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EO12866_Pulp_and_Paper_2060-

AQ41_FinalRule_Revised_7.16.12clean.docx

6560-50-P

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 63

[EPA-HQ-OAR-2007-0544; FRL-9684-7]

RIN 2060–AQ41

National Emission Standards for Hazardous Air Pollutants 

from the Pulp and Paper Industry

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

SUMMARY: This action finalizes the residual risk and technology 

review conducted for the pulp and paper industry source category 

regulated under national emission standards for hazardous air 

pollutants. The EPA is required to conduct residual risk and 

technology reviews under sections 112(d)(6) and (f)(2) of the 

Clean Air Act. This action finalizes amendments to the national 

emission standards for hazardous air pollutants that include a 

requirement for 5-year repeat emissions testing for selected 

process equipment; revisions to provisions addressing periods of 

startup, shutdown and malfunction; a requirement for electronic 

reporting; additional test methods for measuring methanol

emissions; and technical and editorial changes. The amendments 

are expected to ensure that control systems are properly 

maintained over time, ensure continuous compliance with 
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standards and improve data accessibility at a nationwide cost of 

$2.1 million per year.

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

PUBLICATION OF THIS FINAL RULE IN THE FEDERAL REGISTER]. The 

incorporation by reference of certain publications listed in 

this rule is approved by the Director of the Federal Register as 

of [INSERT DATE OF PUBLICATION OF THIS FINAL RULE IN THE FEDERAL 

REGISTER].

ADDRESSES: The EPA has established a docket for this action 

under Docket ID Number EPA–HQ–OAR–2007–0544. All documents in 

the docket are listed on the http://www.regulations.gov website. 

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, is not placed on 

the Internet and will be publicly available only in hard copy 

form. Publicly available docket materials are available either 

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

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

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

Reading Room hours of operation are 8:30 a.m. to 4:30 p.m. 

Eastern Standard Time, Monday through Friday. The telephone 

number for the Public Reading Room is (202) 566–1744, and the 
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telephone number for the Air and Radiation Docket and 

Information Center is (202) 566–1742.

FOR FURTHER INFORMATION CONTACT: For questions about this final 

action, contact Mr. John Bradfield, Office of Air Quality 

Planning and Standards, (E143-03), U.S. Environmental Protection 

Agency, Research Triangle Park, North Carolina 27711; telephone 

number: (919) 541-3062; fax number: (919) 541-3470; and email 

address: bradfield.john@epa.gov.

SUPPLEMENTARY INFORMATION: For specific information regarding 

the risk modeling methodology, contact Mr. James Hirtz, Health 

and Environmental Impacts Division (C539-02), Office of Air 

Quality Planning and Standards, U.S. Environmental Protection 

Agency, Research Triangle Park, North Carolina 27711; telephone 

number: (919) 541–0881; fax number: (919) 541–0840; and email 

address: hirtz.james@epa.gov. For information about the 

applicability of the national emission standards for hazardous 

air pollutants to a particular entity, contact the appropriate 

person listed in Table 1 to this preamble.

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

FINAL ACTION

NESHAP for: OECA Contact1 OAQPS Contact2

Pulp and Paper Sara Ayres

(202)564-5391

ayres.sara@epa.gov

John Bradfield

(919) 541-3062 

bradfield.john@epa.gov

1 EPA’s Office of Enforcement and Compliance Assurance.

2 EPA’s Office of Air Quality Planning and Standards.
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Preamble Acronyms and Abbreviations. Several acronyms and terms 

used to describe industrial processes, data inventories and risk 

modeling are included in this preamble. 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:

ANSI American National Standards Institute

ASME American Society of Mechanical Engineers

ASTM American Society for Testing and Materials

CAA Clean Air Act

CBI Confidential Business Information

CCA Clean Condensate Alternative

CDX EPA’s Central Data Exchange

CEDRI EPA’s Compliance and Emissions Data Reporting 

Interface

CFR Code of Federal Regulations

CO Carbon Monoxide

CWA Clean Water Act

DC District of Columbia

D.C. Cir. United States Court of Appeals for the District of 

Columbia Circuit

EIA Economic Impact Analysis

EJ Environmental Justice

EPA Environmental Protection Agency

ERT Electronic Reporting Tool

FR Federal Register

FTIR Fourier Transform Infrared

HAP Hazardous Air Pollutants

HVLC High Volume Low Concentration

IBR Incorporation by Reference

ICR Information Collection Request

km Kilometer

LVHC Low Volume High Concentration

MACT Maximum Achievable Control Technology

MACT Code Code within the NEI used to identify processes

included in a source category

MMBtu Million British Thermal Units 

NAICS North American Industry Classification System

NCASI National Council for Air and Stream Improvement

NEI National Emissions Inventory
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NESHAP National Emissions Standards for Hazardous Air 

Pollutants

NOX Nitrogen Oxides

NPDES National Pollutant Discharge Elimination System

NRDC Natural Resources Defense Council

NTTAA National Technology Transfer and Advancement Act of 

1995

NW Northwest

OAQPS EPA’s Office of Air Quality Planning and Standards

ODP Oven-Dried Pulp

ODTP Oven-Dried Ton of Pulp

OECA EPA’s Office of Enforcement and Compliance

Assurance

OMB Office of Management and Budget

O&M Operations and Maintenance 

PM Particulate Matter

ppmw Parts Per Million by Weight

PRA Paperwork Reduction Act

RFA Regulatory Flexibility Act

RIA Regulatory Impact Analysis

RTR Residual Risk and Technology Review

S. Ct. United States Supreme Court

SBA Small Business Administration

SO2 Sulfur Dioxide

SISNOSE Significant Economic Impact on a Substantial Number 

of Small Entities

SSM Startup, Shutdown, and Malfunction

the Court United State Court of Appeals for the District of 

Columbia Circuit

TOSHI Target Organ-Specific Hazard Index

tpy Tons Per Year

TTN EPA’s Technology Transfer Network

UMRA Unfunded Mandates Reform Act of 1995

U.S. United States

U.S.C. United States Code

VCS Voluntary Consensus Standards

WWW Worldwide Web

yr Year

Background Information Document. On December 27, 2011 (76 FR

81328), the EPA proposed revisions to the pulp and paper 

industry NESHAP based on evaluations performed by the EPA in 

order to conduct our residual risk and technology review. In 
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this action, we are finalizing decisions and revisions for the 

rule. A summary of the public comments on the proposal and the 

EPA’s responses to those comments is available in Docket ID 

Number EPA-HQ-OAR-2007-0544. 

Organization of this Document. The following outline is provided 

to aid in locating information in the preamble. 

I. General Information

A. Does this action apply to me?

B. Where can I get a copy of this document?

C. Judicial Review

II. Background

III. Summary of the Final Rule

A. What are the final rule amendments for the pulp and paper 

industry source category?

B. What are the requirements during periods of startup, shutdown 

and malfunction? 

C. What are the effective and compliance dates of the standards?

D. What are the requirements for submission of performance test 

data to the EPA?

IV. Summary of Significant Changes Since Proposal 

A. Changes to the Risk Assessment Performed under CAA Section 

112(f) 

B. Changes to the Technology Review Performed under CAA Section 

112(d)(6)

C. Other Changes Since Proposal

V. Summary of Cost, Environmental, and Economic Impacts 

A. What are the affected facilities?

B. What are the air quality impacts?

C. What are the cost impacts?

D. What are the economic impacts?

E. What are the benefits?

VI. Statutory and Executive Order Reviews

A. Executive Orders 12866: Regulatory Planning and Review, and 

Executive Order 13563: Improving Regulation and Regulatory 

Review
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B. Paperwork Reduction Act

C. Regulatory Flexibility Act

D. Unfunded Mandates Reform Act

E. Executive Order 13132: Federalism

F. Executive Order 13175: Consultation and Coordination With 

Indian Tribal Governments

G. Executive Order 13045: Protection of Children From 

Environmental Health Risks and Safety Risks

H. Executive Order 13211: Actions Concerning Regulations That

Significantly Affect Energy Supply, Distribution, or Use

I. National Technology Transfer and Advancement Act

J. Executive Order 12898: Federal Actions To Address 

Environmental Justice in Minority Populations and Low-Income

Populations

K. Congressional Review Act

I. General Information

A. Does this action apply to me?

Regulated Entities. Categories and entities potentially 

regulated by this action are shown in Table 2 of this preamble.

TABLE 2. NESHAP and Industrial Source Categories Affected By 

This Final Action

NESHAP and Source Category NAICS code1 MACT code2

Pulp and Paper (Subpart S) 322 1626-1

1 North American Industry Classification System

2 Maximum Achievable Control Technology

Table 2 of this preamble is not intended to be exhaustive 

but rather provides a guide for readers regarding entities 

likely to be affected by the final action for the source 

category listed. To determine whether your facility would be 

affected, you should examine the applicability criteria in the 

appropriate NESHAP. As defined in the Source Category Listing 

Report published by the EPA in 1992, the pulp and paper 
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production source category includes any facility engaged in the 

production of pulp and/or paper.1 This category includes, but is 

not limited to, integrated mills (where pulp and paper or 

paperboard are manufactured on-site), non-integrated mills 

(where either pulp or paper/paperboard are manufactured on-site, 

but not both), and secondary fiber mills (where waste paper is 

used as the primary raw material). Examples of pulping methods 

include kraft, soda, sulfite, semi-chemical and mechanical.

If you have any questions regarding the applicability of 

this NESHAP, please contact the appropriate person listed in the 

preceding FOR FURTHER INFORMATION CONTACT section.

B. Where can I get a copy of this document?

In addition to being available in the docket, an electronic 

copy of this final action will also be available on the WWW 

through the TTN. Following signature, a copy of the final action 

will be posted on the TTN’s policy and guidance page for newly

proposed and promulgated rules at the following address: 

http://www.epa.gov/ttn/caaa/new.html. The TTN provides

information and technology exchange in various areas of air 

pollution control.

Additional information is available on the RTR web page at 

http://www.epa.gov/ttn/atw/rrisk/rtrpg.html. This information 

 

1 USEPA. Documentation for Developing the Initial Source Category List—Final 

Report, USEPA/OAQPS, EPA–450/3–91–030, July, 1992.
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includes source category descriptions and detailed emissions and

other data that were used as inputs to the risk assessments.

C. Judicial Review

Under section 307(b)(1) of the CAA, judicial review of this 

final action is available only by filing a petition for review 

in the Court by [INSERT DATE 60 DAYS FROM DATE OF PUBLICATION OF 

THIS FINAL RULE IN THE FEDERAL REGISTER]. Under section 

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

final rules may not be challenged separately in any civil or 

criminal proceedings brought by the EPA to enforce the 

requirements.

