area source would be subject to the 

requirement to obtain a title V permit. The EPA received public 

comments on this issue from industry representatives and two 

states during the public comment period. Public commenters were 

generally opposed to the EPA requiring any affected source to 

obtain a title V permit. The commenters were concerned that the 

burden of obtaining a title V permit was not warranted given the 

level of public participation already required by, and other 
***E.O. 12866 Review-Draft-Do Not Cite, Quote or Release During Review***

Page 37 of 113

requirements associated with, a Federally Enforceable State 

Operating Permit (FESOP) that sources with a federallyenforceable control device must already obtain. However, 

commenters stated that if the EPA should choose to require 

certain sources to obtain a title V permit, then they supported 

limiting the requirement to apply to only those sources that 

installed a federally-enforceable control device on an affected 

CMPU.

In the final rule revisions, we have made slight revisions 

to the proposed changes to the title V permit requirement to 

further clarify the applicability of title V to CMAS sources. We 

have also clarified that the installation of a federallyenforceable air pollution control device on an affected CMPU 

triggers the title V permit requirement for any synthetic area 

source subject to the final rule if the air pollution controls 

installed on the affected CMPU are required to maintain the 

source’s emissions at area source levels. We further note that 

section 502(a) of the CAA requires all area sources subject to 

CAA section 112 standards to obtain a title V permit unless the 

EPA makes a finding that title V is impracticable, infeasible or 

unnecessarily burdensome. The EPA continues to believe that the 

additional protections provided by a title V permit are 

warranted for CMAS synthetic area sources that installed 
***E.O. 12866 Review-Draft-Do Not Cite, Quote or Release During Review***

Page 38 of 113

controls because they are generally larger, more sophisticated

and have higher uncontrolled HAP emissions than natural area 

sources and synthetic area sources that took operational limits.

See 74 FR 56013-56014, 56034-56039 (October 29, 2009); 77 FR 

4525-4527 (January 30, 2012). In addition, title V requires a 

facility to include all applicable federal requirements that 

apply to CMAS affected units (such as other NESHAP or new source 

performance standards), not just the requirement that triggers 

applicability of title V, in the title V permit such that the 

public will be able to assess a source’s compliance with all 

federal requirements that apply to CMAS affected units by 

reviewing the title V permit. See 40 CFR 70.3(c)(2) (requiring 

facilities to include all applicable requirements to emissions 

units that cause the facility to be subject to title V). The 

public is provided access, in most cases online access, to 

compliance demonstration information submitted to state 

permitting authorities and, unlike FESOP programs, petitions to 

object to title V permits may be brought before the EPA. See 40 

CFR 70.4(b)(3)(viii) (requiring state title V programs to 

provide access to title V related information, including 

compliance related information). The EPA also continues to 

maintain that “while there is some burden on the affected 

facilities, we think that the burden is not significant because 
***E.O. 12866 Review-Draft-Do Not Cite, Quote or Release During Review***

Page 39 of 113

these facilities are generally larger and more sophisticated 

than the natural area sources and sources that took operational 

limits to become area sources.” 74 FR 56014.

B. Requirement for Covers or Lids on Process Vessels

In the proposed rule revisions, we requested comment on 

whether a change was needed for the definition of “in metal HAP 

service” to make it consistent with the proposed revisions to 

the definition of “in organic HAP service.” Public commenters 

were generally in favor of these proposed revisions.

In the final rule revisions, we have revised the definition 

of “in metal HAP service” to state that, consistent with the 

revised definition of “in organic HAP service,” a process vessel 

is no longer in metal HAP service after the vessel has been 

emptied to the extent practicable (i.e., a vessel with liquid 

left on process vessel walls or as bottom clingage, but not in 

pools, due to floor irregularity, is considered completely 

empty) and any cleaning has been completed. We have also revised 

the requirement that a cover or lid must be in place and closed 

at all times when a process vessel is in organic HAP service or 

in metal HAP service to not apply for CMPU using only metal HAP 

that are in a liquid solution or other form that the source 

determines will not result in particulate emissions of metal HAP 
***E.O. 12866 Review-Draft-Do Not Cite, Quote or Release During Review***

Page 40 of 113

(e.g., metal HAP that is in ingot, paste, slurry or moist pellet 

form or other form).

C. Requirement to Conduct Leak Inspections When Equipment is in 

HAP Service

We solicited comment on whether to permit leak inspections 

to be conducted when equipment was in VOC service, rather than 

just when it was in organic HAP service or in metal HAP service. 

Public commenters were generally in favor of allowing leak 

inspections to be conducted while equipment was in VOC service.

In the final rule revisions, we are allowing facilities to 

conduct leak inspections of equipment in VOC service, provided 

that leaks can be detected while in VOC service. A CMPU that 

contains metal HAP as particulate must conduct leak inspections 

while the equipment is in metal HAP service. We have also added 

a corresponding definition of “in VOC service” to mean that a 

process vessel or piece of equipment either contains or contacts 

a fluid that contains VOC.

D. Requirements for Metal HAP Process Vents

In the proposed rule revisions, we solicited comment on 

whether the definition of “metal HAP process vent” was 

applicable to all types of equipment from which metal HAP are 

emitted. The original rule defined a metal HAP process vent as 

“the point of discharge to the atmosphere (or inlet to a control 
***E.O. 12866 Review-Draft-Do Not Cite, Quote or Release During Review***

Page 41 of 113

device, if any) of a metal HAP-containing gas stream from any 

CMPU at an affected source,” regardless of the concentration of 

metal HAP in the stream. Public commenters were generally in 

favor of defining a metal HAP process vent as containing at 

least 50 ppmv metal HAP, consistent with the MON.

In the final rule revisions, we have revised the definition 

of “metal HAP process vent” to include only those streams which 

contain at least 50 ppmv metal HAP. We have also revised the 

final rule to state that process vents from CMPU that only 

contain metal HAP in a liquid solution or other form that will 

not result in particulate emissions of metal HAP (e.g., metal 

HAP that is in ingot, paste, slurry or moist pellet form or 

other form) are not required to comply with the metal HAP 

process vent requirements.

E. Extension of the Compliance Date

In the proposed rule revisions, we did not propose to 

revise the compliance date for the final rule, which was October 

29, 2012. Under CAA section 112, the compliance date may be no 

more than 3 years after the effective date of the final rule, 

which for the CMAS rule was October 29, 2009. Public commenters 

were concerned that due to the expected short period of time 

between the promulgation of the final rule amendments and the 

existing October 29, 2012, compliance date, there would not be 
***E.O. 12866 Review-Draft-Do Not Cite, Quote or Release During Review***

Page 42 of 113

sufficient time for facilities to review the revised rule 

requirements and certify compliance by the compliance date. The 

commenters were particularly concerned with determining 

compliance because the proposed changes to the family of 

materials concept may affect applicability of the final 

standards to CMPU located at sources subject to the CMAS rule.

In the final rule, the EPA is extending the compliance date 

for existing sources by 90 days to January 27, 2013. We agree 

that existing sources should have an additional 90 days to 

evaluate applicability in light of the amendments to the rule 

since publication of the final reconsideration action is 

occurring so close to the existing source compliance date. We 

think this short extension will provide sources the necessary 

time to determine applicability and take the actions necessary 

to comply with the final rule. The EPA is not revising the 

compliance date for new sources.

F. Technical Corrections

In the proposed rule revisions, we proposed in 40 CFR 

63.11494(a)(3) a technical correction that the concentration 

thresholds for applicability of Table 1 HAP present in 

feedstocks or any liquid streams (process or waste) were to be 

determined on a collective Table 1 HAP basis. In addition, we 

also proposed to specify that a CMPU is subject to the CMAS rule 
***E.O. 12866 Review-Draft-Do Not Cite, Quote or Release During Review***

Page 43 of 113

if the collective concentration of Table 1 HAP exceeded 50 ppmv 

in any process vent stream. Public commenters were concerned 

that by revising the rule to determine applicability based on 

collective Table 1 HAP concentration and a 50 ppmv threshold, 

the applicability of the rule would be greatly expanded beyond 

its original scope.

In the final rule revisions, we have revised this language 

to clarify that the concentration thresholds for applicability 

of Table 1 HAP are to be determined on an individual Table 1 HAP 

concentration, rather than a collective concentration. In 

addition, we have also clarified that the 0.1 percent by weight 

threshold for Table 1 HAP present in liquid streams (process or 

waste) also applies to Table 1 HAP present in any continuous 

process or batch process vent, rather than the proposed 50 ppmv 

threshold.

We are not finalizing this proposed change because we did 

not fully consider the implications of the proposed change. We 

included the proposed change in the technical corrections 

section of the proposed rule on the belief that it was a 

technical change, but, in fact, the change, if finalized, would 

have had significant consequences. The proposed change would 

have likely lead to a considerable expansion of the 

applicability of the rule. In addition, sources would no longer 
***E.O. 12866 Review-Draft-Do Not Cite, Quote or Release During Review***

Page 44 of 113

have been able to determine applicability by reviewing their 

Material Safety Data Sheets (MSDS) as the 2009 final rule 

provides because the MSDS does not indicate the amount of 

emissions below the 0.1 percent threshold. This would mean that 

sources would have to go to considerable lengths at considerable 

cost in testing very low levels of HAP to even determine whether 

the final rule applies to their CMPUs, which is not what the EPA 

intended.

V. Summary of Comments and Responses 

This section contains a summary of major comments and 

responses and rationale for changes made to the proposed rule. 

The EPA received many comments covering numerous topics. The 

EPA’s responses to those comments can be found either in this 

preamble or in the National Emission Standards for Hazardous Air 

Pollutant Emissions for Chemical Manufacturing Area Source -

Reconsideration: Summary of Public Comments and Responses, in 

the CMAS rule docket (EPA–HQ–OAR–2008–0334).

A. Title V Permitting Requirements

Comment: Eight commenters objected to the requirement that 

certain synthetic area sources subject to the CMAS rule be 

required to obtain a title V permit. The commenters stated that 

the requirement would be overly burdensome and that it would 

impose significant additional costs on facilities while 
***E.O. 12866 Review-Draft-Do Not Cite, Quote or Release During Review***

Page 45 of 113

achieving no additional environmental benefit or gains in 

compliance.

Three of the commenters also stated that by requiring a 

title V permit, a facility’s flexibility and ability to respond 

rapidly to customer demand would be significantly reduced, as 

the facility will be required to apply for a permit modification 

every time they wanted to manufacture a new product, costing 

them both time and money and placing them at a competitive 

disadvantage. The commenters estimate that it will cost a 

facility $25,000-$100,000 to obtain a title V permit.

In contrast, one commenter stated that the cost of 

obtaining a title V permit instead of a synthetic area source 

permit in their area is comparable due to associated permit fees 

for synthetic area source permits and emission fees for title V 

permits.

Response: The EPA disagrees with the commenters that the 

requirement to obtain a title V permit is overly burdensome and 

we maintain that title V is appropriate for the sources that 

will be subject to title V pursuant to this final rule. In the 

preamble to the final rule, we determined that “requiring 

additional public involvement and compliance assurance 

requirements through title V is important to ensure that these 

sources are maintaining their emissions at the area source 
***E.O. 12866 Review-Draft-Do Not Cite, Quote or Release During Review***

Page 46 of 113

level, and, while there is some burden on the affected 

facilities, we think that the burden is not significant because 

these facilities are generally larger and more sophisticated 

than the natural area sources and sources that took operational 

limits to become area sources.” 74 FR 56014. The cost estimates 

provided by the commenters are very broad and the commenters do 

not provide any information to support the cost estimates that 

were provided; therefore, the EPA is unable to evaluate the 

validity of these estimates.

