72050 Federal Register / Vol. 76, No. 224 / Monday, November 21, 2011 / Rules and Regulations 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 63 

[EPA–HQ–OAR–2010–0786; FRL–9491–4] 

RIN 2060–AQ42 

National Emission Standards for 

Hazardous Air Pollutant Emissions for 

Shipbuilding and Ship Repair (Surface 

Coating); National Emission Standards 

for Wood Furniture Manufacturing 

Operations 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: This action finalizes the 

residual risk and technology review 

conducted for two industrial source 

categories regulated by separate national 

emission standards for hazardous air 

pollutants. The two national emission 

standards for hazardous air pollutants 

are: National Emissions Standards for 

Shipbuilding and Ship Repair (Surface 

Coating) and National Emissions 

Standards for Wood Furniture 

Manufacturing Operations. This action 

also finalizes revisions to the regulatory 

provisions related to emissions during 

periods of startup, shutdown and 

malfunction. 

DATES: This final action is effective on 

November 21, 2011. 

ADDRESSES: The EPA has established a 

docket for this action under Docket ID 

Number EPA–HQ–OAR–2010–0786. All 

documents in the docket are listed on 

the http://www.regulations.gov Web 

site. Although listed in the index, some 

information is not publicly available, 

e.g., confidential business information 

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 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 

regarding the Wood Furniture 

Manufacturing Operations National 

Emission Standards for Hazardous Air 

Pollutants (NESHAP), contact Mr. 

Nicholas Swanson, Office of Air Quality 

Planning and Standards, Sector Policies 

and Programs Division, Natural 

Resources Group (E143–03), U.S. 

Environmental Protection Agency, 

Research Triangle Park, NC 27711; 

telephone number: (919) 541–4080; fax 

number: (919) 685–3219; and email 

address: swanson.nicholas@epa.gov. For 

questions about this final action 

regarding the Shipbuilding and Ship 

Repair (Surface Coating) NESHAP, 

contact Ms. Tina Ndoh, Office of Air 

Quality Planning and Standards, Sector 

Policies and Programs Division, 

Minerals and Manufacturing Group 

(E243–04), U.S. Environmental 

Protection Agency, Research Triangle 

Park, NC 27711; telephone number: 

(919) 541–2750; fax number: (919) 685– 

5450; and email address: 

ndoh.tina@epa.gov. 

SUPPLEMENTARY INFORMATION: For 

specific information regarding the 

modeling methodology, contact Mr. 

James Hirtz, Office of Air Quality 

Planning and Standards, Health and 

Environmental Impacts Division, Air 

Toxics Assessment Group (C539–02), 

U.S. Environmental Protection Agency, 

Research Triangle Park, NC 27711; 

telephone number: (919) 541–0881; fax 

number: (919) 541–0840; and email 

address: hirtz.james@epa.gov. For 

information about the applicability of 

these two NESHAP to a particular 

entity, contact Dr. Rafael Sanchez, 

Office of Enforcement and Compliance 

Assurance, U.S. Environmental 

Protection Agency, Washington, DC 

20460; telephone number: (202) 564– 

7028; fax number: (202) 564–0050; and 

email address: sanchez.rafael@epa.gov. 

Background Information Document. 

On December 21, 2010 (75 FR 80220), 

the EPA proposed revisions to the 

Shipbuilding and Ship Repair (Surface 

Coating) NESHAP and the Wood 

Furniture Manufacturing Operations 

NESHAP, which were evaluated in our 

residual risk and technology review 

(RTR). A summary of the public 

comments on the proposal and the 

EPA’s responses to the comments is 

available in Docket ID Number EPA– 

HQ–OAR–2010–0786. 

Organization of this Document. The 

following outline is provided to aid in 

locating information in the preamble. 

I. General Information 

A. Does this action apply to me? 

B. Where can I get a copy of this 

document? 

C. Judicial Review 

II. Background 

III. Summary of the Final Rules 

A. What are the final rule amendments for 

the Shipbuilding and Ship Repair 

(Surface Coating) source category? 