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

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

with reasonable specificity during the period for public comment 

(including any public hearing) may be raised during judicial 

review.” This section also provides a mechanism for us to 

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

raising an objection can demonstrate to EPA that it was 

impracticable to raise such objection within [the period for 

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

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

judicial review) and if such objection is of central relevance 

to the outcome of the rule.” Any person seeking to make such a 
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demonstration to us should submit a Petition for Reconsideration 

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

Rios Building, 1200 Pennsylvania Ave., NW, Washington, DC 20460, 

with a copy to both the person(s) listed in the preceding FOR 

FURTHER INFORMATION CONTACT section and the Associate General 

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

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

Washington, DC 20460.

II. Background

Section 112 of the CAA establishes a two-stage regulatory 

process to address emissions of HAP from stationary sources. In 

the first stage, after the EPA has identified categories of 

sources emitting one or more of the HAP listed in CAA section 

112(b), CAA section 112(d) calls for EPA to promulgate NESHAP 

for those sources. “Major sources” are those that emit or have 

the potential to emit 10 tpy or more of a single HAP or 25 tpy 

or more of any combination of HAP. For major sources, these 

technology-based standards must reflect the maximum degree of 

emissions reductions of HAP achievable (after considering cost, 

energy requirements and nonair quality health and environmental 

impacts) and are commonly referred to as MACT standards.

For MACT standards, the statute specifies certain minimum 

stringency requirements, which are referred to as floor 
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requirements and may not be based on cost considerations. See 

CAA section 112(d)(3). For new sources, the MACT floor cannot be 

less stringent than the emission control that is achieved in 

practice by the best controlled similar source. The MACT 

standards for existing sources can be less stringent than floors 

for new sources but they cannot be less stringent than the 

average emission limitation achieved by the best-performing 12 

percent of existing sources in the category or subcategory (or 

the best-performing five sources for categories or subcategories 

with fewer than 30 sources). In developing MACT, we must also 

consider control options that are more stringent than the floor 

under CAA section 112(d)(2). We may establish standards more 

stringent than the floor, based on the consideration of the cost 

of achieving the emissions reductions, any nonair quality health 

and environmental impacts and energy requirements. In 

promulgating MACT standards, CAA section 112(d)(2) directs us to

consider the application of measures, processes, methods,

systems or techniques that reduce the volume of or eliminate HAP

emissions through process changes, substitution of materials or

other modifications; enclose systems or processes to eliminate

emissions; collect, capture or treat HAP when released from a

process, stack, storage or fugitive emissions point; and/or are

design, equipment, work practice or operational standards.
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In the second stage of the regulatory process, we undertake

two different analyses, as required by the CAA. First, section

112(d)(6) of the CAA calls for us to review the technology-based

standards and to revise them “as necessary (taking into account

developments in practices, processes, and control technologies)”

no less frequently than every 8 years. Second, within 8 years 

after promulgation of the technology-based standards, CAA 

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

health remaining after application of the technology-based 

standards and to revise the standards, if necessary, to provide 

an ample margin of safety to protect public health or to 

prevent, taking into consideration costs, energy, safety and 

other relevant factors, an adverse environmental effect. Under 

section 112(f)(2), the EPA may re-adopt the existing MACT 

standards if the EPA determines that those standards are 

sufficiently protective. Natural Resources Defense Council 

(NRDC) v. EPA, 529 F.3d 1077, 1083 (D.C. Cir. 2008).

On December 27, 2011, the EPA published a proposed rule in 

the Federal Register for the pulp and paper industry NESHAP, 40 

CFR part 63, subpart S based on the RTR analyses that EPA 

conducted under CAA sections 112(d)(6) and 112(f)(2) (76 FR 

81328). Today’s action provides the EPA’s final determinations 
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and regulatory amendments pursuant to the RTR provisions of CAA 

section 112. 

In addition, several other aspects of the Subpart S MACT 

rule were reviewed and considered for revision at proposal, and 

after review of the public comment received we are taking the 

following actions:

 Finalizing the requirement for 5-year repeat emissions testing 

for selected process equipment.

 Revising the requirements in the NESHAP related to emissions 

during periods of SSM.

 Finalizing the requirement for electronic reporting of 

performance test data.

 Adding test methods for measuring methanol emissions.

 Finalizing changes to address technical and editorial

corrections in the rule.

III. Summary of the Final Rule

A. What are the final rule amendments for the pulp and paper 

industry source category?

The NESHAP for the pulp and paper industry was promulgated 

on April 15, 1998 (63 FR 18504). The standards are codified at 

40 CFR part 63, subpart S. The pulp and paper industry consists 

of facilities engaged in the production of pulp and/or 

paper/paperboard. This category includes, but is not limited to, 

integrated mills (where pulp and paper or paperboard are 

manufactured on-site), non-integrated mills (where 

paper/paperboard or pulp are manufactured, but not both), and 
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secondary fiber mills (where waste paper is used as the primary 

raw material). The subpart S MACT standard applies to major 

sources of HAP emissions from the pulp production areas (e.g., 

pulping system vents, pulping process condensates) at chemical, 

mechanical, secondary fiber and non-wood pulp mills; bleaching 

operations; and papermaking systems. A separate NESHAP (40 CFR 

part 63, subpart MM) applicable to chemical recovery processes 

at kraft, soda, sulfite and stand-alone semi-chemical pulp mills 

was promulgated on January 12, 2001 (66 FR 3180). Today’s rule 

takes final action only with respect to the RTR for subpart S.

The source category covered by subpart S includes 171 

facilities. As explained below, we are re-adopting the MACT 

standards pursuant to section 112(f)(2). In developing the 

proposed rule, we evaluated developments in practices, processes 

and control technologies applicable to all the emission sources 

subject to the pulp and paper MACT. After reviewing the comments 

provided at proposal, we have determined that our conclusion 

that there have been no developments in practices, processes, 

and control technologies since the subpart S standard was 

originally promulgated was correct. Although we proposed 

revisions to the kraft pulping process condensate standards 

based on our conclusion at proposal that existing technologies 

were achieving greater than the 92 percent minimum level of 
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control, we reanalyzed the performance data and impacts of 

revising the kraft condensate standards in response to public 

comments and have decided not to promulgate amendments to those 

standards. Consequently, we are not revising the MACT standards 

for Subpart S pursuant to our 112(d)(6) review as explained 

further below.

In addition, this section describes the final amendments to 

the pulp and paper industry NESHAP. These revisions include the 

addition of repeat emissions testing for selected process 

equipment; changes to the requirements that apply during periods 

of SSM; the addition of electronic reporting requirements; and 

various minor changes to address technical and editorial 

corrections.

1. Repeat Emissions Testing

As part of an ongoing effort to improve compliance with 

various federal air emission regulations, we are adding 40 CFR 

63.457(a)(2) to require repeat air emissions performance testing 

once every 5 years for facilities complying with the standards 

for kraft, soda and semi-chemical pulping vent gases (40 CFR 

63.443(a)); sulfite processes (40 CFR 63.444); and bleaching 

systems (40 CFR 63.445). Repeat performance tests are already 

required by permitting authorities for some facilities.2

 

2 Located in 11 states.
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Requiring periodic repeat performance tests will help to ensure 

that control systems are maintained properly over time and a 

more rigorous testing requirement will better assure compliance 

with the standard.

3

In this action, repeat air emissions testing will be 

required for mills complying with the kraft pulping process 

condensate standards in 40 CFR 63.446 using a steam stripper 

since stripper off-gases are, by definition, part of the LVHC 

system. We are clarifying repeat air emissions testing will not 

be required for: (1) knotter or screen systems with HAP emission 

rates below the criteria specified in 40 CFR 63.443(a)(1)(ii); 

or (2) decker systems using fresh water or paper machine white 

water, or decker systems using process water with a total HAP 

concentration less than 400 ppmw as specified in 40 CFR 

63.443(a)(1)(iv).

2. Startup, Shutdown and Malfunction

We are also finalizing changes to the subpart S NESHAP to 

eliminate the SSM exemption, as discussed further in section 

III.B below. The changes include:

(1) Revising 40 CFR 63.443(e), 63.446(g) and 

63.459(b)(11)(ii) to eliminate reference to periods of SSM;

 

3 For information on the cost associated with the repeat testing requirement, 

see the memorandum in the docket titled, Costs, Environmental, and Energy 

Impacts for the Promulgated Subpart S Risk and Technology Review.
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(2) Revising 40 CFR 63.453(q) to incorporate the general 

duty from 40 CFR 63.6(e)(1)(i) to minimize emissions;

(3) Adding 40 CFR 63.454(g), and 40 CFR 63.455(g) to 

require reporting and recordkeeping requirements associated with 

periods of malfunction;

(4) Adding 40 CFR 63.456 (formerly reserved) to include an 

affirmative defense to civil penalties for violations of 

emissions limits caused by malfunctions that meet the criteria 

for establishing the affirmative defense;

(5) Adding 40 CFR 63.457(o) to specify the conditions for 

performance tests; and

(6) Revising Table 1 to specify that 40 CFR 63.6 (e)(1)(i) 

and (ii), 40 CFR 63.6(e)(3), 40 CFR 63.6(f)(1); 40 CFR 

63.7(e)(1), 40 CFR 63.8(c)(1)(i) and (iii), and the last 

sentence of 40 CFR 63.8(d)(3); 40 CFR 63.10(b)(2)(i), (ii), (iv) 

and (v); 40 CFR 63.10(c)(10), (11) and (15); and, 40 CFR 

63.10(d)(5) of the General Provisions do not apply.

3. Electronic Reporting

To increase the ease and efficiency of data submittal and 

improve data accessibility, we are requiring mills to submit 

electronic copies of performance test reports to EPA’s WebFIRE 

database, as discussed in section III.D below. The electronic 

reporting requirement is being added under 40 CFR 63.455(h).
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4. Additional Test Methods for Measuring Methanol Emissions

To allow mills greater flexibility in demonstrating 

compliance with emission limits for total HAP measured as 

methanol, we are revising 40 CFR 63.457(b)(5)(i) to include four 

additional test methods for measuring methanol emissions from 

pulp and paper processes, as alternatives to EPA Method 308 of 

part 63, appendix A. The four additional test methods are:

(1) Method 18 of part 60, appendix A–6;

(2) Method 320 of part 63, appendix A;

(3) ASTM D6420–99, determined to be an acceptable 

alternative to EPA Method 18; and

(4) ASTM D6348–03, determined to be an acceptable 

alternative to EPA Method 320.

We are also revising 40 CFR 63.14(b)(28) and (b)(54) to IBR 

ASTM D6420–99 and ASTM D6348–03, respectively.