In addition, we do not agree with the commenters that every 

change in operations at a facility requires a modification of 

the title V permit. The EPA maintains that the requisite 

flexibility can be incorporated into title V permits, thereby 

negating the need to modify the permit each time a new product 

is manufactured. The commenters have not provided analysis of 

the title V permitting process that indicates state permitting 

authorities are not willing to provide the appropriate 

flexibility in title V permits. Nor have the commenters provided 

information or facts specific to chemical manufacturing area 

sources that would cause us to question our belief that the 

appropriate flexibility can be incorporated into title V 

permits. In addition, we are not aware of this issue being a 

problem for chemical manufacturing major sources subject to the 
***E.O. 12866 Review-Draft-Do Not Cite, Quote or Release During Review***

Page 47 of 113

HON or the MON, and those standards have been in place for many 

years.

Comment: Four commenters stated that the process for 

obtaining a synthetic area source permit and the amount of 

information contained in it are very similar to those of a title 

V permit. Three of the commenters detailed the steps involved in 

obtaining each type of permit, as well as the information 

contained in each. The commenters also stated that both 

processes provide opportunity for public comment on the draft 

permit and that the facilities may be required to certify 

compliance annually. One of the commenters also provided general 

information on FESOPs and synthetic area source permits issued 

in Illinois and Ohio. Another commenter also provided general 

information on FESOP and synthetic area source permits for 11 

states, including whether notice and comment is required and 

what additional oversight is conducted by the state. One 

commenter noted that FESOP programs must be approved through 

State Implementation Programs, which provide an opportunity for 

both the EPA and public comment. Another commenter stated that 

under the North Carolina Division of Air Quality’s air 

permitting program, synthetic area sources are already subject 

to annual inspections similar to what title V requires. The 

commenter also stated that sources that have add-on controls 
***E.O. 12866 Review-Draft-Do Not Cite, Quote or Release During Review***

Page 48 of 113

typically have lower emissions than sources that have taken 

operational limits to become synthetic area sources.

Response: While the commenters provided broad, general 

information on the requirements of FESOPs as compared to title V 

permits, none of them provided specific examples of these 

permits for the EPA to evaluate and compare to title V permits. 

Without this specific information from each state (as the 

requirements for a FESOP vary by state), the EPA cannot conclude 

that FESOPs provide the same level of information as that of a 

title V permit. In addition, unlike FESOP programs, petitions to 

object to title V permits may be brought before the EPA. As the 

requirements for public participation for a FESOP vary by state, 

the EPA cannot be assured that all citizens in all states would 

be afforded the same level of public participation that a title 

V permit would provide.

In addition, while state FESOP programs must be approved by 

the EPA, this does not mean that state FESOP programs require 

the same level of information, public participation, monitoring 

and compliance certification that are required with a title V 

permit. In addition, title V requires a facility to include all 

applicable federal requirements that apply to CMAS affected 

units, not just the requirement that triggers applicability of 

title V, in the title V permit such that the public will be able 
***E.O. 12866 Review-Draft-Do Not Cite, Quote or Release During Review***

Page 49 of 113

to assess a source’s compliance with all federal requirements 

that apply to CMAS affected units by reviewing the title V 

permit. The public is provided access to compliance 

demonstration information submitted to state permitting 

authorities and there is no indication in the comments that such 

information is available pursuant to state FESOP programs.

Furthermore, even though certain states, such as North 

Carolina, may require that a synthetic area source be subject to 

additional inspections, this requirement varies by state and 

only a title V permit would assure that these additional 

inspections are required for all CMAS synthetic area sources 

required to obtain a title V permit. Finally, we do not agree 

with the assertion that sources that install control devices 

necessarily have lower emissions than those that have taken 

operational limits to maintain area source status, as both types 

of synthetic area sources are subject to the same requirement to 

maintain emissions below 10 tpy of any single HAP or 25 tpy of 

any combination of HAP. It is the potential level of emissions 

from the synthetic area source absent controls or operational 

limits that we considered when comparing the two types of 

synthetic area sources. In the 2009 final rule and the 

reconsideration proposed rule revisions, we noted that one 

reason why we were not exempting synthetic area sources that 
***E.O. 12866 Review-Draft-Do Not Cite, Quote or Release During Review***

Page 50 of 113

installed controls from title V is because we believe the 

sources are “generally larger and more sophisticated” than 

natural area sources and the synthetic area sources that took 

operational limits. See 77 FR 4525; 74 FR 56014. We also stated 

that we believe the uncontrolled HAP emissions from synthetic 

area sources that installed controls are generally much higher 

than the natural area sources and synthetic area sources that 

took operational limits. Id. The commenters did not provide any 

information that causes us to question our conclusions. 

Comment: Four commenters stated that requiring synthetic 

area sources that installed control devices to obtain a title V 

permit would create a disincentive for facilities to maintain 

their synthetic area source status by either voluntarily 

reducing their emissions or installing add-on controls in lieu 

of taking production limits, which would have a negative impact 

on air quality.

Response: The EPA disagrees that requiring title V permits 

would discourage facilities from maintaining their synthetic 

area source status, as facilities would in most, if not all, 

cases be subject to existing NESHAP applicable to chemical 

manufacturing major sources if they did not maintain synthetic 

area source status. For example, these sources would likely be 

subject to the HON or the MON, both of which require more 
***E.O. 12866 Review-Draft-Do Not Cite, Quote or Release During Review***

Page 51 of 113

frequent inspections and more stringent control of emissions. 

The EPA believes that avoiding these additional requirements 

would still provide incentive for facilities to maintain their 

synthetic area source status. In addition, all major sources of 

HAP subject to NESHAP are required to obtain a title V permit so 

the sources would still be required to comply with title V.

Comment: One commenter stated that it is punitive to 

require title V permits for sources that have already made a 

capital investment to achieve area source status and avoid title 

V permits in the past. The commenter stated that the EPA is 

ignoring the environmental benefit associated with the 

installation of federally-enforceable control devices by 

focusing on the uncontrolled potential of these sources.

Response: Pursuant to section 502(a) of the CAA, all area 

sources subject to CAA section 112 standards are required to 

obtain a title V permit unless the EPA makes a finding that 

title V is impracticable, infeasible or unnecessarily 

burdensome. Thus, there is no basis to support the statement 

that title V is punitive in nature and the EPA disagrees that 

requiring title V permits for synthetic area sources that 

installed control devices is punitive. Furthermore, we are not 

ignoring the environmental benefit of controlling HAP emissions 

by requiring title V for certain CMAS sources.
***E.O. 12866 Review-Draft-Do Not Cite, Quote or Release During Review***

Page 52 of 113

In most, if not all, cases, synthetic area sources that 

installed controls would be subject to existing NESHAP 

applicable to major sources if they did not take synthetic area 

source limits and those standards are set at the maximum 

achievable control technology (MACT) level. Since MACT standards 

are technology based standards established based on the 

performance of the best performing source(s), it is likely the 

commenter would have had to achieve a comparable level of 

emissions reductions even if they had not taken the synthetic 

area source limit. While the EPA appreciates the environmental 

benefit attained by facilities that have installed these control 

devices to become area sources, we still believe that title V 

permitting is appropriate to, among other things, ensure: that 

synthetic area sources that installed controls are maintaining 

their emissions at the permitted level; that the public is able 

to review and evaluate the source’s permit and compliance; that 

there is adequate monitoring, recordkeeping and reporting; and 

that the source’s management is required to certify compliance 

with the CAA requirements applicable to the source.

B. Requirements When Other Rules Overlap With the Final Rule

Comment: One commenter stated that it is not always clear 

what the most stringent provisions are when looking at 

overlapping provisions. The commenter requested that the EPA 
***E.O. 12866 Review-Draft-Do Not Cite, Quote or Release During Review***

Page 53 of 113

revise the rule to require facilities to make their best 

determination of stringency and submit to the appropriate agency 

for review and comment. The commenter also requested that states 

should be allowed to make streamlined determinations on 

stringency on an overall program stringency basis rather than 

individual rule provisions of overlapping rules.

Response: The EPA disagrees with the commenter that it is 

necessary to revise the final rule to allow for facilities to 

submit their stringency determinations for review and comment to 

their permitting authority. As the requirements of this section 

are entirely optional, we do not believe it to be appropriate to 

place additional burden on the local permitting authorities to 

make the determination of what the most stringent provisions 

are. Instead, we believe that this responsibility should 

continue to be placed on the facility. For those sources that 

are unable to determine the more stringent requirements, we 

continue to believe that it is more appropriate to evaluate 

requests for clarification on a case-by-case basis.

In addition, we also believe that it would be inappropriate 

for us to make a determination of equivalency among the numerous 

state streamlined programs with the requirements of the CMAS 

rule. As noted in the preamble to the proposed rule revisions, 

“[w]e did not include language that defines the more stringent 
***E.O. 12866 Review-Draft-Do Not Cite, Quote or Release During Review***

Page 54 of 113

requirements, as found in other rules, due to the great variety 

in characteristics of CMAS processes and the wide variety of 

compliance options in both the CMAS rule and overlapping rules. 

This variety makes it difficult to develop language that would 

not inadvertently allow a CMAS facility to comply with 

requirements less stringent than those contained in 40 CFR part 

63, subpart VVVVVV, or less stringent than the required control 

level in an overlapping rule.” (77 FR 4528). For these reasons, 

we are not revising these provisions in the final rule.

C. Requirement to Conduct Direct and Proximal Leak Inspections

Comment: Four commenters supported the proposed revisions 

to remove the requirement to conduct “direct and proximal” leak 

inspections and stated that the proposed sight, sound or smell 

inspections are appropriate.

Response: The EPA has finalized the proposed revisions to 

the leak detection requirements.

D. Requirement for Covers or Lids on Process Vessels

Comment: Three commenters requested that the EPA clarify 

that for metal HAP precipitate, or metal HAP in solution, the 

requirement to install a cover or lid on process vessels in 

metal HAP service does not apply. The commenters cited the low 

potential for emissions from these low vapor pressure metal HAP 

solutions as rationale for not imposing this requirement on such 
***E.O. 12866 Review-Draft-Do Not Cite, Quote or Release During Review***

Page 55 of 113

units. One commenter estimated that without this change, their 

facility would have to invest over $1,000,000 in covers/lids for 

their clarifiers, which are used to gravity-separate solids from 

solution and have very low potential for emissions. One 

commenter cited 40 CFR part 63, subpart CCCCCCC as an example of 

an area source rule that does not require this for metal HAP in 

solution. The commenter also provided examples of regulatory 

text that could be used in the CMAS rule.

Response: The EPA agrees with the commenters that the 

requirement to install a cover or lid for process vessels in 

metal HAP service is unnecessary for metal HAP in solution. As 

there is very little or no potential for air emissions to occur 

from these solutions, the rule need not require the process 

vessel to be covered. As such, we have revised the final rule to 

state that process vessels that only contain metal HAP in a 

liquid solution or other form that will not result in 

particulate emissions of metal HAP (e.g., metal HAP that is in 

ingot, paste, slurry or moist pellet form or other form) are not 

required to comply with the cover/lid requirement.

E. Requirement to Conduct Leak Inspections When Equipment is in 

HAP Service

Comment: Three commenters suggested that leak inspections 

should be permitted to be conducted when equipment is in non-HAP 
***E.O. 12866 Review-Draft-Do Not Cite, Quote or Release During Review***

Page 56 of 113

(i.e., VOC) service. Two commenters cited the limited personnel 

available to conduct leak inspections and the limited time 

windows for when equipment is in HAP service and inspections may 

be conducted as rationale.