B. What are the final rule amendments for 

the Wood Furniture Manufacturing 

Operations source category? 

C. What are the requirements during 

periods of startup, shutdown and 

malfunction? 

D. What are the effective and compliance 

dates of the standards? 

IV. Summary of Significant Changes Since 

Proposal 

A. What changes did we make to the 

Shipbuilding and Ship Repair (Surface 

Coating) NESHAP since proposal? 

B. What changes did we make to the Wood 

Furniture Manufacturing Operations 

NESHAP since proposal? 

V. Summary of Significant Comments and 

Responses 

A. Comments for Both Shipbuilding and 

Ship Repair (Surface 

Coating) and Wood Furniture 

Manufacturing Operations 

B. Wood Furniture Manufacturing 

Operations 

C. Shipbuilding and Ship Repair (Surface 

Coating) 

VI. Impacts of the Final Rules 

VII. Statutory and Executive Order Reviews 

A. Executive Orders 12866: Regulatory 

Planning and Review, and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 

B. Paperwork Reduction Act (PRA) 

C. Regulatory Flexibility Act (RFA) 

D. Unfunded Mandates Reform Act 

(UMRA) 

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 (NTTAA) 

J. Executive Order 12898: Federal Actions 

To Address Environmental Justice in 

Minority Populations and Low-Income 

Populations 

K. Congressional Review Act (CRA) 

I. General Information 

A. Does this action apply to me? 

Regulated Entities. Categories and 

entities potentially regulated by this 

action include: 


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Federal Register / Vol. 76, No. 224 / Monday, November 21, 2011 / Rules and Regulations 72051 

NESHAP and source category NAICS1 Code 

Shipbuilding and Ship Repair (Surface Coating) .................................................................................................................... 336611. 

Wood Furniture Manufacturing Operations ............................................................................................................................. 3371, 3372, 3379. 

1 North American Industry Classification System. 

This table is not intended to be 

exhaustive, but rather provides a guide 

for readers regarding entities likely to be 

affected by the final action for the 

source categories listed. To determine 

whether your facility would be affected, 

you should examine the applicability 

criteria in the appropriate NESHAP. If 

you have any questions regarding the 

applicability of either of these 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 

World Wide Web (WWW) through the 

Technology Transfer Network (TTN). 

Following signature, a copy of the final 

action will be posted on the TTN’s 

policy and guidance page for newly 

proposed and promulgated rules at the 

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

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

provides information and technology 

exchange in various areas of air 

pollution control. 

Additionally, information on the 

source category descriptions, detailed 

emissions and other data that were used 

as inputs to the risk assessments can be 

found at this site. 

C. Judicial Review 

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

Air Act (CAA), judicial review of this 

final action is available only by filing a 

petition for review in the United States 

Court of Appeals for the District of 

Columbia Circuit (the Court) by January 

20, 2012. 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 demonstration to 

us should submit a Petition for 

Reconsideration to the Office of the 

Administrator, U.S. EPA, Room 3000, 

Ariel Rios Building, 1200 Pennsylvania 

Ave. NW., Washington, DC 20460, with 

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

preceding FOR FURTHER INFORMATION

CONTACT section and the Associate 

General Counsel for the Air and 

Radiation Law Office, Office of General 

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

1200 Pennsylvania Ave. NW., 

Washington, DC 20460. 

II. Background 

Section 112 of the CAA establishes a 

two-stage regulatory process to address 

emissions of hazardous air pollutants 

(HAP) from stationary sources. In the 

first stage, after the EPA has identified 

categories of sources emitting one or 

more of the HAP listed in section 112(b) 

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

to promulgate NESHAP for those 

sources. ‘‘Major sources’’ are those that 

emit, or have the potential to emit, any 

single HAP at a rate of 10 tons per year 

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

combination of HAP. For major sources, 

these technology-based standards must 

reflect the maximum degree of emission 

reductions of HAP achievable (after 

considering cost, energy requirements 

and nonair quality health and 

environmental impacts) and are 

commonly referred to as maximum 

achievable control technology (MACT) 

standards. 