5. Other

We are also finalizing the following minor changes to the 

subpart S NESHAP and part 63 General Provisions to address 

technical and editorial corrections:

(1) Revising 40 CFR 63.457(b)(1) to specify part 60, 

appendix A–1 for Method 1 or 1A;

(2) Revising 40 CFR 63.457(b)(3) to specify part 60, 

appendix A–1 for Method 2, 2A, 2C or 2D;
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(3) Revising 40 CFR 63.457(b)(5)(ii) to specify part 60, 

appendix A–8 for Method 26A;

(4) Revising 40 CFR 63.457(d) to specify part 60, appendix 

A–7 for Method 21;

(5) Revising 40 CFR 63.457(k)(1) to specify part 60, 

appendix A–2 for Method 3A or 3B, and include ASME PTC 19.10—

part 10 as an alternative to Method 3B;

(6) Revising 40 CFR 63.457(c)(3)(ii) to replace NCASI 

Method DI/MEOH–94.02 with the more recent version of this 

method, NCASI Method DI/MEOH–94.03;

(7) Adding 40 CFR 63.14(f)(5) to IBR NCASI Method DI/MEOH–

94.03; and

(8) Revising 40 CFR 63.14(i)(1) to incorporate by reference 

ANSI/ASME PTC 19.10–1981.

(9) Revising Table 1 so it aligns more closely to the 

sections in subpart A which have been amended or reserved over 

time.

B. What are the requirements during periods of startup, shutdown 

and malfunction?

In 2008, the Court vacated portions of two provisions in 

EPA’s CAA section 112 regulations governing the emissions of HAP 

during periods of SSM. Sierra Club v. EPA, 551 F.3d 1019 (D.C. 

Cir. 2008), cert. denied, 130 S. Ct. 1735 (U.S. 2010). 
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Specifically, the Court vacated the SSM exemption contained in 

40 CFR 63.6(f)(1) and 40 CFR 63.6(h)(1), that are part of a 

regulation, commonly referred to as the “General Provisions 

Rule,” that the EPA promulgated under section 112 of the CAA. 

When incorporated into CAA section 112(d) regulations for 

specific source categories, these two provisions exempt sources 

from the requirement to comply with the otherwise applicable CAA 

section 112(d) emission standard during periods of SSM.

Consistent with Sierra Club v. EPA, we have eliminated the 

SSM exemption in this rule. We have also revised Table 1 (the 

General Provisions table) in several respects. For example, we 

have eliminated the General Provisions’ requirement that the 

source develop a SSM plan. We have also eliminated or revised 

certain recordkeeping and reporting that related to the SSM 

exemption. The EPA has attempted to ensure that we have not 

included in the regulatory language any provisions that are 

inappropriate, unnecessary or redundant in the absence of the 

SSM exemption.

In establishing the standards for startup and shutdown, we

reviewed the information available to us from the 2011 pulp and 

paper ICR pertaining to equipment, control and compliance 

demonstration methods during startup and shutdown. Some 

commenters suggested that we establish different standards for 
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periods of startup and shutdown. However, the information 

available to us regarding startup and shutdown does not show 

that emissions are higher during startup or shutdown or indicate 

a need for alternate standards for these periods. Further, the 

commenters have not shown that sources cannot comply with the 

standards as proposed and have not provided information to 

support development of alternative standards that would apply 

during startup and shutdown periods. 

Our findings relative to startup and shutdown for the universe 

of pulp and paper processes regulated under subpart S (which 

offers a variety of compliance options) are discussed in detail 

in the response-to-comments document and in a memorandum in the 

docket5. Based upon these findings, and consistent with our 

proposal, the EPA has not established different standards for 

startup and shutdown periods.

Periods of startup, normal operations and shutdown are all 

predictable and routine aspects of a source’s operations. 

However, by contrast, malfunction is defined as a “sudden, 

infrequent, and not reasonably preventable failure of air 

pollution control and monitoring equipment, process equipment or 

a process to operate in a normal or usual manner * * *” (40 CFR 

 

5 See Review of Pulp and Paper Information Collection Request (ICR) Responses 

Pertaining to Startup and Shutdown of Subpart S Equipment, in the docket for 

the subpart S rulemaking.
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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. Under 

section 112, emissions standards for new sources must be no less 

stringent than the level “achieved” by the best controlled 

similar source and for existing sources generally must be no 

less stringent than the average emission limitation “achieved” 

by the best performing 12 percent of sources in the category. 

There is nothing in 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.

Further, accounting for malfunctions would be difficult, if 

not impossible, given the myriad different types of malfunctions 
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that can occur across all sources in the category and given the 

difficulties associated with predicting or accounting for the 

frequency, degree and duration of various malfunctions that 

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

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

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

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 
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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 violations. The EPA 

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

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

infrequent, not reasonably preventable” and was not instead 

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

CFR 63.2 (definition of malfunction).

Finally, the EPA recognizes that even equipment that is 

properly designed and maintained can sometimes fail and that 

such failure can sometimes cause a violation of the relevant 

emission standard. (See, e.g., State Implementation Plans: 

Policy Regarding Excessive Emissions During Malfunctions, 

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

Emissions During Startup, Shutdown, Maintenance, and 

Malfunctions (Feb. 15, 1983)). The EPA is therefore adding to 
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the final rule an affirmative defense to civil penalties for 

violations of emission standards that are caused by 

malfunctions. See 40 CFR 63.441 (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 63.456. (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 certain criteria. For example, to successfully assert the 

affirmative defense, the source must prove by a preponderance of 

the evidence that the violation 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....” The criteria also are designed to 

ensure that steps are taken to correct the malfunction, to 

minimize emissions in accordance with 40 CFR 63.456 and to 

prevent future malfunctions. For example, the source must prove 
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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 22.27). 

The EPA is including an affirmative defense in the final 

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

of air regulation, to ensure adequate compliance while 

simultaneously recognizing that despite the most diligent of 

efforts, emission standards 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 standards are continuous. The 

affirmative defense for malfunction events meets this 
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requirement by ensuring that even where there is a malfunction, 

the emission standard is still enforceable through injunctive 

relief. While “continuous” standards, 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 

“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 CWA 

setting, the Ninth Circuit required this type of formalized 
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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. United 

States 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 

standards are “continuous” as required by 42 U.S.C. 7602(k), and 

account for unplanned upsets and thus support the reasonableness 

of the standard as a whole.

Several commenters combined the comments they provided on 

SSM issues with comments regarding the excess emissions 

allowance provisions in 40 CFR 63.443 and 63.446 of subpart S. 

Later in this preamble we discuss the separate action we are 

planning to address these excess emissions allowance provisions.

C. What are the effective and compliance dates of the standards?

The revisions to subpart S being promulgated in this action 

are effective on [INSERT DATE OF PUBLICATION OF THIS FINAL RULE 

IN THE FEDERAL REGISTER]. The compliance date for the revised 

SSM requirements is the effective date of the standards, [INSERT 

DATE OF PUBLICATION OF THIS FINAL RULE IN THE FEDERAL REGISTER]. 
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The first of the 5-year repeat tests must be conducted within 36 

months of the effective date of the standards, by [INSERT DATE 

36 MONTHS AFTER DATE OF PUBLICATION OF THIS FINAL RULE IN THE 

FEDERAL REGISTER], and thereafter within 60 months from the date 

of the previous performance test. The date to submit performance 

test data through ERT is within 60 days after the date of 

completing each performance test.

D. What are the requirements for submission of performance test 

data to the EPA?

As stated in the proposed rule preamble, the EPA is taking 

a step to increase the ease and efficiency of data submittal and 

data accessibility. Specifically, the EPA is requiring owners 

and operators of pulp and paper facilities to submit electronic 

copies of required performance test reports. 

As mentioned in the proposed rule preamble, data will be 

collected through an electronic emissions test report structure 

called the ERT. The ERT will generate an electronic report, 

which will be submitted to the EPA’s CDX through the CEDRI. A 

description of the ERT can be found at: 

http://www.epa.gov/ttn/chief/ert/index.html, and CEDRI can be 

accessed through the CDX website: (http://www.epa.gov/cdx). 

The requirement to submit performance test data 

electronically to the EPA does not create any additional 

performance testing and will apply only to those performance 
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tests conducted using test methods that are supported by the 

ERT. A listing of the pollutants and test methods supported by 

the ERT is available at the previously mentioned ERT website.

Through this approach, industry is expected to save time in the 

performance test submittal process. Additionally this rulemaking 

benefits industry by cutting back on recordkeeping costs as the 

performance test reports that are submitted to the EPA using 

CEDRI are no longer required to be kept on site. 

As mentioned in the proposed rule preamble, state, local 

and tribal agencies will benefit from more streamlined and 

accurate review of electronic data that will be available on the 

EPA WebFIRE database. Additionally, performance test data will 

become available to the public through WebFIRE. Having such data 

publicly available enhances transparency and accountability. The 

major advantages of electronic reporting are more fully 

explained in the proposed rule preamble (76 FR 81348). 

In summary, in addition to supporting regulation 

development, control strategy development and other air 

pollution control activities, having an electronic database 

populated with performance test data will save industry, state, 

local, tribal agencies and the EPA significant time, money and 

effort, while improving the quality of emissions inventories 

and, as a result, air quality regulations.
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IV. Summary of Significant Changes Since Proposal 

A. Changes to the Risk Assessment Performed under CAA Section 

112(f)

As noted at proposal (76 FR 81344), the risk analysis 

performed for the pulp and paper source category indicated that 

the cancer risks to the individual most exposed are no higher 

than 10 in 1 million due to actual or MACT-allowable emissions. 

These risks are considerably less than 100 in 1 million, which 

is the presumptive upper limit of risk acceptability. The risk 

analysis also showed generally low cancer incidence (1 case 

every 100 years); no potential for adverse environmental effects 

or human health multipathway effects; no potential for chronic 

noncancer impacts; and, as explained in the proposal and further 

below, while a potential exists for some acute inhalation 

impacts, they are likely to be minimal.

Our analysis of facility-wide risks showed five mills with 

maximum chronic cancer risks between 10 and 30 in 1 million and 

four mills with maximum chronic noncancer TOSHI between 1 and 2.

For the facility with the highest facility-wide risk (i.e. 30 in 

1 million), emissions from the pulp and paper (subpart S) source 

category only contributed 27 percent to the chronic cancer risk 

and 23 percent to the chronic non-cancer risk. The number of 

people exposed to cancer risks of 1 in 1 million or greater due 

to emissions from the source category was determined to be 
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relatively low (76,000). Considering all of this health 

information and the uncertainties discussed in the proposal 

preamble (76 FR 81338-40), the risks from the pulp and paper 

source category were deemed to be acceptable. 76 FR 81344.

Under the ample margin of safety analysis, we considered 

all of the health information discussed above, and the

feasibility of available control technologies and other measures 

that could be applied to this source category to further reduce 

the risks due to emissions of HAP identified in our risk 

assessment. We did not identify any HAP emissions reduction 

measures that could feasibly be used to further reduce risk in 

our review of the practices, processes, and controls used in the 

pulp and paper industry.