One commenter noted that there is little difference between 

detecting leaks for streams in VOC vs. HAP service, as many HAP 

and non-HAP solvents have similar vapor and odor thresholds and 

both can be detected adequately by sight, sound or smell. The 

commenter also stated that since the MON allows for sources to 

assume that equipment is in HAP service, then the CMAS rule 

should permit it as well.

Response: The EPA agrees with the commenters that 

conducting leak inspections when equipment is in VOC service is 

acceptable for the reasons described above, and has revised the 

final rule to reflect this option, provided that leaks can be 

detected while in VOC service. As it may be very difficult for 

some facilities to conduct their inspections while equipment is 

in HAP service due to the limited amount of time and/or 

personnel available, this alternative will provide facilities 

with flexibility in conducting inspections while maintaining the 

same level of emissions reductions. This option does not apply 

to CMPU that contain metal HAP as particulate. For those units, 
***E.O. 12866 Review-Draft-Do Not Cite, Quote or Release During Review***

Page 57 of 113

the inspections must be conducted while the unit is in metal HAP 

service.

F. Applicability of the Family of Materials Concept

Comment: Two commenters supported the proposed revisions to 

the definition of “family of materials.”

Response: The EPA has finalized the proposed revisions to 

this definition.

G. Requirements for Metal HAP Process Vents

Comment: Two commenters stated that the definition of metal 

HAP process vent should be revised to better reflect GACT for 

these emission points. The commenters state that in sulfuric 

acid regeneration units (SARUs), metal HAP are already 

controlled to >95 percent within the process itself and that it 

would be unreasonable to require an additional 95 percent 

control for metal HAP vents. The commenters recommend that a 

metal HAP process vent be defined as containing at least 50 ppmv 

metal HAP (similar to the batch and continuous process vents 

definitions), or that all vents from SARUs be excluded.

Response: The EPA agrees with the commenters that a metal 

HAP process vent should be defined as containing at least 50 

ppmv metal HAP, consistent with the definitions of batch and 

continuous process vents. In reviewing other rules that regulate 

the chemical sector (e.g., the MON) and define a process vent as 
***E.O. 12866 Review-Draft-Do Not Cite, Quote or Release During Review***

Page 58 of 113

containing at least 50 ppmv, the EPA found that it applied to 

process vents containing any HAP, not just organic HAP. As such, 

the EPA has revised the final rule to define a metal HAP process 

vent as containing at least 50 ppmv metal HAP.

Comment: One commenter requested that the EPA exempt 

process vents from CMPU using metal HAP in solution from the 

requirements for metal HAP process vents. The commenter cites 

the low potential for emissions from these low vapor pressure 

metal HAP solutions as rationale for exempting them. One 

commenter cited 40 CFR part 63, subpart CCCCCCC as an example of 

an area source rule that exempts metal HAP in solution. The 

commenter also provided examples of regulatory text that could 

be used in the CMAS rule.

Response: The EPA agrees with the commenter that it is not 

necessary to subject process vents from CMPU using metal HAP in 

solution to the requirements for metal HAP process vents. As the 

CMAS rule requires that CMPU process vents with total metal HAP 

emissions of less than 400 pounds/year (lb/yr) maintain records 

demonstrating that total metal HAP emissions are less than 400 

lb/yr, and it is unlikely that process vents from CMPU handling 

only metal HAP in solution would ever exceed this value due to 

the little or no potential for air emissions to occur, this 

requirement results in an unnecessary recordkeeping burden for 
***E.O. 12866 Review-Draft-Do Not Cite, Quote or Release During Review***

Page 59 of 113

the facility. As such, we have revised the final rule to state 

that process vents from CMPU that only contain metal HAP in a 

liquid solution or other form that will not result in 

particulate emissions of metal HAP (e.g., metal HAP that is in 

ingot, paste, slurry or moist pellet form or other form) are not 

required to comply with the metal HAP process vent requirements.

H. Compliance Date

Comment: Four commenters requested that the EPA extend the 

compliance date for a period of time ranging from 18 months to 3 

years. The commenters all stated that the potential expansion of 

the applicability of the final rule would require additional 

time for sources to re-evaluate whether they would be subject to 

the rule. One commenter also cited the uncertainty surrounding 

the family of materials concept as finalized in the original 

rule and the fact that the EPA did not address the de minimis

threshold issue that the Petitioners raised in their petition 

for reconsideration as reasons for extending the compliance 

date. The commenters stated that the EPA has the legal authority 

to extend the compliance date, citing the circumstances under 

which the EPA did so in the Boiler MACT reconsideration.

Response: The EPA agrees that a short extension of the 

compliance date is warranted for existing sources, not an 

extension of 18 months to 3 years. Given the amount of 
***E.O. 12866 Review-Draft-Do Not Cite, Quote or Release During Review***

Page 60 of 113

uncertainty regarding the applicability of the family of

materials concept in the 2009 final rule, the EPA believes that 

with the revised definition of “family of materials” in these 

amendments, sources will need the short extension to evaluate 

applicability and determine the appropriate compliance approach. 

As such, the EPA believes it is reasonable to provide some 

additional period of time for facilities to review the revised 

final rule and determine which CMPU are subject to the 

requirements.

I. Technical Corrections

Comment: Six commenters objected to the proposed revision 

to base CMPU applicability on a collective 0.1 percent by weight 

(for carcinogens) or 1.0 percent by weight (for non-carcinogens) 

concentration, rather than an individual compound concentration. 

The commenters stated that this proposed change goes beyond 

being a “technical correction” as described in the proposal 

preamble, as it would significantly expand the scope of the rule 

and increase the compliance burden for facilities.

Two commenters stated that going to a collective HAP 

concentration would be inconsistent with the Toxics Release 

Inventory and the Occupational Safety and Health Administration 

Hazard Communication rules upon which the 0.1 percent and 1.0 
***E.O. 12866 Review-Draft-Do Not Cite, Quote or Release During Review***

Page 61 of 113

percent thresholds were based and would be inconsistent with the 

definition of “product” in the CMAS rule.

Three commenters also noted that by having to use the 

collective concentration, facilities would no longer be able to 

use MSDS to determine applicability because MSDS are not 

provided for compounds at concentrations below 0.1 percent.

Response: The EPA agrees with the commenters that it is not 

appropriate to use a collective HAP concentration in determining 

applicability. It was not the EPA’s intent to expand the 

applicability of the CMAS rule, but rather to clarify when it 

applied. As explained above and in section IV.F of this 

preamble, the commenters brought up numerous issues that the EPA 

had not considered when proposing this revision that would make 

determining applicability and complying with the rule extremely 

difficult. The expansion of the applicability was inadvertent 

and the final rule has not been revised as proposed.

Comment: Five commenters objected to the proposed revision 

to determine CMPU applicability based on a collective 50 ppmv 

concentration. The commenters state that, similar to the 

proposed revision to the 0.1/1.0 percent thresholds, this 

revision would significantly expand the scope of the rule, as 50 

ppmv is a much lower concentration than the 0.1/1.0 percent 

concentration thresholds that had already been established. 
***E.O. 12866 Review-Draft-Do Not Cite, Quote or Release During Review***

Page 62 of 113

Additionally, the commenters stated that facilities would no 

longer be able to rely upon MSDS for determining applicability 

and the revision goes beyond being a “technical correction” as 

described in the proposal preamble.

Response: The EPA agrees with the commenters that it is not 

appropriate to establish a collective 50 ppmv concentration 

threshold for determining applicability. It was not the EPA’s 

intent to expand the applicability of the CMAS rule, but rather 

to make the applicability consistent with the definitions of 

batch and continuous process vents. As explained above and in 

section IV.F of this preamble, the commenters brought up 

numerous issues that the EPA had not considered when proposing 

this revision, which would have inadvertently expanded the 

applicability of the rule. The expansion of the applicability 

was inadvertent and the EPA has not revised the final rule as 

proposed.

VI. What other actions are we taking? 

In addition to requesting reconsideration of the above 

issues, the petition for reconsideration also requested the EPA 

take comment on three additional issues: 1) a de minimis

exemption for all sources potentially subject to the rule; 2) a 

Petitioner proposed interpretation of the CAA section 112(c)(7) 

definition of “research or laboratory facilities” that would 
***E.O. 12866 Review-Draft-Do Not Cite, Quote or Release During Review***

Page 63 of 113

include commercial development activities; and 3) a pollution 

prevention alternative. The EPA is denying reconsideration of 

these issues because they failed to meet the standard for 

reconsideration under CAA section 307(d)(7)(B), and the EPA 

determined that reconsideration was not otherwise appropriate. 

Specifically, on these issues, the Petitioners have failed to 

show the following: that it was impracticable to raise their 

objections during the comment period; and/or that their concern 

is of central relevance to the outcome of the rules. We have 

concluded that no clarifications to the underlying rules are 

warranted for these issues.

Section 307(d)(7)(B) of the CAA states that “[o]nly an 

objection to a rule or procedure which was raised with 

reasonable specificity during the period for public comment 

(including any public hearing) may be raised during judicial 

review. If the person raising an objection can demonstrate to 

the Administrator that it was impracticable to raise such 

objection within such time or if the grounds for such objection 

arose after the period for public comment (but within the time 

specified for judicial review) and if such objection is of 

central relevance to the outcome of the rule, the Administrator

shall convene a proceeding for reconsideration of the rule and 

provide the same procedural rights as would have been afforded 
***E.O. 12866 Review-Draft-Do Not Cite, Quote or Release During Review***

Page 64 of 113

had the information been available at the time the rule was 

proposed. If the Administrator refuses to convene such a 

proceeding, such person may seek review of such refusal in the 

United States court of appeals for the appropriate circuit (as 

provided in subsection (b)).”

As to the first procedural criterion for reconsideration, a 

petitioner must show why the issue could not have been presented 

during the comment period, either because it was impracticable 

to raise the issue during that time or because the grounds for 

the issue arose after the period for public comment (but within 

60 days of publication of the final action). In the EPA’s view, 

an objection is of central relevance to the outcome of the rule 

only if it provides substantial support for the argument that 

the promulgated regulation should be revised. See, e.g., the 

EPA’s Denial of the Petition to Reconsider the Endangerment and 

Cause of Contribute Findings for the Greenhouse Gases under 

Section 202 of the Clean Air Act, 75 FR 49561 (August 13, 2010). 

See also, 75 FR 49556, 49560-49563 (August 13, 2010), and 76 FR 

4780, 4786-4788 (January 26, 2011) for additional discussion of 

the standard for reconsideration under CAA section 307(d)(7)(B).

A. De Minimis Exemption

Petitioners stated that the EPA should revise the CMAS 

final rule to include an across-the-board de minimis exemption 
***E.O. 12866 Review-Draft-Do Not Cite, Quote or Release During Review***

Page 65 of 113

for sources. The Petitioners argued that reconsideration would 

allow commenters to explain how, even with a de minimis

exemption, the EPA could meet its statutory obligations.

This issue was contained in public comments submitted in 

response to the CMAS proposed rule published on October 6, 2008 

(73 FR 58352). The EPA’s responses to the comments are presented 

in section V.A of the preamble to the final rule (74 FR 56016-

56018) and section 3.2 (pp. 3-3 – 3-4) of the October 2009 

Response to Comments Regarding National Emission Standards for 

Hazardous Air Pollutants for Chemical Manufacturing Area Sources

document (See Docket Item No. EPA-HQ-OAR-2008-0334-0087).