For MACT standards, the statute 

specifies certain minimum stringency 

requirements, which are referred to as 

floor requirements, and may not be 

based on cost considerations. See CAA 

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

MACT floor cannot be less stringent 

than the emission control that is 

achieved in practice by the best 

controlled similar source. The MACT 

standards for existing sources can be 

less stringent than floors for new 

sources, but they cannot be less 

stringent than the average emission 

limitation achieved by the bestperforming 12 percent of existing 

sources in the category or subcategory 

(or the best-performing five sources for 

categories or subcategories with fewer 

than 30 sources). In developing MACT, 

we must also consider control options 

that are more stringent than the floor 

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

establish standards more stringent than 

the floor, based on the consideration of 

the cost of achieving the emissions 

reductions, any 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. 

In the second stage of the regulatory 

process, we undertake two different 

analyses, as required by the CAA. 

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

to review 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. Within 

8 years after promulgation of the 

technology standards, CAA section 

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

public health remaining after 

application of the technology-based 

standards and to revise the standards, if 

necessary, to provide an ample margin 

of safety to protect public health or to 

prevent, taking into consideration costs, 

energy, safety and other relevant factors, 

an adverse environmental effect. In 

doing so, the EPA may adopt standards 

equal to existing MACT standards if the 

EPA determines that the existing 

standards are sufficiently protective. 

National Resources Defense Council 

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

(DC Cir. 2008). 

On December 21, 2010, the EPA 

published a proposed rule in the 

Federal Register for these two NESHAP 

that took into consideration the residual 

risk and technology review (RTR) 

analyses. For these NESHAP— 

Shipbuilding and Ship Repair (Surface 

Coating) and Wood Furniture 


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72052 Federal Register / Vol. 76, No. 224 / Monday, November 21, 2011 / Rules and Regulations 

1The memo to the docket, Impacts of 

Implementing a Limit on Formaldehyde Usage in 

the Wood Furniture Manufacturing Operations 

Source Category, dated October 19, 2010, shows 

that there are 27 facilities that exceed 400 pounds 

per year of formaldehyde emissions according to 

2005 NEI data. Calls to industry showed that many 

of these facilities have lowered their emissions of 

formaldehyde significantly since 2005 as shown in 

the memo Updated Formaldehyde Emissions from 

Select Wood Furniture Manufacturers, dated August 

3, 2011, in the docket for this action. 

Manufacturing Operations—this action 

provides the EPA’s final determinations 

and regulatory amendments pursuant to 

the RTR provisions of CAA section 112. 

For both NESHAP, we also are finalizing 

revisions to requirements in each 

NESHAP related to emissions during 

periods of startup, shutdown and 

malfunction (SSM). This action also 

addresses formaldehyde limits and the 

use of conventional spray technology for 

the Wood Furniture Manufacturing 

Operations NESHAP. 

III. Summary of the Final Rules 

A. What are the final rule amendments 

for the Shipbuilding and Ship Repair 

(Surface Coating) source category? 

The NESHAP for Shipbuilding and 

Ship Repair (Surface Coating) were 

promulgated on December 15, 1995 (60 

FR 64330), and codified at 40 CFR part 

63, subpart II. The shipbuilding and 

ship repair industry consists of 

establishments that build, repair, 

repaint, convert and alter ships which 

are marine or fresh-water vessels used 

for military or commercial operations. 

The source category covered by this 

MACT standard includes only the 

shipbuilding and ship repair surface 

coating operations that occur at facilities 

that are major sources of HAP. 