6 We concluded that the current standard, 

in the absence of any further amendments, protected public 

health with an ample margin of safety. (76 FR 81344) 

We solicited comment on the proposal (76 FR 81349-51), 

asking for any additional data that may help to reduce the 

uncertainties inherent in the risk assessments and other 

analyses. We were specifically interested in receiving 

 

6 The practices, processes, and controls described in our 112(d)(6) technology 

review are also relevant for the residual risk review. Our conclusions 

regarding the feasibility of additional technologies for pulp and paper 

processes are documented in the following memoranda in the docket: (1) Costs, 

Environmental, and Energy Impacts for the Promulgated Subpart S Risk and 

Technology Review; (2) Section 112(d)(6) Technology Review for Pulping and 

Papermaking Processes; and (3) Summary of Pulp Bleaching Technology Review. 

Risks identified from emission sources evaluated for further emission 

reduction in these two memoranda are characterized in the Residual Risk 

Assessment for the Pulp & Paper Source Category.
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corrections to the mill-specific HAP emissions data used in the 

risk modeling. The mill-specific emissions data were available 

for download on EPA’s RTR web page at: 

http://www.epa.gov/ttn/atw/rrisk/rtrpg.html. Commenters on the 

subpart S proposal were asked to determine whether any of the 

data were unrepresentative or inaccurate and to submit their 

comments on the data downloaded from the RTR web page.

A total of 81 mills submitted specific revisions to their 

mill-specific data. The EPA reviewed the data revisions to 

determine whether they would influence the outcome of the risk 

assessment results as proposed. In general, the mills that 

submitted data revisions appear to have lowered their risk by 

reducing emissions, removing pollutants, changing emission 

release point type from fugitive to stack and/or changing 

stack/fugitive parameters, among other changes. Based on the 

review, we have concluded that the results of remodeling risk 

would most likely adjust the risk results for the subpart S 

source category downward (i.e., reduce risk). Because of this, 

we have elected not to remodel risk for purposes of promulgating 

the subpart S residual risk review but instead to rely on the 

conclusions from the risk modeling conducted for the proposed 

rule. A memorandum for the docket was prepared that summarizes 

the data revisions received and supports the decision not to 
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remodel risk.7 A separate document presents the results of EPA’s 

risk analysis.9 We conclude based the Residual Risk Assessment 

cited here that the risks from the subpart S pulp and 

papermaking source category are acceptable and that the current 

standard protects the public health with an ample margin of 

safety. Consequently, we are re-adopting the MACT standards for 

Subpart S pursuant to our 112(f)(2) review.

B. Changes to the Technology Review Performed under CAA Section 

112(d)(6)

In our December 27, 2011, proposal, as the result of our 

initial technology review, we proposed strengthening the kraft 

pulping process condensate standards in 40 CFR 63.446 by 

increasing the HAP removal requirement from 92 to 94 percent (or 

an equivalent pound/ODTP or ppmw limit). Several commenters 

opposed the proposed revisions to the kraft pulping process 

condensate standards, for the following reasons. First, the 

commenters questioned the calculation methodology used in 

deriving the proposed equivalent pound/ODTP limits for kraft 

pulping process condensates, pointing out that the calculation 

methodology resulted in HAP reductions that exceeded the amount 

of HAP required to be collected under the standard. 

 

7 See the memorandum in the docket titled, Recommendations Concerning Residual 

Risk Remodeling for the Pulp and Paper Industry.

9 See Residual Risk Assessment for the Pulp & Paper Source Category, in the 

docket for the subpart S rulemaking.
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Second, the commenters stated that the EPA had 

misinterpreted the data from its 2011 ICR in setting the 

proposed 94 percent reduction limit for kraft pulping process 

condensates. The commenters stated that the EPA: (1) failed to 

consider variability in biological treatment system performance, 

including the collection of additional condensates to maintain 

compliance flexibility and the use of safety margins in 

biological treatment to demonstrate ongoing compliance over the 

wide range of operational situations that occur at mills; (2) 

failed to consider the degradation of steam stripper performance 

over time, due to fouling or scaling of heat transfer surfaces 

in contact with process condensates which would not likely be 

accounted for in initial performance tests; and (3) failed to 

consider the impacts of the proposed standards on CCA mills by 

inappropriately ascribing surplus control achieved in both the 

Phase 1 and Phase 2 treatment values at CCA mills to improved 

performance in control processes used to meet the Phase 1 

treatment requirements in the standard.10 

 

10 The CCA is a pollution prevention alternative emission limit for pulping 

vents that is available only to kraft HVLC systems. The CCA allows mills to 

meet the HVLC emission limits by reducing the HAP concentration in the 

process waters that are recycled to other pieces of process equipment. This 

approach allows mills to control HAP emissions by reducing the amount of HAPs 

that are volatilized from selected process equipment instead of using 

combustion devices to control HVLC system vent streams. By reducing the HAP

concentration in process water, the amounts of volatilized HAPs are also 

reduced. To achieve compliance, the facility must demonstrate that the HAP 

emission reductions using the CCA technology are equal to or greater than 

those emission reductions that would have been achieved through compliance 
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Third, commenters stated that the EPA had underestimated 

the cost and energy impacts to comply with the more stringent 

proposed percent reduction limit, including the cost to achieve 

the necessary percent reduction and the number of mills that 

would actually be impacted, considering variability and impacts 

on CCA compliance if baseline emissions for the CCA calculation 

were changed (e.g., if less credit from over-control of 

condensates were available to use in offsetting the required 

HVLC emission reductions). One of the commenters provided 

information on the cost to comply with the revised kraft pulping 

process condensate standard based on mill experience with 

condensate treatment technologies.

In response to these comments, we have: (1) reanalyzed the 

condensate collection information provided in the ICR; (2) 

evaluated the design criteria (and energy impacts) of the steam 

strippers and biotreatment units typically used by facilities to 

assure compliance with 40 CFR 63.446; (3) considered variability 

in treatment system performance; (4) reviewed the additional 

cost and control information provided by one of the commenters, 

information that supplements the data collected in the ICR; and 

 

with the HVLC system requirements. Baseline emissions for the CCA calculation 

were required to be measured in what commenters refer to as “Phase 2” which 

occurred after “Phase 1” compliance was achieved with the kraft pulping 

process condensate standards and the effluent guidelines.
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(5) considered the effects of the proposed standards on CCA 

mills.

In our reanalysis, we estimated the potential nationwide 

cost associated with increasing condensate treatment from 92 to 

94 percent reduction would be $423 million (capital) and $85.1 

million/yr. We estimated a HAP emissions reduction of 2,300 tpy, 

for a cost effectiveness of $37,000/ton of HAP. This estimate 

includes the costs associated with a repeat CCA demonstration 

and switching from CCA to HVLC pulping vent gas control at mills 

where the CCA approach would be adversely affected. Our revised 

cost estimates for a 94 percent reduction standard are 

significantly higher than the cost estimates that we developed 

at proposal for a 94 percent reduction standard because we 

determined that a greater number of mills would be affected 

after considering variability in performance and the potential 

effects on CCA mills. The cost-to-sales ratios for the three

affected small businesses are also higher with one small 

business now estimated to have a ratio of 15 percent.11 In 

addition, we are concerned about the energy and secondary air 

emissions impacts associated with the 94 percent reduction limit 

for these mills. These impacts are primarily due to the power 

 

11 For further information on the costs and impacts associated with the 93 and 

94 percent reduction options considered for promulgation of the kraft pulping 

process condensate standards, see the memorandum in the docket titled, Costs, 

Environmental, and Energy Impacts for the Promulgated Subpart S Risk and 

Technology Review.
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boiler emissions associated with the increased steam demand 

needed for new and upgraded steam stripper systems. We estimated 

approximately 114,000 MMBtu/yr of electricity; 910 MMBtu/yr of 

steam; 593 tpy of PM; 2,870 tpy of CO; 1,990 tpy of NOX, and 901 

tpy of SO2. Energy and secondary air emissions impacts for steam 

strippers were not considered prior to proposal but have been 

considered for the final rule as a result of public comments.12

Similarly, we also analyzed the potential nationwide costs 

and impacts of increasing the 92 percent reduction standard to 

93 percent reduction. For a 93 percent reduction standard, 

estimated capital costs would be $396 million and estimated 

annualized costs would be $74.4 million/yr, with a HAP emission 

reduction of 989 tpy, or approximately $75,000/ton of HAP. The 

energy impacts include an increase of 99,400 MMBtu/yr of 

electricity and 660 MMBtu/yr of steam; with these energy 

impacts, we estimated secondary air emissions of 430 tpy of PM; 

2,080 tpy of CO; 1,440 tpy of NOX; and 659 tpy of SO2. 

Additionally, the cost-to-sales ratio is nearly 6 percent for 

one of the three small businesses.13

Based on this reanalysis, we do not consider the costs and 

impacts associated with the HAP reduction that would be achieved 

under either the 93 or 94 percent reduction options to be 

 

12 Id.

13 Id.
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reasonable. Consequently we have decided not to finalize the 

proposed amendments to the kraft pulping process condensate 

standards (based on the 94 percent reduction option) or to 

promulgate a slightly less stringent standard than proposed 

(based on the 93 percent reduction option). Thus, in this final 

rule we are taking no action to revise the existing 92 percent 

reduction standard for kraft pulping process condensates. 

C. Other Changes Since Proposal

1. Repeat Emissions Testing

One commenter on the proposed rule pointed out that it 

would be inappropriate to require retesting of exempted systems 

(e.g., exempted knotters, screens or deckers) because these are 

not controlled systems and it would be very difficult to perform 

such retesting. In response to this comment, we have added 

language to clarify that the 5-year repeat testing is not 

required for: (1) knotter or screen systems with HAP emission 

rates below the criteria specified in 40 CFR 63.443(a)(1)(ii); 

or (2) decker systems using fresh water or paper machine white 

water or decker systems using process water with a total HAP 

concentration less than 400 ppm by weight as specified in 40 CFR 

63.443(a)(1)(iv).

2. Compliance Dates
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Commenters requested clarification of the different 

compliance dates included in the proposed rule that would 

require existing sources to comply with the proposed affirmative 

defense and electronic reporting provisions upon publication of 

this rule in the Federal Register, but would allow 3 years after 

the effective date for compliance with the other proposed 

requirements. The final rule clarifies compliance and contains 

two compliance dates:

(1) The effective date of the final rule (i.e., date of 

publication in the Federal Register) is the compliance date for 

the SSM changes (including the affirmative defense provisions); 

and 

(2) The date 36 months (3 years) after the effective date 

of this rule is the compliance date for the repeat testing 

requirements.

Commenters also requested clarification of the electronic 

reporting effective date since the proposed rule stated that 

performance test data must be submitted “[a]s of January 1, 2012 

and within 60 days of completing each performance test...”. The 

commenters noted that the January 1, 2012, date would require 

submission of performance testing before the final rule was in 

effect. In response to this comment, we have deleted reference 

to January 1, 2012, from the final rule. Electronic reports 
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would be submitted within 60 days after completing each 

performance test.