The comments received on this issue demonstrate that the 

public had ample opportunity to comment on this issue and indeed 

did so. The EPA responded to those comments and sees no 

substantive reason to revisit this issue. Therefore, because the 

Petitioners did not demonstrate that it was impracticable to 

comment on this issue during the comment period on the proposed 

rule and the Petitioners did comment on it during the comment 

period for the 2008 proposal, the EPA is denying reconsideration 

of this issue.

B. Research and Development Interpretation

Petitioners stated that the EPA should take comment on an 

interpretation of “research and laboratory facility” in the CMAS 
***E.O. 12866 Review-Draft-Do Not Cite, Quote or Release During Review***

Page 66 of 113

final rule that would exempt equipment associated with 

“research” or “laboratory” activities as those terms are defined 

by the Petitioners. The Petitioners were concerned that, without 

an interpretation of the CAA section 112(c)(7) exemption for 

research and development facilities, the CMAS rule may pose a 

substantial compliance challenge for some sources.

This issue was contained in public comments submitted in 

response to the CMAS proposed rule published on October 6, 2008 

(73 FR 58352). The EPA’s responses to the comments are presented 

in section 3.5.3 (pp. 3-11) of the October 2009 Response to 

Comments Regarding National Emission Standards for Hazardous Air 

Pollutants for Chemical Manufacturing Area Sources document (See 

Docket Item No. EPA-HQ-OAR-2008-0334-0087).

The comments received on this issue demonstrate that the 

public had ample opportunity to comment on this issue and indeed 

did so. The EPA responded to those comments and sees no 

substantive reason to revisit this issue. Therefore, because the 

Petitioners did not demonstrate that it was impracticable to 

comment on this issue during the comment period on the proposed 

rule and the Petitioners did comment on it during the comment 

period for the 2008 proposal, the EPA is denying reconsideration 

of this issue.

C. Pollution Prevention Alternative
***E.O. 12866 Review-Draft-Do Not Cite, Quote or Release During Review***

Page 67 of 113

Petitioners stated that the EPA should revise the CMAS 

final rule to include a pollution prevention alternative. The 

Petitioners argued that there would be broad interest in this 

alternative and that data would be made available for the EPA to 

specify requirements for such an alternative.

This issue was contained in public comments submitted in 

response to the CMAS proposed rule published on October 6, 2008 

(73 FR 58352). The EPA’s responses to the comments are presented 

in section 4.7 (pp. 4-7 – 4-8) of the October 2009 Response to 

Comments Regarding National Emission Standards for Hazardous Air 

Pollutants for Chemical Manufacturing Area Sources document (See 

Docket Item No. EPA-HQ-OAR-2008-0334-0087).

The comments received on this issue demonstrate that the 

public had ample opportunity to comment on this issue, and 

indeed did so. The EPA responded to those comments and sees no 

substantive reason to revisit this issue. Therefore, because the 

Petitioners did not demonstrate that it was impracticable to 

comment on this issue during the comment period on the proposed 

rule and the Petitioners did comment on it during the comment 

period for the 2008 proposal, the EPA is denying reconsideration 

of this issue.

VII. Statutory and Executive Order Reviews
***E.O. 12866 Review-Draft-Do Not Cite, Quote or Release During Review***

Page 68 of 113

A. Executive Order 12866: Regulatory Planning and Review and 

Executive Order 13563: Improving Regulation and Regulatory 

Review

Under Executive Order 12866 (58 FR 51735, October 4, 1993), 

this action is a “significant regulatory action” because it may 

raise novel legal or policy issues. Accordingly, the EPA 

submitted this action to the Office of Management and Budget 

(OMB) for review under Executive Order 12866 and Executive Order 

13563 (76 FR 3821, January 21, 2011), and any changes made in 

response to OMB recommendations have been documented in the 

docket for this action.

B. Paperwork Reduction Act

The information collection requirements in this final rule 

have been submitted for approval to the OMB under the Paperwork 

Reduction Act, 44 U.S.C. 3501, et seq. The Information 

Collection Request (ICR) document prepared by the EPA has been 

assigned EPA ICR Number 2323.05. The information collection 

requirements are not enforceable until OMB approves them.

The information requirements are based on notification, 

recordkeeping and reporting requirements in the NESHAP General 

Provisions (40 CFR part 63, subpart A), which are mandatory for 

all operators subject to national emission standards. These 

recordkeeping and reporting requirements are specifically 
***E.O. 12866 Review-Draft-Do Not Cite, Quote or Release During Review***

Page 69 of 113

authorized by section 114 of the CAA (42 U.S.C. 7414). All 

information submitted to the EPA pursuant to the recordkeeping 

and reporting requirements for which a claim of confidentiality 

is made is safeguarded according to agency policies set forth in 

40 CFR part 2, subpart B.

For this final rule, the EPA is adding affirmative defense 

to the estimate of burden in the ICR. To provide the public with 

an estimate of the relative magnitude of the burden associated 

with an assertion of the affirmative defense position adopted by 

a source, the EPA has provided administrative adjustments to 

this ICR to show what the notification, recordkeeping and 

reporting requirements associated with the assertion of the 

affirmative defense might entail. The EPA’s estimate for the 

required notification, reports and records for any individual 

incident, including the root cause analysis, totals $2,958 and 

is based on the time and effort required of a source to review 

relevant data, interview plant employees and document the events 

surrounding a malfunction that has caused an exceedance of an 

emissions limit. The estimate also includes time to produce and 

retain the record and reports for submission to the EPA. The EPA 

provides this illustrative estimate of this burden because these 

costs are only incurred if there has been a violation and a 

source chooses to take advantage of the affirmative defense.
***E.O. 12866 Review-Draft-Do Not Cite, Quote or Release During Review***

Page 70 of 113

Given the variety of circumstances under which malfunctions 

could occur, as well as differences among sources' operation and 

maintenance practices, we cannot reliably predict the severity 

and frequency of malfunction-related excess emissions events for 

a particular source. It is important to note that the EPA has no 

basis currently for estimating the number of malfunctions that 

would qualify for an affirmative defense. Current historical 

records would be an inappropriate basis, as source owners or 

operators previously operated their facilities in recognition 

that they were exempt from the requirement to comply with 

emissions standards during malfunctions. Of the number of excess 

emissions events reported by source operators, only a small 

number would be expected to result from a malfunction (based on 

the definition above), and only a subset of excess emissions 

caused by malfunctions would result in the source choosing to 

assert the affirmative defense. Thus, we believe the number of 

instances in which source operators might be expected to avail 

themselves of the affirmative defense will be extremely small.

For this reason, we estimate no more than 2 or 3 such 

occurrences for all sources subject to 40 CFR part 63, subpart 

VVVVVV over the 3-year period covered by this ICR. We expect to 

gather information on such events in the future and will revise 

this estimate as better information becomes available.
***E.O. 12866 Review-Draft-Do Not Cite, Quote or Release During Review***

Page 71 of 113

An agency may not conduct or sponsor, and a person is not 

required to respond to, a collection of information unless it 

displays a currently valid OMB control number. The OMB control 

numbers for the EPA's regulations in 40 CFR are listed in 40 CFR 

part 9. When this ICR is approved by OMB, the agency will 

publish a technical amendment to 40 CFR part 9 in the Federal 

Register to display the OMB control number for the approved 

information collection requirements contained in this final 

rule.

C. Regulatory Flexibility Act

The Regulatory Flexibility Act generally requires an agency 

to prepare a regulatory flexibility analysis of any rule subject 

to notice and comment rulemaking requirements under the 

Administrative Procedures Act or any other statute unless the 

agency certifies that the rule will not have a significant 

economic impact on a substantial number of small entities. Small 

entities include small businesses, small organizations and small 

governmental jurisdictions.

For purposes of assessing the impacts of this final rule on 

small entities, small entity is defined as: (1) A small business 

as defined by the Small Business Administration’s regulations at 

13 CFR 121.201 (less than 500, 750 or 1,000 employees, depending 

on the specific NAICS Code under subcategory 325); (2) a small 
***E.O. 12866 Review-Draft-Do Not Cite, Quote or Release During Review***

Page 72 of 113

governmental jurisdiction that is a government of a city, 

county, town, school district or special district with a 

population of less than 50,000; and (3) a small organization 

that is any not-for-profit enterprise that is independently 

owned and operated and is not dominant in its field.

After considering the economic impacts of this final rule 

on small entities, I certify that this action will not have a 

significant economic impact on a substantial number of small 

entities. This final rule will not impose any new requirements 

on any small entities because it does not impose any additional 

regulatory requirements beyond those already promulgated.

D. Unfunded Mandates Reform Act

This action contains no federal mandates under the 

provisions of Title II of the Unfunded Mandates Reform Act of 

1995 (UMRA), 2 U.S.C. 1531-1538 for state, local or tribal 

governments or the private sector. This final rule imposes no 

enforceable duty on any state, local or tribal governments or 

the private sector. Therefore, this final rule is not subject to 

the requirements of sections 202 and 205 of the UMRA.

This action is also not subject to the requirements of 

section 203 of UMRA because it contains no regulatory 

requirements that might significantly or uniquely affect small 

governments. This rule finalizes amendments to aid with 
***E.O. 12866 Review-Draft-Do Not Cite, Quote or Release During Review***

Page 73 of 113

compliance but does not change the level of the standards in the 

rule. 

E. Executive Order 13132: Federalism

This action does not have federalism implications. It will 

not have substantial direct effects on the states, on the 

relationship between the national government and the states or 

on the distribution of power and responsibilities among the 

various levels of government, as specified in Executive Order 

13132. This final rule will not impose direct compliance costs 

on state or local governments and will not preempt state law. 

Thus, Executive Order 13132 does not apply to this action.

F. Executive Order 13175: Consultation and Coordination with 

Indian Tribal Governments

This final rule does not have tribal implications, as 

specified in Executive Order 13175 (65 FR 67249, November 9, 

2000). It will not have substantial direct effects on tribal 

governments, on the relationship between the federal government 

and Indian tribes or on the distribution of power and 

responsibilities between the federal government and Indian 

tribes, as specified in Executive Order 13175. Thus, Executive 

Order 13175 does not apply to this final rule.

G. Executive Order 13045: Protection of Children from 

Environmental Health Risks and Safety Risks
***E.O. 12866 Review-Draft-Do Not Cite, Quote or Release During Review***

Page 74 of 113

The EPA interprets Executive Order 13045 (62 FR 19885, 

April 23, 1997) as applying to those regulatory actions that 

concern health or safety risks, such that the analysis required 

under section 5-501 of the Executive Order has the potential to 

influence the regulation. This final rule is not subject to 

Executive Order 13045 because it is based solely on technology 

performance. Further, this action does not relax the control 

measures on sources regulated by the final rule, and, therefore, 

will maintain the level of environmental protection.

H. Executive Order 13211: Actions Concerning Regulations That 

Significantly Affect Energy Supply, Distribution, or Use

This action is not a “significant energy action” as defined 

in Executive Order 13211 (66 FR 28355, May 22, 2001), because it 

is not likely to have a significant adverse effect on the 

supply, distribution or use of energy. Further, this action does 

not change the level of standards already in place. 