We are finalizing the Shipbuilding 

and Ship Repair (Surface Coating) rule 

as it was proposed, with no changes. For 

the reasons provided in the proposed 

rule and in the support documents in 

the docket, we have determined that the 

current MACT standards for 

shipbuilding and ship repair (surface 

coating) facilities reduce risk to an 

acceptable level, provide an ample 

margin of safety to protect public health 

and prevent an adverse environmental 

effect. We are, therefore, re-adopting the 

existing MACT standards to satisfy 

section 112(f) of the CAA. We have 

determined that the developments in 

technology would give minimal health 

benefits and are not cost effective. The 

costs of implementing developments in 

practices, processes or control 

technologies since promulgation of the 

MACT standards are disproportionate to 

the emission reduction that would be 

achieved and, therefore, we are not 

adopting additional technology 

standards pursuant to CAA section 

112(d)(6). 

We are finalizing changes to the 

Shipbuilding and Ship Repair (Surface 

Coating) MACT standards to eliminate 

the SSM malfunction exemption. These 

changes revise Table 1 in 40 CFR part 

63, subpart II, to indicate that several 

requirements of the 40 CFR part 63 

General Provisions related to periods of 

SSM do not apply. We are adding 

provisions to the Shipbuilding and Ship 

Repair (Surface Coating) MACT 

standards requiring sources to operate 

in a manner that minimizes emissions, 

removing the SSM plan requirement, 

clarifying the required conditions for 

performance tests and revising the SSMassociated recordkeeping and reporting 

requirements to require reporting and 

recordkeeping for periods of 

malfunction. It is required that all 

facilities comply with the NESHAP 

during startup and shutdown. We are 

also finalizing provisions, generally as 

proposed, to provide an affirmative 

defense against civil penalties for 

potential violations of emission 

standards caused by malfunctions, as 

well as criteria for establishing the 

affirmative defense. 

These revisions to the Shipbuilding 

and Ship Repair (Surface Coating) 

MACT standards are not expected to 

result in any emissions reduction or 

economic impacts. We have determined 

that facilities in this source category can 

meet the applicable emissions standards 

at all times. No changes in costs to 

industry are predicted. 

B. What are the final rule amendments 

for the Wood Furniture Manufacturing 

Operations source category? 

The NESHAP for Wood Furniture 

Manufacturing Operations were 

promulgated on December 7, 1995 (60 

FR 62930), and codified at 40 CFR part 

63, subpart JJ. The Wood Furniture 

Manufacturing Operations source 

category consists of establishments that 

produce a range of wood products, 

including wood kitchen cabinets, wood 

residential furniture, upholstered 

residential and office furniture, wood 

office furniture and fixtures, partitions, 

shelving, lockers and other wood 

furniture not included in one of the 

categories listed above. The source 

category covered by this MACT 

standard includes only the wood 

furniture manufacturing operations that 

occur at facilities that are major sources 

of HAP. 