3. Excess Emissions Allowances

Some commenters expressed concern regarding the EPA’s 

request for comment in the preamble to the proposed rule (76 FR 

81346) as to whether to remove or modify the excess emissions

allowance provisions in 40 CFR 63.443(e), 63.446(g) and 

63.459(b)(11)(ii). We are deferring any final action on the 

excess emissions allowances until a later date in order to 

analyze more recent information on the allowances that we have 

obtained from industry. After we have completed our analysis of 

the data, we expect to publish a proposed rule describing the 

changes to the excess emissions allowance provisions that we 

believe are warranted and provide a further opportunity for 

public comment before taking final action with respect to the 

excess emissions allowance provisions.

4. Affirmative Defense

We have made several changes to 40 CFR 63.456 for the final 

rule to clarify the circumstances under which a source may 

assert an affirmative defense. The changes to 40 CFR 63.456 

clarify that a source may assert an affirmative defense to a 

claim for civil penalties for violations of standards that are 

caused by malfunctions. A source can avail itself of the 
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affirmative defense when there has been a violation of the 

emission standards due to an event that meets the definition of 

malfunction under 40 CFR 63.2 and qualifies for assertion of an 

affirmative defense under §63.456. Consequently, terms such as 

“exceedance” or “excess emissions” that were included in 40 CFR 

63.456 at proposal have been replaced with the term “violation” 

for the final rule because the provisions of this section refer 

to the assertion of affirmative defense.

We have also eliminated the 2-day notification requirement 

that was included in 40 CFR 63.456(b) at proposal because we

expect to receive sufficient notification of malfunction events 

that result in violations in other required compliance reports, 

such as the malfunction report required under 40 CFR 63.455(g). 

In addition, we have revised the 45-day affirmative defense 

reporting requirement that was included in 40 CFR 63.456(b) at 

proposal to require sources to include the report in the first 

compliance, deviation or excess emission report due after the 

initial occurrence of the violation, unless the compliance, 

deviation or excess emission report is due less than 45 days 

after the violation. In that case, the affirmative defense 

report may be included in the second compliance, deviation or 

excess emission report due after the initial occurrence of the 

violation. Because the affirmative defense report is now 
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included in a subsequent compliance, deviation or excess 

emission report, there is no longer a need for the proposed 30-

day extension for submitting a stand-alone affirmative defense 

report. Consequently, we are not including this provision in the 

final rule.

V. Summary of Cost, Environmental and Economic Impacts 

A. What are the affected facilities?

There are currently 171 major source pulp and paper mills 

operating in the United States. The affected source for kraft, 

soda, sulfite or semi-chemical pulping processes is the total of 

all HAP emission points in the pulping and bleaching systems. 

The affected source for mechanical, secondary or non-wood

pulping processes is the total of all HAP emission points in the 

bleaching system. We estimate that 114 of the 171 major source 

mills operate subpart S processes that are affected by this 

final rule.

B. What are the air quality impacts?

These final amendments will require an estimated 114 mills 

to conduct repeat testing for pulping and bleaching operations 

and all major sources with equipment subject to the subpart S 

standards to operate without the SSM exemption. We were unable 

to quantify the specific emissions reductions associated with 

repeat emissions testing or eliminating the SSM exemption. 
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However, repeat testing will tend to reduce emissions by 

providing incentive for facilities to maintain their control 

systems and make periodic adjustments to ensure peak 

performance. Eliminating the SSM exemption will reduce emissions 

by requiring facilities to meet the applicable standard during 

SSM periods.

Section IV.B of this preamble presents estimates of the air 

quality impacts associated with the kraft pulping process 

condensate regulatory options that were not selected for 

inclusion in this final rule.

C. What are the cost impacts?

Pulp and paper mills will incur costs to conduct repeat

testing and record malfunctions in support of the new 

affirmative defense in the rule. Costs associated with

elimination of the startup and shutdown exemption were estimated 

as part of the reporting and recordkeeping costs and include 

time for reevaluating previously developed SSM record systems. 

Nationwide capital costs are estimated to be $5.9 million. The 

total nationwide annualized costs associated with these new

requirements are estimated to be $2.1 million per year.

Section IV.B of this preamble presents cost estimates 

associated with the kraft pulping process condensate regulatory 

options that were not selected for inclusion in this final rule.
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D. What are the economic impacts?

We performed an EIA of the final rule for pulp and paper 

consumers and producers nationally. The EIA, which documents the 

data sources and methods used and provides detailed results, can 

be found in the docket for the final rule. This section provides 

an overview of key results.

The final rule induces minimal changes in the average 

national price of paper and paperboard products. Paper and 

paperboard product prices increase less than 0.01 percent on 

average, while production levels decrease less that 0.01 percent

on average, as a result of the final rule. Consumers are 

estimated to experience a reduction in economic welfare of about 

$1.1 million as the result of slightly higher prices and 

slightly reduced consumption. Although producers’ welfare losses 

are mitigated to some degree by slightly higher prices, market 

conditions limit their ability to pass on all of the compliance 

costs. As a result, they also are estimated to experience a loss 

in economic welfare of about $1.0 million as a result of the 

final rule.

E. What are the benefits?

Because this rulemaking is not likely to have an annual 

effect on the economy of $100 million or more, we have not 

conducted a RIA or a benefits analysis. Since we were unable to 
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quantify the emissions reductions associated with the new 

requirements in the final rule (repeat testing and elimination 

of the SSM exemption), we were also unable to quantify the 

monetary benefits associated with these new requirements.

VI. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review, and 

Executive Order 13563: Improving Regulation and Regulatory 

Review

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

this action is a “significant regulatory action” because it 

raises novel legal and policy issues. Accordingly, the EPA 

submitted this action to OMB for review under Executive Order 

12866 and 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 OMB under the Paperwork 

Reduction Act, 44 U.S.C. 3501, et seq. The ICR document prepared 

by the EPA has been assigned EPA ICR number 2452.02. 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 
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mandatory for all operators subject to national emissions 

standards. These recordkeeping and reporting requirements are 

specifically authorized by CAA section 114 (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.

This final rule includes new paperwork requirements for 

repeat testing for selected process equipment, as described in 

40 CFR 63.457(a)(2). More specifically, we are requiring stack 

testing every 5 years for total HAP for chemical pulping 

operations and bleaching operations at pulp and paper mills. 

This final rule also includes new paperwork requirements for

recordkeeping of malfunctions, as described in 40 CFR 63.454(g) 

(conducted in support of the affirmative defense provisions, as 

described in 40 CFR 63.456).

When a malfunction occurs, sources must report the event

according to the applicable reporting requirements of 40 CFR 

part 63, subpart S. An affirmative defense to civil penalties 

for violations of emission limits that are caused by 

malfunctions is available to a source if it can demonstrate that 

certain criteria and requirements are satisfied. The criteria 

ensure that the affirmative defense is available only where the 
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event that causes a violation of the emission limit meets the 

narrow definition of malfunction in 40 CFR 63.2 (sudden, 

infrequent, not reasonable preventable and not caused by poor 

maintenance and or careless operation) and where the source took 

necessary actions to minimize emissions. In addition, the source 

must meet certain notification and reporting requirements. For

example, the source must prepare a written root cause analysis 

and submit a written report to the Administrator documenting 

that it has met the conditions and requirements for assertion of 

the affirmative defense.

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 the ICR that 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 $3,258, 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 a violation of an emissions limit. 
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The estimate also includes time to produce and retain the record 

and reports for submission to the EPA. The EPA provides this 

illustrative estimate of this burden because these costs are 

only incurred if there has been a violation and a source chooses 

to take advantage of the affirmative defense.

Given the variety of circumstances under which malfunctions 

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

maintenance practices, we cannot reliably predict the severity 

and frequency of malfunction-related excess emissions events for 

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

basis currently for estimating the number of malfunctions that 

would qualify for an affirmative defense. Current historical 

records would be an inappropriate basis, as source owners or 

operators previously operated their facilities in recognition 

that they were exempt from the requirement to comply with 

emissions standards during malfunctions. Of the number of excess 

emissions events reported by source operators, only a small 

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

the definition above), and only a subset of violations 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 
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reason, we estimate no more than two such occurrences per year 

for all sources subject to subpart S 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.

The estimated recordkeeping and reporting burden associated 

with subpart S after the effective date of the final rule is 

estimated to be 52,300 labor hours at a cost of $4.94 million 

per year and total non-labor capital and O&M costs of $841,000 

per year. This estimate includes reporting costs, such as 

reading and understanding the rule requirements, conducting 

required activities (e.g., stack testing, inspections), and 

preparing notifications and compliance reports and recordkeeping 

costs associated with malfunctions, monitoring and inspections. 

The total burden for the federal government is estimated to be 

6,870 hours per year at a total labor cost of $310,000 per year. 

Burden is defined at 5 CFR 1320.3(b).

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 
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Register to display the OMB control numbers for the approved 

information collection requirements contained in this final 

rule.

C. Regulatory Flexibility Act

The RFA generally requires an agency to prepare a 

regulatory flexibility analysis of any rule subject to notice 

and comment rulemaking requirements under the Administrative 

Procedure Act, or any other statute, unless the agency certifies 

that the rule will not have a SISNOSE. 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 SBA’s regulations at 13 CFR 121.201; (2) a 

small governmental jurisdiction that is a government of a city, 

county, town, school district or special district with a 

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

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

owned and operated and is not dominant in its field. For this 

source category, which has the general NAICS subsector code 322 

(i.e., Paper Manufacturing), the SBA small business size 

standard is 500 to 750 employees (depending on the specific 
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NAICS code) according to the SBA small business standards 

definitions. 

The EPA analyzed impacts on small businesses by comparing 

estimated annualized engineering compliance costs at the 

company-level to company revenue. The analysis found that the 

ratio of compliance cost to company revenue falls below 1

percent for the three small companies that are likely to be 

affected by the finalized rule. After considering the economic 

impacts of this final rule on small entities, I certify that 

this action will not have a SISNOSE. See the EIA in the docket 

for this rule for more details on this analysis. 

Although this final rule will not have a SISNOSE, the EPA 

nonetheless has tried to reduce the impact of this rule on small 

entities. The proposed amendment tightening the kraft pulping 

process condensate standards was not finalized after the EPA 

reevaluated the amendment and its costs and impacts in response 

to public comments (see section IV.B of this preamble for 

further information). The repeat testing requirement was 

established in a way that minimizes the costs for testing and 

reporting while still providing the agency the necessary 

information needed to ensure continuous compliance with the 

final standards. Also, the final malfunction recordkeeping 

requirement was designed to provide all pulp and paper 
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companies, including small entities, with a means of supporting 

an affirmative defense in the event of a violation occurring 

during a malfunction.

D. Unfunded Mandates Reform Act

This action does not contain a federal mandate under the 

provisions of Title II of the UMRA, 2 U.S.C. 1531-1538 for 

state, local or tribal governments or the private sector. This 

final rule is not expected to impact state, local or tribal 

governments. The nationwide annual cost of this final rule for 

affected sources is $2.1 million. Thus, this rule is not subject 

to the requirements of sections 202 or 205 of the UMRA.

This rule 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 does not apply to such governments and 

will not impose any obligations upon them.