I. National Technology Transfer and Advancement Act

Section 12(d) of the National Technology Transfer and 

Advancement Act (NTTAA) of 1995, Public Law No. 104-113, 12(d) 

(15 U.S.C. 272 note) directs the EPA to use voluntary consensus 

standards (VCS) in its regulatory activities, unless to do so 

would be inconsistent with applicable law or otherwise 

impractical. VCS are technical standards (e.g., materials 
***E.O. 12866 Review-Draft-Do Not Cite, Quote or Release During Review***

Page 75 of 113

specifications, test methods, sampling procedures and business 

practices) that are developed or adopted by VCS bodies. The 

NTTAA directs the EPA to provide Congress, through OMB, 

explanations when the agency decides not use available and 

applicable VCS.

This final rulemaking does not involve technical standards. 

Therefore, the EPA did not consider the use of any VCS.

J. Executive Order 12898: Federal Actions to Address 

Environmental Justice in Minority Populations and Low-Income 

Populations

Executive Order 12898 (59 FR 7629, February 16, 1994) 

establishes federal executive policy on environmental justice. 

Its main provision directs federal agencies, to the greatest 

extent practicable and permitted by law, to make environmental 

justice part of their mission by identifying and addressing, as 

appropriate, disproportionately high and adverse human health or 

environmental effects of their programs, policies and activities 

on minority populations and low-income populations in the United 

States.

The EPA has determined that this final rule, as amended, 

will not have disproportionately high and adverse human health 

or environmental effects on minority or low-income populations 

because the rule amendments maintain the level of environmental 
***E.O. 12866 Review-Draft-Do Not Cite, Quote or Release During Review***

Page 76 of 113

protection for all affected populations without having any 

disproportionately high and adverse human health or 

environmental effects on any population, including any minority 

or low-income population. This action does not relax the control 

measures on sources regulated by the final rule, and, therefore, 

will not cause emissions increases from these sources.

K. Congressional Review Act

The Congressional Review Act, 5 U.S.C. 801 et seq., as 

added by the Small Business Regulatory Enforcement Fairness Act 

of 1996, generally provides that before a rule may take effect, 

the agency promulgating the rule must submit a rule report, 

which includes a copy of the rule, to each House of the Congress 

and to the Comptroller General of the United States. EPA will 

submit a report containing this rule and other required 

information to the U.S. Senate, the U.S. House of 

Representatives, and the Comptroller General of the United 

States prior to publication of the rule in the Federal Register. 

A Major rule cannot take effect until 60 days after it is 

published in the Federal Register. This action is not a “major 

rule” as defined by 5 U.S.C. 804(2). This rule will be effective 

[INSERT DATE OF PUBLICATION OF THE FINAL RULE IN FEDERAL 

REGISTER].
***E.O. 12866 Review-Draft-Do Not Cite, Quote or Release During Review***

National Emission Standards for Hazardous Air Pollutants for 

Chemical Manufacturing Area Sources--Page 77 of 113

List of Subjects in 40 CFR Part 63

Environmental protection, Administrative practice and procedure, 

Air pollution control, Hazardous substances.

Dated:

Lisa P. Jackson,

Administrator.
***E.O. 12866 Review-Draft-Do Not Cite, Quote or Release During Review***

Page 78 of 113

For the reasons cited in the preamble, title 40, chapter I, 

part 63 of the Code of Federal Regulations is amended as 

follows:

PART 63--[AMENDED]

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

follows:

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

Subpart VVVVVV—[AMENDED]

2. Section 63.11494 is amended by:

a. Revising paragraph (a);

b. Adding paragraph (c)(1)(vii);

c. Revising the last sentence in paragraph (d) introductory 

text;

d. Removing the stay of paragraph (e); and

e. Revising paragraphs (e) and (f) to read as follows:

§63.11494 What are the applicability requirements and compliance 

dates?

(a) Except as specified in paragraph (c) of this section, 

you are subject to this subpart if you own or operate a chemical 

manufacturing process unit (CMPU) that meets the conditions 

specified in paragraphs (a)(1) and (2) of this section.

(1) The CMPU is located at an area source of hazardous air 

pollutant (HAP) emissions.
***E.O. 12866 Review-Draft-Do Not Cite, Quote or Release During Review***

Page 79 of 113

(2) HAP listed in Table 1 to this subpart (Table 1 HAP) are 

present in the CMPU, as specified in paragraph (a)(2)(i), (ii), 

(iii), or (iv) of this section.

(i) The CMPU uses as feedstock, any material that contains 

quinoline, manganese, and/or trivalent chromium at an individual 

concentration greater than 1.0 percent by weight, or any other 

Table 1 HAP at an individual concentration greater than 0.1 

percent by weight. To determine the Table 1 HAP content of 

feedstocks, you may rely on formulation data provided by the 

manufacturer or supplier, such as the Material Safety Data Sheet 

(MSDS) for the material. If the concentration in an MSDS is 

presented as a range, use the upper bound of the range.

(ii) Quinoline is generated as byproduct and is present in 

the CMPU in any liquid stream (process or waste) at a 

concentration greater than 1.0 percent by weight.

(iii) Hydrazine and/or Table 1 organic HAP other than 

quinoline are generated as byproduct and are present in the CMPU 

in any liquid stream (process or waste), continuous process 

vent, or batch process vent at an individual concentration 

greater than 0.1 percent by weight.

(iv) Hydrazine or any Table 1 HAP is produced as a product 

of the CMPU.

* * * * *
***E.O. 12866 Review-Draft-Do Not Cite, Quote or Release During Review***

Page 80 of 113

(c) * * *

(1) * * *

(vii) Lead oxide production at Lead Acid Battery 

Manufacturing Facilities, subject to subpart PPPPPP of this 

part.

* * * * *

(d) * * * A CMPU using only Table 1 metal HAP is 

required to control only total CAA section 112(b) metal HAP in 

accordance with §63.11495 and, if applicable, §63.11496(f).

* * * * *

(e) Any area source that installed a federally-enforceable 

control device on an affected CMPU is required to obtain a 

permit under 40 CFR part 70 or 40 CFR part 71 if the control 

device on the affected CMPU is necessary to maintain the 

source’s emissions at area source levels. For new and existing 

sources subject to this rule on [INSERT DATE OF PUBLICATION OF 

THE FINAL RULE IN FEDERAL REGISTER] and subject to title V as a 

result of this rule, a complete title V permit application must 

be submitted no later than [INSERT DATE 12 MONTHS AFTER 

PUBLICATION OF THE FINAL RULE IN FEDERAL REGISTER]. New and 

existing sources that become subject to this rule after [INSERT 

DATE OF PUBLICATION OF THE FINAL RULE IN FEDERAL REGISTER] must 

submit a complete title V permit application no later than 12 
***E.O. 12866 Review-Draft-Do Not Cite, Quote or Release During Review***

Page 81 of 113

months after becoming subject to this rule if the source is 

subject to title V as a result of this rule. Otherwise, you are 

exempt from the obligation to obtain a permit under 40 CFR part 

70 or 40 CFR part 71, provided you are not otherwise required by 

law to obtain a permit under 40 CFR 70.3(a) or 40 CFR 71.3(a). 

Notwithstanding the previous sentence, you must continue to 

comply with the provisions of this subpart.

(f) If you own or operate an existing affected source, you 

must achieve compliance with the applicable provisions in this 

subpart no later than January 27, 2013.

* * * * *

3. Section 63.11495 is amended by:

a. Revising paragraphs (a)(1) and (a)(3);

b. Adding paragraph (c) heading; and 

c. Adding paragraph (d) to read as follows:

§63.11495 What are the management practices and other 

requirements?

(a) * * *

(1) Each process vessel must be equipped with a cover or 

lid that must be closed at all times when it is in organic HAP 

service or metal HAP service, except for manual operations that 

require access, such as material addition and removal, 

inspection, sampling and cleaning. This requirement does not 
***E.O. 12866 Review-Draft-Do Not Cite, Quote or Release During Review***

Page 82 of 113

apply to process vessels containing only metal HAP that are in a 

liquid solution or other form that will not result in 

particulate emissions of metal HAP (e.g., metal HAP that is in 

ingot, paste, slurry, or moist pellet form or other form).

* * * * *

(3) You must conduct inspections of process vessels and 

equipment for each CMPU in organic HAP service or metal HAP 

service, as specified in paragraphs (a)(3)(i) through (v) of 

this section, to demonstrate compliance with paragraph (a)(1) of 

this section and to determine that the process vessels and 

equipment are sound and free of leaks. Alternatively, except 

when the subject CMPU contains metal HAP as particulate, 

inspections may be conducted while the subject process vessels 

and equipment are in VOC service, provided that leaks can be 

detected when in VOC service.

(i) Inspections must be conducted at least quarterly.

(ii) For these inspections, detection methods incorporating 

sight, sound, or smell are acceptable. Indications of a leak 

identified using such methods constitute a leak unless you 

demonstrate that the indications of a leak are due to a 

condition other than loss of HAP. If indications of a leak are 

determined not to be HAP in one quarterly monitoring period, you 
***E.O. 12866 Review-Draft-Do Not Cite, Quote or Release During Review***

Page 83 of 113

must still perform the inspection and demonstration in the next 

quarterly monitoring period.

(iii) As an alternative to conducting inspections, as 

specified in paragraph (a)(3)(ii) of this section, you may use 

Method 21 of 40 CFR part 60, appendix A-7, with a leak 

definition of 500 ppmv to detect leaks. You may also use Method 

21 with a leak definition of 500 ppmv to determine if 

indications of a leak identified during an inspection conducted 

in accordance with paragraph (a)(3)(ii) of this section are due 

to a condition other than loss of HAP. The procedures in this 

paragraph (a)(3)(iii) may not be used as an alternative to the 

inspection required by paragraph (a)(3)(ii) of this section for 

process vessels that contain metal HAP as particulate.

(iv) Inspections must be conducted while the subject CMPU 

is operating.

(v) No inspection is required in a calendar quarter during 

which the subject CMPU does not operate for the entire calendar 

quarter and is not in organic HAP service or metal HAP service. 

If the CMPU operates at all during a calendar quarter, an 

inspection is required.

* * * * *

(c) Startup, shutdown and malfunction. * * *
***E.O. 12866 Review-Draft-Do Not Cite, Quote or Release During Review***

Page 84 of 113

(d) General duty. At all times, you must operate and 

maintain any affected CMPU, including associated air pollution 

control equipment and monitoring equipment, in a manner 

consistent with safety and good air pollution control practices 

for minimizing emissions. Determination of whether such 

operation and maintenance procedures are being used will be 

based on information available to the Administrator, which may 

include, but is not limited to, monitoring results, review of 

operation and maintenance procedures, review of operation and 

maintenance records, and inspection of the CMPU.

4. Section 63.11496 is amended by:

a. Revising the last sentence in paragraph (c);

b. Revising paragraphs (d) and (e) introductory texts;

c. Adding paragraph (e)(6);

d. Adding a sentence to the end of paragraph (f) 

introductory text;

e. Revising paragraphs (f)(3)(i)(C), (f)(3)(ii), and 

(g)(1);

f. Revising the first sentence in paragraph (g)(2); and

g. Revising paragraphs (g)(4)(i) and (g)(5).

The additions and revisions read as follows:

§63.11496 What are the standards and compliance requirements for 

process vents?
***E.O. 12866 Review-Draft-Do Not Cite, Quote or Release During Review***

Page 85 of 113

* * * * *

(c) * * * The TRE index value for continuous process 

vents and the annual emissions from batch process vents shall be 

determined for the individual streams before they are combined, 

and prior to any control (e.g., by subtracting any emission 

contributions from storage tanks, continuous process vents or 

batch process vents, as applicable), in order to determine the 

most stringent applicable requirements.