In the proposal for this rule making, 

the EPA proposed a formaldehyde 

emissions limit of 400 pounds per 12- 

month period. As discussed in section 

IV.B.1 below, the EPA received 

comments concerning potential impacts 

on facilities with high production 

volume and determined that the 

proposed limit would not be cost 

effective for all facilities in the source 

category. For this reason, the EPA is 

finalizing two alternative compliance 

options. Under the authority of section 

112(d)(6) of the CAA, we are finalizing 

a limit on formaldehyde emissions by 

limiting formaldehyde content in 

coatings and contact coatings and 

contact adhesives to 1 percent by 

weight. As an alternative compliance 

option, we are allowing facilities to 

comply with a formaldehyde usage limit 

of 400 pounds per rolling 12-month 

period, as we originally proposed. Less 

than 20 facilities are known to exceed 

400 pounds per 12-month period based 

on 2005 National Emissions Inventory 

(NEI) data and communications with 

wood furniture manufacturing 

facilities.1 The phone calls indicated 

that there were reductions in emissions 

since the 2005 NEI and all but one of the 

facilities contacted were below 400 

pounds per 12-month period. This leads 

us to conclude that most of the facilities 

that exceeded 400 pounds of 

formaldehyde per 12 month period 

according to the 2005 NEI are now 

below that level. We are aware of at 

least one facility that has facilities with 

high production volume that still 

exceeds the 400 pound level. After 

receiving updated information, we 

concluded that the proposed 400 

pounds formaldehyde per rolling 12- 

month period usage limit was not cost 

effective as a mandatory formaldehyde 

limit for all facilities within the source 

category. For this reason, the EPA is 

adopting the 400 pound formaldehyde 

limit as an alternative requirement to 

the requirement to limit formaldehyde 

content to 1 percent in coatings and 

contact adhesives. The 400 pound limit 

would not be cost effective for facilities 

with high production volume because, 

while they use low-formaldehyde 

coatings, these facilities would still 

exceed the 400 pounds per 12-month 

period because of the quantity of 

coatings and contact adhesives applied. 

To further reduce formaldehyde 

emissions, these facilities would require 

the addition of costly control devices 

and/or reconstruction of their spray line 

system. For more information, see 

Estimated Cost Impact for Wood 

Furniture Manufacturing Industry To 

Comply With Proposed Formaldehyde 

Limit on Coating Operations Wood 

Furniture Manufacturing RTR, dated 

August 4, 2011, in the docket for this 

action. Such facilities can, however, 

cost-effectively comply with a standard 


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Federal Register / Vol. 76, No. 224 / Monday, November 21, 2011 / Rules and Regulations 72053 

2The concentrations of formaldehyde received 

from the known facility with high production 

volume exceeds 400 pounds per 12-month period 

is in the Estimated Cost Impact for Wood Furniture 

Manufacturing Industry To Comply With Proposed 

Formaldehyde Limit on Coating Operations Wood 

Furniture Manufacturing RTR, dated August 4, 

2011, in the docket for this action. 

3For more details, see Conversation with a 

Representative of Kitchen Cabinet Manufacturers 

Association (KCMA) Regarding Add-On Control 

Devices and High Formaldehyde Concentration in 

Coatings, dated June 23, 2011, in the docket for this 

action. 

4The definition of ‘‘conventional spray’’ can be 

found in the 1995 Wood Furniture Manufacturing 

Operations NESHAP. 

5See Developments in Practices, Processes, and 

Control Technologies, dated August 24, 2010 in the 

docket for this action. 

that limits the formaldehyde content of 

coatings and contact adhesives to 1 

percent.2 While the formaldehyde 

content of coating and contact adhesive 

formulations have been reduced since 

promulgation of the 1995 NESHAP, the 

EPA has received information that some 

facilities may still rely on formulations 

that contain greater than 1 percent 

formaldehyde.3 The EPA has 

determined that some of these facilities 

could not readily meet the 1 percent 

formaldehyde limit and so is allowing, 

as an alternative compliance option, the 

originally proposed 400 pound 

formaldehyde limit. 

We are also finalizing, with one 

modification, the proposed prohibition 

on the use of conventional spray 4 guns 

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

explained in the proposed rule and 

supporting documents in the docket, we 

have determined that use of nonconventional spray guns results in lower 

HAP emissions than use of conventional 

spray guns. When spraying a piece of 

wood furniture with a coating, there is 

a prescribed amount of coating to be 

applied to the wood surface. With the 

higher spray efficiency associated with 

non-conventional spray guns, less spray 

is generally required to apply the 

desired amount of coating so less 

coating is used. This means that less 

overspray will occur, creating fewer 

emissions. Conventional spray guns are 

now used infrequently in the wood 

furniture manufacturing industry, and 

the costs to use non-conventional spray 

guns are approximately equal to 

conventional spray guns. The EPA 

estimates that the switch to nonconventional spray guns does not incur 

a cost burden associated with decreased 

product consumption and cost.5

Considering information received 

during the comment period that some 

facilities route conventional spray gun 

overspray to control devices, we are 

modifying the proposed prohibition on 

the use of conventional spray guns to 

retain an exception in the NESHAP to 

allow the use of conventional spray 

guns if emissions from the finishing 

station are routed to a control device. 