E. Executive Order 13132: Federalism

This final rule 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. None of the facilities subject to this action are owned 
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or operated by state governments and nothing in this final rule 

will supersede state regulations. The burden to the respondents 

and the states is less than $2.1 million for the entire source 

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

final rule.

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 effect on tribal 

governments, on the relationship between the federal government 

and Indian tribes, or on the distribution of power and 

responsibilities between the federal government and Indian 

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

Order 13175 does not apply to this action. However, the EPA did 

outreach and consultation on this rule. The EPA presented this 

information to the tribes prior to proposal of this rule via a 

call with the National Tribal Air Association. In addition, the 

EPA presented the information on the sources and the industry at 

the National Tribal Forum in Spokane, Washington. The EPA also 

offered consultation by letters sent to all tribal leaders. We 

held that consultation with the Nez Perce, Forest County 

Potowatomi and Leech Lake Band of Ojibewa on October 6, 2011.

Additionally, a public outreach webinar was conducted during the 
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comment period on January 31, 2012, to review the proposed rule. 

The webinar was coordinated with the tribal governments and the 

general public.

G. Executive Order 13045: Protection of Children from 

Environmental Health Risks and Safety Risks

This final rule is not subject to Executive Order 13045 (62 

FR 19885, April 23, 1997) because it is not economically 

significant as defined in Executive Order 12866, and because the 

agency does not believe the environmental health risks or safety

risks addressed by this action present a disproportionate risk 

to children. This action will not relax the control measures on 

existing regulated sources, and the EPA’s risk assessment 

results - included in the preamble (76 FR 81344) and docket 

(EPA-HQ-OAR-2007-0544) for the proposed rule - demonstrate that 

the existing regulation is associated with an acceptable level 

of risk and an ample margin of safety to protect public health.

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 

under 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. This action will not 

create any new requirements for sources in the energy supply, 

distribution or use sectors.
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I. National Technology Transfer and Advancement Act

Section 12(d) of the NTTAA, Public Law No. 104-113, 12(d) 

(15 U.S.C. 272 note), directs the EPA to use VCS in its 

regulatory activities, unless to do so would be inconsistent 

with applicable law or otherwise impractical. Voluntary 

consensus standards are technical standards (e.g., materials 

specifications, test methods, sampling procedures and business 

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

NTTAA directs the EPA to provide Congress, through OMB, 

explanations when the agency decides not to use available and 

applicable VCS. 

This final rulemaking involves technical standards. The EPA 

has decided to use three VCS in this final rule.

One VCS, ASME PTC 19.10-1981, “Flue and Exhaust Gas 

Analyses,” is cited in this final rule for its manual method of 

measuring the content of the exhaust gas as an acceptable 

alternative to EPA Method 3B of appendix A-2. This standard is 

available at http://www.asme.org or by mail at the ASME, Post 

Office Box 2900, Fairfield, NJ 07007–2900; or at Global 

Engineering Documents, Sales Department, 15 Inverness Way East, 

Englewood, CO 80112.

A second VCS, ASTM D6420-99 (2010), “Test Method for 

Determination of Gaseous Organic Compounds by Direct Interface 
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Gas Chromatography/Mass Spectrometry” is cited as an acceptable 

alternative to EPA Method 18. A third VCS, ASTM D6348-03 (2010), 

“Test Method for Determination of Gaseous Compounds by 

Extractive Direct Interface Fourier Transform Infrared (FTIR) 

Spectroscopy,” was determined to be an acceptable alternative to 

EPA Method 320. EPA Methods 18 and 320 are added as alternatives 

to EPA Method 308 in this final rule for measurement of methanol 

emissions. The two VCS alternatives are available for purchase 

from ASTM International, 100 Barr Harbor Drive, Post Office Box 

C700, West Conshohocken, PA 19428–2959; or ProQuest, 300 North 

Zeeb Road, Ann Arbor, MI 48106.

While the EPA has identified another 14 VCS as being 

potentially applicable to this final rule, we have decided not 

to use these VCS in this rulemaking. The use of these VCS would 

be impractical because they do not meet the objectives of the 

standards cited in this rule. See the docket for this rule for 

the reasons for these determinations.

Under 40 CFR 63.7(e)(2)(ii) and (f) and 63.8(f) of the 

NESHAP General Provisions, a source may apply to the EPA for 

permission to use alternative test methods or alternative 

monitoring requirements in place of any required testing 

methods, performance specifications or procedures in the final 

rule and any amendments. 
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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 EJ. Its main provision 

directs federal agencies, to the greatest extent practicable and 

permitted by law, to make EJ 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 will not have 

disproportionately high and adverse human health or 

environmental effects on minority, low income or indigenous 

populations because it does not affect the level of protection 

provided to human health or the environment.

These final standards will not relax the control measures 

on sources regulated by the rule and, therefore, will not cause 

emissions increases from these sources. In fact, as noted in 

section III.A of this preamble, the repeat testing provisions 

included in this final rule will tend to reduce emissions by 

providing incentive for facilities to maintain their control 

systems and make periodic adjustments to ensure peak 

performance. Also, eliminating the SSM exemption will reduce 
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emissions by requiring facilities to meet the applicable 

standard during SSM periods.

Additionally, the agency has reviewed this rule to 

determine if there is an overrepresentation of minority, low 

income or indigenous populations near the sources such that they 

may face disproportionate exposure from pollutants that could 

potentially be mitigated by this rulemaking. Although this 

analysis gives some indication of populations that may be 

exposed to levels of pollution that cause concern, it does not

identify the demographic characteristics of the most highly 

affected individuals or communities.

The demographic data show that while most demographic 

categories are below, or within, 2 percentage points of national 

averages, the African-American population exceeds the national 

average by 3 percentage points (15 percent versus 12 percent), 

or +25 percent. The facility-level demographic analysis results

are presented in the November 2011 memorandum titled Review of 

Environmental Justice Impacts: Pulp and Paper, a copy of which 

is available in the docket for this action (EPA–HQ–OAR–2007-

0544).

The analysis of demographic data used proximity-to-a-source

as a surrogate for exposure to identify those populations 

considered to be living near affected sources, such that they 
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have measurable exposures to current HAP emissions from these 

sources. The demographic data for this analysis were extracted 

from the 2000 census data, which were provided to the EPA by the 

United States Census Bureau. Distributions by race are based on 

demographic information at the census block level and all other 

demographic groups are based on the extrapolation of census 

block group level data to the census block level. The sociodemographic parameters used in the analysis included the 

following categories: Racial (White, African American, Native

American, Other or Multiracial, and All Other Races); Ethnicity 

(Hispanic); and Other (Number of people below the poverty line, 

Number of people with ages between 0 and 18, Number of people

with ages greater than or equal to 65, Number of people with no 

high school diploma).

In determining the aggregate demographic makeup of the 

communities near affected sources, the EPA focused on those 

census blocks within 3 miles of affected sources and determined 

the demographic composition (e.g., race, income, etc.) of these 

census blocks and compared them to the corresponding 

compositions nationally. The radius of 3 miles (or approximately 

5 km) is consistent with other demographic analyses focused on 
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areas around potential sources.14,15,16,17 In addition, air quality 

modeling experience has shown that the area within 3 miles of an 

individual source of emissions can generally be considered the 

area with the highest ambient air levels of the primary 

pollutants being emitted for most sources, both in absolute 

terms and relative to the contribution of other sources 

(assuming there are other sources in the area, as is typical in 

urban areas). While facility processes and fugitive emissions 

may have more localized impacts, the EPA acknowledges that 

because of various stack heights, there is the potential for 

dispersion beyond 3 miles. To the extent that any minority, low 

income or indigenous subpopulation is disproportionately 

impacted by the current emissions as a result of the proximity 

of their homes to these sources, that subpopulation also stands 

to see increased environmental and health benefit from the 

emissions reductions that may result from this rule.

The EPA did outreach and consultation on this rule on the 

subject of federal actions to address EJ issues. The EPA 

requested input on EJ issues prior to proposal of this rule in 

 

14 U.S. GAO (Government Accountability Office). Demographics of People Living 

Near Waste Facilities. Washington DC: Government Printing Office; 1995.

15 Mohai P, Saha R. Reassessing Racial and Socio-economic Disparities in 

Environmental Justice Research. Demography. 2006;43(2): 383–399.

16 Mennis J. Using Geographic Information Systems to Create and Analyze 

Statistical Surfaces of Populations and Risk for Environmental Justice 

Analysis. Social Science Quarterly, 2002;83(1):281-297.

17 Bullard RD, Mohai P, Wright B, Saha R, et al. Toxic Waste and Race at 

Twenty 1987-2007. United Church of Christ. March, 2007.
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regional conference calls and at the EPA’s national EJ 

conference in 2011. Additionally, a public outreach webinar was 

conducted during the comment period on January 31, 2012, to 

review the proposed rule. As noted above, the webinar was 

coordinated with the tribal governments and the general public.

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. The EPA 

will submit a report containing this final rule and other 

required information to the United States Senate, the United 

States House of Representatives and the Comptroller General of 

the United States prior to publication of the 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). The final rule 

will be effective on [INSERT DATE OF PUBLICATION OF THIS FINAL 

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

National Emission Standards for Hazardous Air Pollutants 

from the Pulp and Paper Industry

--Page 63 of 84--

List of Subjects in 40 CFR Part 63

Environmental protection, Air pollution control, Hazardous 

substances, Incorporation by reference, Reporting and 

recordkeeping requirements.

____________________________

Dated:

____________________________

Lisa P. Jackson,

Administrator.
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For the reasons stated in the preamble, the Environmental 

Protection Agency is amending Title 40, chapter I of the Code of 

Federal Regulations as follows:

PART 63-–[AMENDED]

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

follows:

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

Subpart A—[Amended]

2. Section 63.14 is amended as follows by:

a. Revising paragraph (b)(28);

b. Revising paragraph (b)(54);

c. Adding paragraph (f)(5); and

d. Revising paragraph (i)(1).

§ 63.14 Incorporations by reference.

* * * * *

(b) * * *

(28) ASTM D6420–99 (Reapproved 2004), Standard Test Method 

for Determination of Gaseous Organic Compounds by Direct 

Interface Gas Chromatography-Mass Spectrometry, approved 2004, 

IBR approved for §§60.485, 60.485a, 63.457, 63.772, 63.2351, 

63.2354, and table 8 to subpart HHHHHHH of this part.

* * *

(54) ASTM D6348–03, Standard Test Method for Determination 

of Gaseous Compounds by Extractive Direct Interface Fourier 
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Transform Infrared (FTIR) Spectroscopy, approved 2003, IBR 

approved for §§63.457, 63.1349, table 4 to subpart DDDD of this 

part, and table 8 to subpart HHHHHHH of this part.

* * * * *

(f) * * *

(5) NCASI Method DI/MEOH–94.03, Methanol in Process Liquids 

and Wastewaters by GC/FID, May 2000, NCASI, Research Triangle 

Park, NC, IBR approved for §§63.457 and 63.459 of subpart S of 

this part.