(d) Halogenated Streams. You must determine if an emission 

stream is a halogenated vent stream by calculating the mass 

emission rate of halogen atoms in accordance with 

§63.115(d)(2)(v). Alternatively, you may elect to designate the 

emission stream as halogenated. If you use a combustion device 

to comply with the emission limits for organic HAP from a 

halogenated batch process vent or a halogenated continuous 

process vent, you must use a halogen reduction device to meet 

the emission limit in either paragraph (d)(1) or (d)(2) of this 

section and in accordance with §63.994 and the requirements 

referenced therein.

* * * * *

(e) Alternative Standard for Organic HAP. Exceptions to the 

requirements for the alternative standard requirements specified 
***E.O. 12866 Review-Draft-Do Not Cite, Quote or Release During Review***

Page 86 of 113

in Tables 2 and 3 to this subpart and §63.2505 are specified in 

paragraphs (e)(1) through (6) of this section.

* * * * *

(6) CEMS requirements and data reduction requirements for 

CEMS specified in §63.2450(j) apply.

* * * * *

(f) Emissions from Metal HAP Process Vents. * * * The 

requirements of this paragraph (f) do not apply to metal HAP 

process vents from CMPU containing only metal HAP that are in a 

liquid solution or other form that will not result in 

particulate emissions of metal HAP (e.g., metal HAP that is in 

ingot, paste, slurry, or moist pellet form or other form).

* * * * *

(3) * * *

(i) * * *

(C) Operation and maintenance plan for the control device 

(including a preventative maintenance schedule consistent with 

the manufacturer's instructions for routine and long-term 

maintenance) and continuous monitoring system (CMS).

* * * * *

(ii) You must conduct a performance test or an engineering 

assessment for each CMPU subject to a HAP metals emissions limit

in Table 4 to this subpart and report the results in your 
***E.O. 12866 Review-Draft-Do Not Cite, Quote or Release During Review***

Page 87 of 113

Notification of Compliance Status (NOCS). Each performance test 

or engineering assessment must be conducted under representative 

operating conditions, and sampling for each performance test 

must be conducted at both the inlet and outlet of the control 

device. Upon request, you shall make available to the 

Administrator such records as may be necessary to determine the 

conditions of performance tests. If you own or operate an 

existing affected source, you are not required to conduct a 

performance test if a prior performance test was conducted 

within the 5 years prior to the effective date using the same 

methods specified in paragraph (f)(3)(iii) of this section, and, 

either no process changes have been made since the test, or, if 

you can demonstrate that the results of the performance test, 

with or without adjustments, reliably demonstrate compliance 

despite process changes.

* * * * *

(g) * * *

(1) Requirements for Performance Tests. (i) The

requirements specified in §§63.2450(g)(1) through (4) apply 

instead of, or in addition to, the requirements specified in 40 

CFR part 63, subpart SS.
***E.O. 12866 Review-Draft-Do Not Cite, Quote or Release During Review***

Page 88 of 113

(ii) Upon request, you shall make available to the 

Administrator, such records as may be necessary to determine the 

conditions of performance tests.

(2) Design Evaluation. To determine initial compliance with 

a percent reduction or outlet concentration emission limit, you 

may elect to conduct a design evaluation as specified in 

§63.1257(a)(1) instead of a performance test as specified in 

subpart SS of this part 63. * * *

* * * * *

(4) * * *

(i) You may measure pH or caustic strength of the scrubber 

effluent at least once per day for any halogen scrubber within a 

CMPU subject to this rule.

* * * * *

(5) Startup, Shutdown, Malfunction (SSM). Sections 

63.996(c)(2)(ii) and 63.998(b)(2)(iii), (b)(6)(i)(A), 

(c)(1)(ii)(E) and (d)(3) do not apply for the purposes of this 

subpart.

* * * * *

5. Section 63.11497 is amended by adding paragraph (d) to 

read as follows:

§63. 11497 What are the standards and compliance requirements 

for storage tanks?
***E.O. 12866 Review-Draft-Do Not Cite, Quote or Release During Review***

Page 89 of 113

* * * * *

(d) Combustion of Halogenated Streams. If you use a 

combustion device to comply with the emission limits for organic 

HAP from a halogenated vent stream from a storage tank, you must 

reduce emissions in accordance with §63.11496(d) and the 

requirements referenced therein.

6. Section 63.11498 is amended by revising paragraph (a)(2) 

to read as follows:

§63.11498 What are the standards and compliance requirements for 

wastewater systems?

(a) * * *

(2) You are not required to determine the partially soluble 

concentration in wastewater that is hard piped to a combustion 

unit or hazardous waste treatment unit, as specified in Table 6, 

Item 2.b to this subpart.

* * * * *

7. Section 63.11500 is amended by revising paragraph (a) to 

read as follows:

§63.11500 What compliance options do I have if part of my plant 

is subject to both this subpart and another Federal standard?

* * * * *

(a) Compliance with Other Subparts of this Part 63. (1) If 

any part of a CMPU that is subject to the provisions of this 
***E.O. 12866 Review-Draft-Do Not Cite, Quote or Release During Review***

Page 90 of 113

subpart is also subject to the provisions of another subpart of 

40 CFR part 63, then compliance with any of the requirements in 

the other subpart of this part 63 that are at least as stringent 

as the corresponding requirements in this subpart VVVVVV 

constitutes compliance with this subpart VVVVVV.

(2) After the compliance dates specified in §63.11494, at 

an offsite reloading or cleaning facility subject to 

§63.1253(f), as referenced from §63.2470(e) and Table 4 to 

subpart VVVVVV, compliance with the monitoring, recordkeeping, 

and reporting provisions of any other subpart of this part 63 

constitutes compliance with the monitoring, recordkeeping, and 

reporting provisions of §63.1253(f)(7)(ii) or (iii). You must 

identify in your notification of compliance status report 

required by §63.11501(b) the subpart of this part 63 with which 

the owner or operator of the offsite reloading or cleaning

facility complies.

* * * * *

8. Section 63.11501 is amended by:

a. Revising the section heading;

b. Revising the last sentence in paragraph (c) introductory 

text;

c. Revising paragraph (c)(1) introductory text;

d. Adding paragraphs (c)(1)(vii) and (c)(1)(viii);
***E.O. 12866 Review-Draft-Do Not Cite, Quote or Release During Review***

Page 91 of 113

e. Revising paragraph (c)(4)(i);

f. Adding paragraph (c)(8);

g. Revising the last sentence in paragraph (d) introductory 

text; and

h. Adding paragraphs (d)(8) and (e) to read as follows:

§63.11501 What are the notification, recordkeeping, and 

reporting requirements, and how may I assert an affirmative 

defense for violation of emission standards during malfunction?

* * * * *

(c) Recordkeeping. * * * If you are subject, you must 

comply with the recordkeeping and reporting requirements of 

§63.10(b)(2)(iii) and (vi) through (xiv), and the applicable 

requirements specified in paragraphs (c)(1) through (8) of this 

section.

(1) For each CMPU subject to this subpart, you must keep 

the records specified in paragraphs (c)(1)(i) through (viii) of 

this section.

* * * * *

(vii) Records of the date, time, and duration of each 

malfunction of operation of process equipment, control devices, 

recovery devices, or continuous monitoring systems used to 

comply with this subpart that causes a failure to meet a 

standard. The record must include a list of the affected sources 
***E.O. 12866 Review-Draft-Do Not Cite, Quote or Release During Review***

Page 92 of 113

or equipment, an estimate of the volume of each regulated 

pollutant emitted over the standard, and a description of the 

method used to estimate the emissions.

(viii) Records of actions taken during periods of 

malfunction to minimize emissions in accordance with 

§63.11495(d), including corrective actions to restore 

malfunctioning process and air pollution control and monitoring 

equipment to its normal or usual manner of operation.

* * * * *

(4) * * *

(i) Keep records of the vessel dimensions, capacity, and 

liquid stored, as specified in §63.1065(a).

* * * * *

(8) For continuous process vents subject to Table 3 to this 

subpart, keep records of the occurrence and duration of each 

startup and shutdown of operation of process equipment, or of 

air pollution control and monitoring equipment.

(d) * * * Reports are required only for semiannual 

periods during which you experienced any of the events described 

in paragraphs (d)(1) through (8) of this section.

* * * * *

(8) Malfunctions. If a malfunction occurred during the 

reporting period, the report must include the number of 
***E.O. 12866 Review-Draft-Do Not Cite, Quote or Release During Review***

Page 93 of 113

instances of malfunctions that caused emissions in excess of a 

standard. For each malfunction that caused emissions in excess 

of a standard, the report must include a list of the affected 

sources or equipment, an estimate of the volume of each 

regulated pollutant emitted over the standard, and a description 

of the method used to estimate the emissions. The report must 

also include a description of actions you took during a 

malfunction of an affected source to minimize emissions in 

accordance with §63.11495(d), including actions taken to correct 

a malfunction.

(e) Affirmative defense for violation of emission standards 

during malfunction. In response to an action to enforce the 

standards set forth in §§63.11495 through 63.11499, you may 

assert an affirmative defense to a claim for civil penalties for 

violations of such standards that are caused by malfunction, as 

defined at 40 CFR 63.2. Appropriate penalties may be assessed if 

you fail to meet your burden of proving all of the requirements 

in the affirmative defense. The affirmative defense shall not 

available for claims for injunctive relief.

(1) To establish the affirmative defense in any action to 

enforce such a standard, you must timely meet the notification 

requirements in paragraph (e)(2) of this section, and must prove 

by a preponderance of evidence that:
***E.O. 12866 Review-Draft-Do Not Cite, Quote or Release During Review***

Page 94 of 113

(i) The violation:

(A) Was caused by a sudden, infrequent, and unavoidable 

failure of air pollution control equipment, process equipment, 

or a process to operate in a normal or usual manner; and

(B) Could not have been prevented through careful planning, 

proper design, or better operation and maintenance practices; 

and

(C) Did not stem from any activity or event that could have 

been foreseen and avoided, or planned for; and

(D) Was not part of a recurring pattern indicative of 

inadequate design, operation, or maintenance; and

(ii) Repairs were made as expeditiously as possible when a 

violation occurred. Off-shift and overtime labor were used, to 

the extent practicable to make these repairs; and

(iii) The frequency, amount, and duration of the violation 

(including any bypass) were minimized to the maximum extent 

practicable; and

(iv) If the violation resulted from a bypass of control 

equipment or a process, then the bypass was unavoidable to 

prevent loss of life, personal injury, or severe property 

damage; and
***E.O. 12866 Review-Draft-Do Not Cite, Quote or Release During Review***

Page 95 of 113

(v) All possible steps were taken to minimize the impact of 

the violation on ambient air quality, the environment and human 

health; and

(vi) All emissions monitoring and control systems were kept 

in operation if at all possible, consistent with safety and good 

air pollution control practices; and

(vii) All of the actions in response to the violation were 

documented by properly signed, contemporaneous operating logs; 

and

(viii) At all times, the affected CMPU was operated in a 

manner consistent with good practices for minimizing emissions; 

and

(ix) A written root cause analysis has been prepared, the 

purpose of which is to determine, correct, and eliminate the 

primary causes of the malfunction and the violation resulting 

from the malfunction event at issue. The analysis must also 

specify, using best monitoring methods and engineering judgment, 

the amount of any emissions that were the result of the 

malfunction.