* * * * *

(i) * * *

(1) ANSI/ASME PTC 19.10–1981, “Flue and Exhaust Gas 

Analyses [Part 10, Instruments and Apparatus],” IBR approved for 

§§63.309, 63.457, 63.865, 63.3166, 63.3360, 63.3545, 63.3555, 

63.4166, 63.4362, 63.4766, 63.4965, 63.5160, 63.9307, 63.9323, 

63.11148, 63.11155, 63.11162, 63.11163, 63.11410, 63.11551, 

63.11945, table 5 to subpart DDDDD of this part, table 1 to 

subpart ZZZZZ of this part, table 4 to subpart JJJJJJ of this 

part, and table 5 to subpart UUUUU of this part.

* * * * *

Subpart S—[Amended]

* * * * *
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3. Section 63.441 is amended by adding a definition for 

“affirmative defense,” in alphabetical order, to read as 

follows:

§63.441 Definitions.

* * * * *

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.

* * * * *

4. Section 63.443 is amended by revising paragraph (e) 

introductory text to read as follows:

§ 63.443 Standards for the pulping system at kraft, soda, and 

semi-chemical processes.

* * * * * 

(e) Periods of excess emissions reported under §63.455 shall 

not be a violation of §63.443(c) and (d) provided that the time 

of excess emissions divided by the total process operating time 

in a semi-annual reporting period does not exceed the following 

levels:

* * * * * 
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5. Section 63.446 is amended by revising paragraph (g) to 

read as follows:

§ 63.446 Standards for kraft pulping process condensates.

* * * * * 

(g) For each control device (e.g., steam stripper system or 

other equipment serving the same function) used to treat pulping 

process condensates to comply with the requirements specified in 

paragraphs (e)(3) through (e)(5) of this section, periods of 

excess emissions reported under §63.455 shall not be a violation 

of paragraphs (d), (e)(3) through (e)(5), and (f) of this 

section provided that the time of excess emissions divided by 

the total process operating time in a semi-annual reporting 

period does not exceed 10 percent. The 10 percent excess 

emissions allowance does not apply to treatment of pulping 

process condensates according to paragraph (e)(2) of this 

section (e.g., the biological wastewater treatment system used 

to treat multiple (primarily non-condensate) wastewater streams 

to comply with the Clean Water Act).

* * * * * 

6. Section 63.453 is amended by adding paragraph (q) to 

read as follows:

§ 63.453 Monitoring requirements.

* * * * * 
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(q) At all times, the owner or operator must operate and 

maintain any affected source, including associated air pollution 

control equipment and monitoring equipment, in a manner 

consistent with safety and good air pollution control practices 

for minimizing emissions. Determination of whether such 

operation and maintenance procedures are being used will be 

based on information available to the Administrator which may 

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

operation and maintenance procedures, review of operation and 

maintenance records, and inspection of the source.

7. Section 63.454 is amended by revising paragraph (a) and 

adding paragraph (g) to read as follows:

§63.454 Recordkeeping requirements.

(a) The owner or operator of each affected source subject 

to the requirements of this subpart shall comply with the 

recordkeeping requirements of §63.10, as shown in Table 1 of 

this subpart, and the requirements specified in paragraphs (b) 

through (g) of this section for the monitoring parameters 

specified in §63.453.

* * * * * 

(g) Recordkeeping of malfunctions. The owner or operator 

must maintain the following records of malfunctions:
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(1) Records of the occurrence and duration of each 

malfunction of operation (i.e., process equipment) or the air 

pollution control and monitoring equipment.

(2) Records of actions taken during periods of malfunction 

to minimize emissions in accordance with §63.453(q), including 

corrective actions to restore malfunctioning process and air 

pollution control and monitoring equipment to its normal or 

usual manner of operation.

8. Section 63.455 is amended by adding paragraphs (g) and 

(h) to read as follows:

§ 63.455 Reporting requirements.

* * * * * 

(g) Malfunction reporting requirements. If a malfunction 

occurred during the reporting period, the report must include 

the number, duration and a brief description for each type of 

malfunction which occurred during the reporting period and which 

caused or may have caused any applicable emission limitation to 

be exceeded. The report must also include a description of 

actions taken by an owner or operator during a malfunction of an 

affected source to minimize emissions in accordance with 

§63.453(q), including actions taken to correct a malfunction.

(h) The owner or operator must submit performance test 

reports as specified in paragraphs (h)(1) through (4).
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(1) The owner or operator of an affected source shall 

report the results of the performance test before the close of 

business on the 60th day following the completion of the 

performance test, unless approved otherwise in writing by the 

Administrator. A performance test is “completed” when field 

sample collection is terminated. Unless otherwise approved by 

the Administrator in writing, results of a performance test 

shall include the analysis of samples, determination of 

emissions and raw data. A complete test report must include the 

purpose of the test; a brief process description; a complete 

unit description, including a description of feed streams and 

control devices; sampling site description; pollutants measured; 

description of sampling and analysis procedures and any 

modifications to standard procedures; quality assurance 

procedures; record of operating conditions, including operating 

parameters for which limits are being set, during the test; 

record of preparation of standards; record of calibrations; raw 

data sheets for field sampling; raw data sheets for field and 

laboratory analyses; chain-of-custody documentation; explanation 

of laboratory data qualifiers; example calculations of all 

applicable stack gas parameters, emission rates, percent 

reduction rates, and analytical results, as applicable; and any 
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other information required by the test method and the 

Administrator.

(2) Within 60 days after the date of completing each 

performance test (defined in §63.2) as required by this subpart, 

the owner or operator must submit the results of the performance 

tests, including any associated fuel analyses, required by this 

subpart to the EPA’s WebFIRE database by using the Compliance 

and Emissions Data Reporting Interface (CEDRI) that is accessed 

through the EPA’s Central Data Exchange (CDX)

(http://www.epa.gov/cdx). Performance test data must be 

submitted in the file format generated through use of the EPA’s 

Electronic Reporting Tool (ERT) (see 

http://www.epa.gov/ttn/chief/ert/index.html). Only data 

collected using test methods on the ERT website are subject to 

this requirement for submitting reports electronically to 

WebFIRE. Owners or operators who claim that some of the 

information being submitted for performance tests is 

confidential business information (CBI) must submit a complete 

ERT file including information claimed to be CBI on a compact 

disk, flash drive or other commonly used electronic storage 

media to the EPA. The electronic media must be clearly marked as 

CBI and mailed to U.S. EPA/OAPQS/CORE CBI Office, Attention: 

WebFIRE Administrator, MD C404-02, 4930 Old Page Rd., Durham, NC 
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27703. The same ERT file with the CBI omitted must be submitted 

to the EPA via CDX as described earlier in this paragraph. At 

the discretion of the delegated authority, the owner or operator 

must also submit these reports, including the CBI, to the 

delegated authority in the format specified by the delegated 

authority. For any performance test conducted using test methods 

that are not listed on the ERT website, the owner or operator 

must submit the results of the performance test to the 

Administrator at the appropriate address listed in §63.13.

(3) Within 60 days after the date of completing each CEMS 

performance evaluation test as defined in §63.2, the owner or 

operator must submit relative accuracy test audit (RATA) data to 

the EPA’s CDX by using CEDRI in accordance with paragraph (2) of 

this section. Only RATA pollutants that can be documented with 

the ERT (as listed on the ERT website) are subject to this 

requirement. For any performance evaluations with no 

corresponding RATA pollutants listed on the ERT website, the 

owner or operator must submit the results of the performance 

evaluation to the Administrator at the appropriate address 

listed in §63.13.

(4) All reports required by this subpart not subject to the 

requirements in paragraphs (h)(2) and (3) of this section must 

be sent to the Administrator at the appropriate address listed 
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in §63.13. The Administrator or the delegated authority may 

request a report in any form suitable for the specific case 

(e.g., by commonly used electronic media such as Excel 

spreadsheet, on CD or hard copy). The Administrator retains the 

right to require submittal of reports subject to paragraphs 

(h)(2) and (3) of this section in paper format.

9. Section 63.456 is added to read as follows:

§ 63.456 Affirmative defense for violation of emission standards

during malfunction.

In response to an action to enforce the standards set forth 

in §§63.443(c) and (d), 63.444(b) and (c), 63.445(b) and (c), 

63.446(c), (d), and (e), 63.447(b) or §63.450(d), the owner or 

operator 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, however, if the owner or operator fails to meet 

the burden of proving all of the requirements in the affirmative 

defense. The affirmative defense shall not be available for 

claims for injunctive relief.

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

enforce such a standard, the owner or operator must timely meet 

the reporting requirements in paragraph (b) of this section, and 

must prove by a preponderance of evidence that:

(1) The violation: 
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(i) 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 

(ii) Could not have been prevented through careful 

planning, proper design or better operation and maintenance 

practices; and

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

have been foreseen and avoided, or planned for; and

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

inadequate design, operation, or maintenance; and

(2) 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

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

(including any bypass) were minimized to the maximum extent 

practicable; and

(4) 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

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

the violation on ambient air quality, the environment and human 

health; and
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(6) All emissions monitoring and control systems were kept 

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

air pollution control practices; and

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

documented by properly signed, contemporaneous operating logs; 

and

(8) At all times, the affected source was operated in a 

manner consistent with good practices for minimizing emissions; 

and

(9) 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 shall also 

specify, using best monitoring methods and engineering judgment, 

the amount of any emissions that were the result of the 

malfunction. 

(b) Report. The owner or operator seeking to assert an 

affirmative defense shall submit a written report to the 

Administrator with all necessary supporting documentation, that 

it has met the requirements set forth in paragraph (a) of this 

section. This affirmative defense report shall be included in 

the first periodic compliance, deviation report or excess 

emission report otherwise required after the initial occurrence 
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of the violation of the relevant standard (which may be the end 

of any applicable averaging period). If such compliance, 

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, deviation report or excess emission report due after 

the initial occurrence of the violation of the relevant 

standard.

10. Section 63.457 is amended by:

a. Revising paragraph (a);

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

c. Revising paragraph (b)(3);

d. Revising paragraph (b)(4);

e. Revising paragraph (b)(5)(i);

f. Revising paragraph (b)(5)(ii) introductory text;

g. Revising paragraph (c)(3)(ii);

h. Revising paragraph (d)(1);

i. Revising paragraph (k)(1); and

j. Adding paragraph (o).

The revisions read as follows:

§ 63.457 Test methods and procedures.

(a) Performance tests. Initial and repeat performance tests 

are required for the emissions sources specified in paragraphs 
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(a)(1) and (2) of this section, except for emission sources 

controlled by a combustion device that is designed and operated 

as specified in §63.443(d)(3) or (d)(4).

(1) Conduct an initial performance test for all emission 

sources subject to the limitations in §§63.443, 63.444, 63.445, 

63.446, and 63.447.