(2) Report. If you seek to assert an affirmative defense, 

you must submit a written report to the Administrator, with all 

necessary supporting documentation, that you have met the 

requirements set forth in paragraph (e)(1) of this section. This 
***E.O. 12866 Review-Draft-Do Not Cite, Quote or Release During Review***

Page 96 of 113

affirmative defense report must be included in the first 

periodic compliance report, deviation report, or excess emission 

report otherwise required after the initial occurrence of the 

violation of the relevant standard (which may be the end of any 

applicable averaging period). If such compliance report, 

deviation report, or excess emission report is due less than 45 

days after the initial occurrence of the violation, the 

affirmative defense report may be included in the second 

compliance report, deviation report, or excess emission report 

due after the initial occurrence of the violation of the 

relevant standard.

9. Section 63.11502 is amended by:

a. In paragraph (a) adding in alphabetical order the terms 

“Batch operation (§63.2550),” “Continuous operation (§63.2550),” 

“Control device (§63.111),” and “Isolated intermediate 

(§63.2550),” and removing the term “Family of materials 

(§63.2550)”; and

b. In paragraph (b) adding in alphabetical order 

definitions for “Affirmative defense,” “Engineering assessment,” 

“Family of materials,” “Hazardous waste treatment,” “In VOC 

service,” “Point of determination,” and “Uncontrolled 

emissions,” revising the second sentence of the definition of 

“Batch process vent,” revising paragraph (1) of the definition 
***E.O. 12866 Review-Draft-Do Not Cite, Quote or Release During Review***

Page 97 of 113

of “Chemical manufacturing process,” and revising the 

definitions for “In metal HAP service,” “In organic HAP 

service,” “Metal HAP process vent,” and “Product” to read as 

follows: 

§63.11502 What definitions apply to this subpart?

* * * * *

(b) * * *

Affirmative defense means, in the context of an enforcement 

proceeding, a response or defense put forward by a defendant, 

regarding which the defendant has the burden of proof, and the 

merits of which are independently and objectively evaluated in a 

judicial or administrative proceeding.

* * * * *

Batch process vent * * * Batch process vents include 

vents from batch operations and vents with intermittent flow 

from continuous operations that are not combined with any stream 

that originated as a continuous gas stream from the same 

continuous process. * * *

* * * * *

Chemical manufacturing process * * *

(1) All cleaning operations;

* * * * *
***E.O. 12866 Review-Draft-Do Not Cite, Quote or Release During Review***

Page 98 of 113

Engineering assessment means, but is not limited to, the 

following:

(1) Previous test results provided the tests are 

representative of current operating practices at the process 

unit.

(2) Bench-scale or pilot-scale test data representative of 

the process under representative operating conditions.

(3) Maximum flow rate, TOC emission rate, organic HAP 

emission rate, metal HAP emission rate, or net heating value 

limit specified or implied within a permit limit applicable to 

the process vent.

(4) Design analysis based on accepted chemical engineering 

principles, measurable process parameters, or physical or 

chemical laws or properties. Examples of analytical methods 

include, but are not limited to:

(i) Use of material balances based on process stoichiometry 

to estimate maximum organic HAP or metal HAP concentrations;

(ii) Estimation of maximum flow rate based on physical 

equipment design such as pump or blower capacities;

(iii) Estimation of TOC, organic HAP, or metal HAP 

concentrations based on saturation conditions; or

(iv) Estimation of maximum expected net heating value based 

on the vent stream concentration of each organic compound or, 
***E.O. 12866 Review-Draft-Do Not Cite, Quote or Release During Review***

Page 99 of 113

alternatively, as if all TOC in the vent stream were the 

compound with the highest heating value.

(5) All data, assumptions, and procedures used in the 

engineering assessment shall be documented.

* * * * *

Family of materials means a grouping of materials that have 

the same basic composition or the same basic end use or 

functionality; are produced using the same basic feedstocks, the 

same manufacturing equipment configuration and in the same 

sequence of steps; and whose production results in emissions of 

the same Table 1 HAP at approximately the same rate per pound of 

product produced. Examples of families of materials include 

multiple grades of same product or different variations of a 

product (e.g., blue, black and red resins).

* * * * *

Hazardous waste treatment, as used in the wastewater 

requirements, means treatment in any of the following units:

(1) A hazardous waste incinerator for which you have been 

issued a final permit under 40 CFR part 270 and comply with the 

requirements of 40 CFR part 264, subpart O, for which you have 

certified compliance with the interim status requirements of 40 

CFR part 265, subpart O, or for which you have submitted a 

Notification of Compliance under 40 CFR 63.1207(j) and comply 
***E.O. 12866 Review-Draft-Do Not Cite, Quote or Release During Review***

Page 100 of 113

with the requirements of 40 CFR part 63, subpart EEE at all 

times (including times when non-hazardous waste is being 

burned);

(2) A process heater or boiler for which you have been 

issued a final permit under 40 CFR part 270 and comply with the 

requirements of 40 CFR part 266, subpart H, for which you have 

certified compliance with the interim status requirements of 40 

CFR part 266, subpart H, or for which you have submitted a 

Notification of Compliance under 40 CFR 63.1207(j) and comply 

with the requirements of 40 CFR part 63, subpart EEE at all 

times (including times when non-hazardous waste is being 

burned); or

(3) An underground injection well for which you have been 

issued a final permit under 40 CFR part 270 or 40 CFR part 144 

and comply with the requirements of 40 CFR part 122.

In metal HAP service means that a process vessel or piece 

of equipment either contains or contacts a feedstock, byproduct, 

or product that contains metal HAP. A process vessel is no 

longer in metal HAP service after the vessel has been emptied to 

the extent practicable (i.e., a vessel with liquid left on 

process vessel walls or as bottom clingage, but not in pools, 

due to floor irregularity, is considered completely empty) and 

any cleaning has been completed.
***E.O. 12866 Review-Draft-Do Not Cite, Quote or Release During Review***

Page 101 of 113

In organic HAP service means that a process vessel or piece 

of equipment either contains or contacts a feedstock, byproduct, 

or product that contains an organic HAP, excluding any organic 

HAP used in manual cleaning activities. A process vessel is no 

longer in organic HAP service after the vessel has been emptied 

to the extent practicable (i.e., a vessel with liquid left on 

process vessel walls or as bottom clingage, but not in pools, 

due to floor irregularity, is considered completely empty) and 

any cleaning has been completed.

In VOC service means that a process vessel or piece of 

equipment either contains or contacts a fluid that contains VOC.

* * * * *

Metal HAP process vent means the point of discharge to the 

atmosphere (or inlet to a control device, if any) of a metal 

HAP-containing gas stream from any CMPU at an affected source 

containing at least 50 ppmv metal HAP. The metal HAP 

concentration may be determined using any of the following: 

process knowledge, an engineering assessment, or test data.

* * * * *

Point of determination means “point of determination” as 

defined in §63.111 in subpart G of this part, except:

(1) The reference to Table 8 or Table 9 compounds means 

Table 9 (subpart G) or Table 7 (subpart VVVVVV) compounds; 
***E.O. 12866 Review-Draft-Do Not Cite, Quote or Release During Review***

Page 102 of 113

(2) The reference to “as determined in §63.144 of this 

subpart” does not apply for the purposes of this subpart; and

(3) The point of determination is made at the point where 

the stream exits the CMPU. If a recovery device is used, the 

point of determination is after the last recovery device.

Product means a compound or chemical which is manufactured 

as the intended product of the CMPU. Products include coproducts. By-products, impurities, wastes, and trace 

contaminants are not considered products.

* * * * *

Uncontrolled emissions means organic HAP process vent 

emissions or metal HAP process vent emissions, as applicable, at 

the outlet of the last recovery device, if any, and prior to any 

control device. In the absence of both recovery devices and 

control devices, uncontrolled emissions are the emissions 

discharged to the atmosphere.

* * * * *

10. Table 3 to subpart VVVVVV of part 63 is revised to read 

as follows:

Table 3 to Subpart VVVVVV of Part 63—Emission Limits and 

Compliance Requirements for Continuous Process Vents

As required in §63.11496, you must comply with the 

requirements for continuous process vents as shown in the 

following table.
***E.O. 12866 Review-Draft-Do Not Cite, Quote or Release During Review***

Page 103 of 113

For... You must... Except...

1. Each 

continuous 

process vent 

with a TRE ≤1.0

a. Reduce emissions of 

total organic HAP by 

≥95 percent by weight 

(≥85 percent by weight 

for periods of startup 

or shutdown) or to ≤20 

ppmv by routing 

emissions through a 

closed vent system to 

any combination of 

control devices 

(except a flare) in 

accordance with the 

requirements of 

§63.982(c) and the 

requirements 

referenced therein; or

i. Compliance may 

be based on 

either total 

organic HAP or 

TOC; and

ii. As specified 

in §63.11496(g).

b. Reduce emissions of 

total organic by HAP 

by routing all 

emissions through a 

closed-vent system to 

a flare (except that a 

flare may not be used 

to control halogenated 

vent streams) in 

accordance with the 

requirements of 

§63.982(b) and the 

requirements 

referenced therein, or

i. Not 

applicable.

c. Comply with the 

alternative standard 

specified in §63.2505 

and the requirements 

referenced therein. 

i. As specified 

in §63.11496(e).

2. Halogenated 

vent stream that 

is controlled 

through 

combustion 

a. Comply with the 

requirements for 

halogen scrubbers in 

§63.11496(d).

3. Each 

continuous 

a. Comply with the 

requirements of 
***E.O. 12866 Review-Draft-Do Not Cite, Quote or Release During Review***

Page 104 of 113

process vent 

with a TRE >1.0 

but ≤4.0

§63.982(e) and the 

requirements specified 

therein if a recovery 

device, as defined in 

§63.11502, is used to 

maintain a TRE >1.0 

but ≤4.0.

11. The entry for Item 1 of Table 5 to subpart VVVVVV of 

part 63 is revised to read as follows:

Table 5 to Subpart VVVVVV of part 63—Emission Limits and 

Compliance Requirements for Storage Tanks

* * * * *

For each... You must... Except...

1. Storage tank 

with a design 

capacity 

≥40,000 

gallons, 

storing liquid 

that contains 

organic HAP 

listed in Table 

1 to this 

subpart, and 

for which the 

maximum true 

vapor pressure 

(MTVP) of total 

organic HAP at 

the storage 

temperature is 

≥5.2 kPa and 

<76.6 kPa.

a. Comply with the 

requirements of 

subpart WW of this 

part; 

i. All required seals 

must be installed by 

the compliance date 

in §63.11494.

b. Reduce total 

organic HAP 

emissions by ≥95 

percent by weight by 

i. Compliance may be 

based on either total 

organic HAP or TOC;

ii. When the term 
***E.O. 12866 Review-Draft-Do Not Cite, Quote or Release During Review***

Page 105 of 113

operating and 

maintaining a 

closed-vent system 

and control device 

(other than a flare) 

in accordance with 

§63.982(c); or

storage vessel is 

used in subpart SS of 

this part, the term 

storage tank, surge 

control vessel, or 

bottoms receiver, as 

defined in §63.11502 

of this subpart, 

applies; and

iii. The requirements 

do not apply during 

periods of planned 

routine maintenance 

of the control 

device, as specified 

in §63.11497(b).

c. Reduce total HAP 

emissions by 

operating and 

maintaining a 

closed-vent system 

and a flare in 

accordance with 

§63.982(b); or

i. The requirements 

do not apply during 

periods of planned 

routine maintenance 

of the flare, as 

specified in 

§63.11497(b); and

ii. When the term 

storage vessel is 

used in subpart SS of 

this part, it means 

storage tank, surge 

control vessel, or 

bottoms receiver, as 

defined in §63.11502 

of this subpart.

d. Vapor balance in 

accordance with 

§63.2470(e); or

i. To comply with 

§63.1253(f)(6)(i), 

the owner or operator 

of an offsite 

cleaning or reloading 

facility must comply 

with §63.11494 and 

§63.11502 instead of 

complying with 

§63.1253(f)(7)(ii), 

except as specified 

in item 1.d.ii and 
***E.O. 12866 Review-Draft-Do Not Cite, Quote or Release During Review***

Page 106 of 113

1.2.iii of this 

table.

ii. The reporting 

requirements in 

§63.11501 do not 

apply to the owner or 

operator of the 

offsite cleaning or 

reloading facility.

iii. As an 

alternative to 

complying with the 

monitoring, 

recordkeeping, and 

reporting provisions 

in §§63.11494 through 

63.11502, the owner 

or operator of an 

offsite cleaning or 

reloading facility 

may comply as 

specified in 

§63.11500 with any

other subpart of this 

part 63 which has 

monitoring, 

recordkeeping, and 

reporting provisions 

as specified in 

§63.11500.

e. Route emissions 

to a fuel gas system 

or process in 

accordance with the 

requirements in 

§63.982(d) and the 

requirements 

referenced therein.

i. When the term 

storage vessel is 

used in subpart SS of 

this part, it means 

storage tank, surge 

control vessel, or 

bottoms receiver, as 

defined in §63.11502.

* * * * * * *

12. Table 6 to subpart VVVVVV of part 63 is revised to read 

as follows:
***E.O. 12866 Review-Draft-Do Not Cite, Quote or Release During Review***

Page 107 of 113

Table 6 to Subpart VVVVVV of Part 63—-Emission Limits and 

Compliance Requirements for Wastewater Systems

As required in §63.11498, you must comply with the 

requirements for wastewater systems as shown in the following 

table.

For each... You must... And you must...

1. Wastewater 

stream

a. Discharge to 

onsite or offsite 

wastewater treatment 

or hazardous waste 

treatment.

i. Maintain records 

identifying each 

wastewater stream and 

documenting the type 

of treatment that it 

receives. Multiple 

wastewater streams 

with similar 

characteristics and 

from the same type of 

activity in a CMPU 

may be grouped 

together for 

recordkeeping 

purposes.

2. Wastewater 

stream 

containing 

partially 

soluble HAP at 

a 

concentration 

≥10,000 ppmw 

and separate 

organic and 

water phases 

a. Use a decanter, 

steam stripper, thin 

film evaporator, or 

distillation unit

to separate the water 

phase from the 

organic phase(s); or

i. For the water 

phase, comply with 

the requirements in 

Item 1 of this table, 

and

ii. For the organic 

phase(s), recycle to 

a process, use as 

fuel, or dispose as 

hazardous waste 

either onsite or 

offsite, and

iii. Keep records of 

the wastewater 

streams subject to 

this requirement and 

the disposition of 

the organic phase(s).

b. Hard pipe the 

entire wastewater 

i. Keep records of 

the wastewater 
***E.O. 12866 Review-Draft-Do Not Cite, Quote or Release During Review***

Page 108 of 113

stream to onsite 

treatment as a 

hazardous waste, or 

hard pipe the entire 

wastewater stream to 

a point of transfer 

to onsite or offsite 

hazardous waste 

treatment.

streams subject to 

this requirement and 

the disposition of 

the wastewater 

streams.

Table 8 to Subpart VVVVVV of Part 63—[AMENDED]

13. Table 8 to subpart VVVVVV of part 63 is revised to read 

as follows:

Table 8 to Subpart VVVVVV of Part 63-Emission Limits and 

Compliance Requirements for Heat Exchange Systems

As required in §63.11499, you must comply with the 

requirements for heat exchange systems as shown in the following 

table.

For... You must... Except...

1. Each heat 

exchange 

system with a 

cooling water 

flow rate 

≥8,000 gal/min 

and not 

meeting one or 

more of the 

conditions in 

§63.104(a)

a. Comply with the 

monitoring 

requirements in 

§63.104(c), the leak 

repair requirements 

in §63.104(d) and 

(e), and the 

recordkeeping and 

reporting 

requirements in 

§63.104(f); or

i. The reference to 

monthly monitoring for 

the first 6 months in 

§63.104(b)(1) and 

(c)(1)(iii) does not 

apply. Monitoring shall 

be no less frequent than 

quarterly;

ii. The reference in 

§63.104(f)(1) to record 

retention requirements 

in §63.103(c)(1) does 

not apply. Records must 

be retained as specified 

in §§63.10(b)(1) and 

63.11501(c); and

iii. The reference in 

§63.104(f)(2) to “the 

next semi-annual 
***E.O. 12866 Review-Draft-Do Not Cite, Quote or Release During Review***

Page 109 of 113

periodic report required 

by §63.152(c)” means the 

next semi-annual 

compliance report 

required by 

§63.11501(f).

b. Comply with the 

heat exchange system 

requirements in 

§63.104(b) and the 

requirements 

referenced therein.

i. Not applicable.

14. Table 9 to subpart VVVVVV of part 63 is amended by:

a. Revising the entry for 63.6(e)(1)(i) and (ii), (e)(3), 

and (f)(1);

b. Removing the entry for 63.7(a)(2), (b), (d), (e)(1)—

(e)(3);

c. Adding new entries for 63.7(a)(2), (b), (d), (e)(2)-

(e)(3) and 63.7(e)(1);

d. Removing the entry for 63.8(a)(1), (a)(4), (b), (c)(1)-

(c)(3), (f)(1)-(5);

e. Adding new entries for 63.8(a)(1), (a)(4), (b), 

(c)(1)(ii), (c)(2)-(c)(3), (f)(1)-(5), 63.8(c)(1)(i), and 

63.8(c)(1)(iii);

f. Revising the entry for 63.8(c)(4);

g. Removing the entry for 63.8(c)(6)-(c)(8), (d), (e), 

(f)(6);
***E.O. 12866 Review-Draft-Do Not Cite, Quote or Release During Review***

Page 110 of 113

h. Adding new entries for 63.8(c)(6)-(c)(8), (d)(1)-(d)(2), 

(e), (f)(6) and 63.8(d)(3);

i. Revising the entry for 63.8(g)(5);

j. Adding a new entry for 63.9(i);

k. Removing the entry for 63.10(b)(2)(i)—(b)(2)(v);

l. Adding new entries for 63.10(b)(2)(i), 63.10(b)(2)(ii), 

63.10(b)(2)(iii), and 63.10(b)(2)(iv) and (v);

m. Removing the entry for 63.10(c)(7)-(c)(8), (c)(10)-

(c)(12), (c)(15);

n. Adding new entries for 63.10(c)(7)-(8), 63.10(c)(10), 

63.10(c)(11), 63.10(c)(12), and 63.10(c)(15); and

o. Revising the entry for 63.10(d)(5).

The additions and revisions read as follows:

Table 9 to Subpart VVVVVV of Part 63--Applicability of General 

Provisions to Subpart VVVVVV

Citation Subject Applies to 

Subpart 

VVVVVV

Explanation

* * * * * * *

63.6(e)(1)(i) 

and (ii), 

(e)(3), and 

(f)(1)

SSM 

Requirements

No See §63.11495(d) for 

general duty 

requirement.

* * * * * * *

63.7(a)(2), 

(b), (d), 

(e)(2)—(e)(3)

Performance 

Testing 

Schedule, 

Notification 

of 

Performance 

Yes/No Requirements apply if 

conducting test for 

metal HAP control; 

requirements in 

§§63.997(c)(1), (d), 

(e), and 63.999(a)(1) 
***E.O. 12866 Review-Draft-Do Not Cite, Quote or Release During Review***

Page 111 of 113

Test, 

Performance 

Testing 

Facilities, 

and Conduct 

of 

Performance 

Tests

apply, as referenced 

in §63.11496(g), if 

conducting test for 

organic HAP or 

hydrogen halide and 

halogen HAP control 

device.

63.7(e)(1) Performance 

Testing

No See 

§63.11496(f)(3)(ii) 

if conducting a test 

for metal HAP 

emissions. See 

§§63.11496(g) and 

63.997(e)(1) if 

conducting a test for 

continuous process 

vents or for hydrogen 

halide and halogen 

emissions. See 

§§63.11496(g) and 

63.2460(c) if 

conducting a test for 

batch process vents.

63.8(a)(1), 

(a)(4), (b), 

(c)(1)(ii), 

(c)(2)-(c)(3), 

(f)(1)-(5)

Monitoring 

Requirements

Yes

63.8(c)(1)(i) General Duty 

to Minimize 

Emissions and 

CMS Operation

No

63.8(c)(1)(iii

)

Requirement 

to Develop 

SSM Plan for 

CMS

No

* * * * * * *

63.8(c)(4) Yes Only for CEMS. CPMS 

requirements in 40 

CFR part 63, subpart 

SS are referenced 

from §63.11496. 

Requirements for COMS 
***E.O. 12866 Review-Draft-Do Not Cite, Quote or Release During Review***

Page 112 of 113

do not apply because 

subpart VVVVVV does 

not require COMS.

* * * * * * *

63.8(c)(6)-

(c)(8), 

(d)(1)-(d)(2), 

(e), (f)(6)

Yes Requirements apply 

only if you use a 

continuous emission 

monitoring system 

(CEMS) to demonstrate 

compliance with the 

alternative standard 

in §63.11496(e).

63.8(d)(3) Written 

Procedures 

for CMS

Yes Requirement applies 

except for last 

sentence, which 

refers to an SSM 

plan. SSM plans are 

not required.

* * * * * * *

63.8(g)(5) No Data reduction 

requirements for CEMS 

are specified in 

§63.2450(j)(4), as 

referenced from 

§63.11496. CPMS 

requirements are 

specified in 40 CFR 

part 63, subpart SS, 

as referenced from 

§63.11496.

* * * * * * *

63.9(i) Yes

* * * * * * *

63.10(b)(2)(i) Recordkeeping 

of Occurrence 

and Duration 

of Startups 

and Shutdowns

No See §63.11501(c)(8) 

for recordkeeping of 

occurrence and 

duration of each 

startup and shutdown 

for continuous 

process vents that 

are subpart to Table 

3 to this subpart.

63.10(b)(2)(ii

)

Recordkeeping 

of 

No See 

§63.11501(c)(1)(vii) 
***E.O. 12866 Review-Draft-Do Not Cite, Quote or Release During Review***

Page 113 of 113

Malfunctions and (viii) for 

recordkeeping of (1) 

date, time, duration, 

and volume of excess 

emissions and (2) 

actions taken during 

malfunction.

63.10(b)(2)(ii

i)

Maintenance 

Records

Yes

63.10(b)(2)(iv

) and (v)

Actions Taken 

to Minimize 

Emissions 

During SSM

No

* * * * * * *

63.10(c)(7)-

(8)

Additional 

Recordkeeping 

Requirements

for CMS –

Identifying 

Exceedances 

and Excess 

Emissions

Yes

63.10(c)(10) Recordkeeping 

Nature and 

Cause of 

Malfunctions

No See 

§63.11501(c)(1)(vii) 

and (viii) for 

malfunctions 

recordkeeping 

requirements.

63.10(c)(11) Recording 

Corrective 

Actions

No See 

§63.11501(c)(1)(vii) 

and (viii) for 

malfunctions 

recordkeeping 

requirements.

63.10(c)(12) Yes

63.10(c)(15) Use of SSM 

Plan

No

* * * * * * *

63.10(d)(5) SSM Reports No See §63.11501(d)(8) 

for reporting 

requirements for 

malfunctions.

* * * * * * *