(2) Conduct repeat performance tests at five-year intervals 

for all emission sources subject to the limitations in §§63.443, 

63.444, and 63.445. The first of the 5-year repeat tests must be 

conducted by [INSERT DATE 36 MONTHS AFTER DATE OF PUBLICATION OF 

THIS FINAL RULE IN THE FEDERAL REGISTER], and thereafter within 

60 months from the date of the previous performance test. Fiveyear repeat testing is not required for the following:

(i) Knotter or screen systems with HAP emission rates below 

the criteria specified in §63.443(a)(1)(ii).

(ii) Decker systems using fresh water or paper machine 

white water, or decker systems using process water with a total 

HAP concentration less than 400 parts per million by weight as 

specified in §63.443(a)(1)(iv).

(b) * * *

(1) Method 1 or 1A of part 60, appendix A-1, as

appropriate, shall be used for selection of the sampling site as 

follows:
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* * *

(3) The vent gas volumetric flow rate shall be determined 

using Method 2, 2A, 2C, or 2D of part 60, appendix A-1, as 

appropriate.

(4) The moisture content of the vent gas shall be measured 

using Method 4 of part 60, appendix A-3.

(5) * * *

(i) Method 308 in Appendix A of this part; Method 320 in 

Appendix A of this part; Method 18 in appendix A-6 of part 60; 

ASTM D6420-99 (incorporated by reference in §63.14(b)(28) of 

subpart A of this part); or ASTM D6348-03 (incorporated by 

reference in §63.14(b)(54) of subpart A of this part) shall be 

used to determine the methanol concentration. If ASTM D6348-03 

is used, the conditions specified in paragraphs (b)(5)(i)(A) 

though (b)(5)(i)(B) must be met.

(A) The test plan preparation and implementation in the 

Annexes to ASTM D6348-03, sections A1 through A8 are required.

(B) In ASTM D6348-03 Annex A5 (Analyte Spiking Technique), 

the percent (%) R must be determined for each target analyte 

(Equation A5.5 of ASTM D6348-03). In order for the test data to 

be acceptable for a compound, %R must be between 70 and 130 

percent. If the %R value does not meet this criterion for a 

target compound, the test data is not acceptable for that 
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compound and the test must be repeated for that analyte 

following adjustment of the sampling or analytical procedure 

before the retest. The %R value for each compound must be 

reported in the test report, and all field measurements must be 

corrected with the calculated %R value for that compound using 

the following equation: Reported Result = Measured Concentration 

in the Stack x 100)/%R.

(ii) Except for the modifications specified in paragraphs 

(b)(5)(ii)(A) through (b)(5)(ii)(K) of this section, Method 26A 

of part 60, appendix A-8 shall be used to determine chlorine 

concentration in the vent stream.

* * *

(c) * * *

(3) * * *

(ii) For determining methanol concentrations, NCASI Method 

DI/MEOH–94.03, Methanol in Process Liquids and Wastewaters by 

GC/FID, May 2000, NCASI, Research Triangle Park, NC. This test 

method is incorporated by reference in §63.14(f)(5) of subpart A 

of this part.

* * *

(d) * * *

(1) Method 21, of part 60, appendix A-7; and

* * * * *
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(k) * * *

(1) The emission rate correction factor and excess air 

integrated sampling and analysis procedures of Methods 3A or 3B 

of part 60, appendix A-2 shall be used to determine the oxygen 

concentration. The samples shall be taken at the same time that 

the HAP samples are taken. As an alternative to Method 3B, ASME 

PTC 19.10-1981-part 10 may be used (incorporated by reference, 

see §63.14(i)(1)).

* * * * *

(o) Performance tests shall be conducted under such 

conditions as the Administrator specifies to the owner or 

operator based on representative performance of the affected 

source for the period being tested. Upon request, the owner or 

operator shall make available to the Administrator such records 

as may be necessary to determine the conditions of performance 

tests.

11. Section 63.459 is amended by revising paragraph 

(b)(11)(ii) to read as follows:

§ 63.459 Alternative standards.

* * * * * 

(b) * * *

(11) * * *
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(ii) Periods of excess emissions shall not constitute a 

violation provided the time of excess emissions divided by the 

total process operating time in a semi-annual reporting period 

does not exceed one percent. All periods of excess emission 

shall be reported, and shall include:

* * *

12. Table 1 to subpart S is revised to read as follows:

Table 1 to Subpart S of Part 63—General Provisions Applicability 

to Subpart Sa

Reference

Applies to 

Subpart S Comment

63.1(a)(1)–(3) Yes

63.1(a)(4) Yes Subpart S (this table) specifies 

applicability of each paragraph in subpart A 

to subpart S.

63.1(a)(5) No Section reserved.

63.1(a)(6) Yes

63.1(a)(7)-(9) No Sections reserved.

63.1(a)(10) No Subpart S and other cross-referenced subparts 

specify calendar or operating day.

63.1(a)(11)–(12) Yes

63.1(b)(1) No Subpart S specifies its own applicability.

63.1(b)(2) No Section reserved.

63.1(b)(3) Yes

63.1(c)(1)–(2) Yes

63.1(c)(3)-(4) No Sections reserved.

63.1(c)(5) Yes

63.1(d) No Section reserved.

63.1(e) Yes

63.2 Yes

63.3 Yes

63.4(a)(1)-(2) Yes

63.4(a)(3)-(5) No Sections reserved.

63.4(b) Yes

63.4(c) Yes

63.5(a) Yes

63.5(b)(1) Yes

63.5(b)(2) No Section reserved.

63.5(b)(3)-(4) Yes

63.5(b)(5) No Section reserved.

63.5(b)(6) Yes
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Reference

Applies to 

Subpart S Comment

63.5(c) No Section reserved.

63.5(d) Yes

63.5(e) Yes

63.5(f) Yes

63.6(a) Yes

63.6(b)(1)-(5) No Subpart S specifies compliance dates for 

sources subject to subpart S.

63.6(b)(6) No Section reserved.

63.6(b)(7) No Subpart S specifies compliance dates for 

sources subject to subpart S.

63.6(c)(1)-(2) No Subpart S specifies compliance dates for 

sources subject to subpart S.

63.6(c)(3)-(4) No Sections reserved.

63.6(c)(5) No Subpart S specifies compliance dates for 

sources subject to subpart S.

63.6(d) No Section reserved.

63.6(e)(1)(i) No See §63.453(q) for general duty requirement

63.6(e)(1)(ii) No

63.6(e)(1)(iii) Yes

63.6(e)(2) No Section reserved.

63.6(e)(3) No

63.6(f)(1) No

63.6(f)(2)-(3) Yes

63.6(g) Yes

63.6(h)(1)-(2) No Pertains to continuous opacity monitors that 

are not part of this standard.

63.6(h)(3) No Section reserved.

63.6(h)(4)-(9) No Pertains to continuous opacity monitors that 

are not part of this standard.

63.6(i)(1)-(14) Yes

63.6(i)(15) No Section reserved.

63.6(i)(16) Yes

63.6(j) Yes

63.7(a) Yes

63.7(b) Yes

63.7(c) Yes

63.7(d) Yes

63.7(e)(1) No Replaced with §63.457(o), which specifies 

performance testing conditions under subpart 

S.

63.7(e)(2)-(4) Yes

63.7(f) Yes

63.7(g)(1) Yes

63.7(g)(2) No Section reserved.

63.7(g)(3) Yes

63.7(h) Yes

63.8(a)(1)-(2) Yes

63.8(a)(3) No Section reserved.

63.8(a)(4) Yes
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Reference

Applies to 

Subpart S Comment

63.8(b)(1) Yes

63.8(b)(2) No Subpart S specifies locations to conduct 

monitoring.

63.8(b)(3) Yes

63.8(c)(1)-

(c)(1)(i)

No See §63.453(q) for general duty requirement 

(which includes monitoring equipment)

63.8(c)(1)(ii) Yes

63.8(c)(1)(iii) No

63.8(c)(2)-(3) Yes

63.8(c)(4) No Subpart S allows site specific determination 

of monitoring frequency in §63.453(n)(4).

63.8(c)(5) No Pertains to continuous opacity monitors that 

are not part of this standard.

63.8(c)(6)-(8) Yes

63.8(d)(1)-(2) Yes

63.8(d)(3) Yes, except 

for last 

sentence,

which refers 

to an SSM 

plan.

SSM plans are not required.

63.8(e) Yes

63.8(f)(1)–(5) Yes

63.8(f)(6) No Subpart S does not specify relative accuracy 

test for CEMs.

63.8(g) Yes

63.9(a) Yes

63.9(b)(1)-(2) Yes Initial notifications must be submitted 

within one year after the source becomes 

subject to the relevant standard.

63.9(b)(3) No Section reserved.

63.9(b)(4)-(5) Yes

63.9(c) Yes

63.9(d) No Special compliance requirements are only 

applicable to kraft mills.

63.9(e) Yes

63.9(f) No Pertains to continuous opacity monitors that 

are not part of this standard.

63.9(g)(1) Yes

63.9(g)(2) No Pertains to continuous opacity monitors that 

are not part of this standard.

63.9(g)(3) No Subpart S does not specify relative accuracy 

tests, therefore no notification is required 

for an alternative.

63.9(h)(1)-(3) Yes

63.9(h)(4) No Section reserved.

63.9(h)(5)-(6) Yes

63.9(i) Yes

63.9(j) Yes

63.10(a) Yes
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Reference

Applies to 

Subpart S Comment

63.10(b)(1) Yes

63.10(b)(2)(i) No

63.10(b)(2)(ii) No See §63.454(g) for recordkeeping of (1) 

occurrence and duration and (2) actions taken 

during malfunction.

63.10(b)(2)(iii) Yes

63.10(b)(2)(iv)-

(v)

No

63.10(b)(2)(vi)-

(xiv)

Yes

63.10(b)(3) Yes

63.10(c)(1) Yes

63.10(c)(2)-(4) No Sections reserved.

63.10(c)(5)-(8) Yes

63.10(c)(9) No Section reserved.

63.10(c)(10)-(11) No See §63.454(g) for malfunction recordkeeping 

requirements.

63.10(c)(12)-(14) Yes

63.10(c)(15) No

63.10(d)(1)-(2) Yes

63.10(d)(3) No Pertains to continuous opacity monitors that 

are not part of this standard.

63.10(d)(4) Yes

63.10(d)(5) No See §63.455(g) for malfunction reporting 

requirements.

63.10(e)(1) Yes

63.10(e)(2)(i) Yes

63.10(e)(2)(ii) No Pertains to continuous opacity monitors that 

are not part of this standard.

63.10(e)(3) Yes

63.10(e)(4) No Pertains to continuous opacity monitors that 

are not part of this standard.

63.10(f) Yes

63.11–63.15 Yes

aWherever subpart A specifies “postmark” dates, submittals may be sent by 

methods other than the U.S. Mail (e.g., by fax or courier). Submittals shall 

be sent by the specified dates, but a postmark is not required.