See 40 CFR 63.803(h)(4). The efficiency 

of the control device, even when 

coupled with the conventional spray 

gun, reduces excess emissions better 

than a change to high efficiency spray 

technology. The EPA does not expect 

facilities will incur the significant cost 

of installing a control device for the sole 

purpose of using conventional spray 

guns. We expect the vast majority of 

facilities to use non-conventional 

applicators of wood furniture finishes, 

with only a small number of facilities 

choosing to use conventional spray guns 

with a control device. 

We are also finalizing changes to the 

Wood Furniture Manufacturing 

Operations NESHAP to eliminate the 

SSM exemption. These changes revise 

Table 1 in 40 CFR part 63, subpart JJ, to 

indicate that several requirements of the 

40 CFR part 63 General Provisions 

related to periods of SSM do not apply. 

We are adding provisions to the Wood 

Furniture Manufacturing Operations 

MACT standards requiring sources to 

operate in a manner that minimizes 

emissions, removing the SSM plan 

requirement, clarifying the required 

conditions for performance tests and 

revising the SSM-associated 

recordkeeping and reporting 

requirements to require reporting and 

recordkeeping for periods of 

malfunction. We are also adding 

provisions to provide an affirmative 

defense against civil penalties for 

exceedances of emission standards 

caused by malfunctions, as well as 

criteria for establishing the affirmative 

defense. 

We are finalizing language to clarify 

the applicability for Wood Furniture 

Manufacturing Operations to be 

consistent with surface coating rules 

issued after the promulgation of the 

Wood Furniture MACT standards in 

1995. These include the subparts for 

Surface of Miscellaneous Metal Parts 

and Products (MMMM), Surface Coating 

of Plastic Parts and Products (PPPP), 

Surface Coating of Wood Building 

Products (QQQQ), and Surface Coating 

of Metal Furniture (RRRR) of 40 CFR 

part 63. Subparts MMMM, PPPP, QQQQ 

and RRRR exempt surface coating 

operations that are subject to other 

subparts of 40 CFR part 63, such as the 

Wood Furniture Operations MACT 

standards. (See 40 CFR 63.3881(c)(6), 

63.4481(c)(7), 63.4681(c)(2), 

63.4881(c)(2)). Therefore, we are 

finalizing amendments to the Wood 

Furniture Operations MACT standards 

to acknowledge that surface coating 

operations that are subject to subparts 

MMMM, PPPP, QQQQ or RRRR of 40 

CFR part 63 are not subject to the Wood 

Furniture Manufacturing Operations 

standards. 

In this action, we are taking a step to 

improve data accessibility. Owners and 

operators demonstrating compliance 

using the test methods cited in 

§ 63.805(c), as an alternative to § 63.9(h), 

are not required but may submit 

electronic copies of required 

performance test reports through the 

Electronic Reporting Tool (ERT). The 

ERT transmits the electronic report 

through EPA’s Central Data Exchange 

network for storage in the WebFIRE 

database making submittal of data very 

straightforward and easy. The WebFIRE 

database was constructed to store 

performance test data for use in 

developing emission factors. A 

description of the ERT can be found at 

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

ert_tool.html. A description of the 

WebFIRE database is available at 

http://cfpub.epa.gov/oarweb/ 

index.cfm?action=fire.main. 

The ERT would allow for an 

electronic review process rather than a 

manual data assessment, making review 

and evaluation of the source-provided 

data and calculations easier and more 

efficient. Finally, having data submitted 

electronically, the EPA would be able to 

develop improved emission factors, 

make fewer information requests and 

promulgate better regulations. These 

revisions to the Wood Furniture 

Manufacturing Operations MACT 

standards are not expected to result in 

economic or quantifiable environmental 

impacts. We have determined that 

facilities in this source category can 

meet the applicable emissions standards 

at all times. 

C. What are the requirements during 

periods of startup, shutdown and 

malfunction? 

The Court vacated portions of two 

provisions in the 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). Specifically, the Court vacated 

the SSM exemption contained in 

40 CFR 63.6(f)(1) and 40 CFR 63.6(h)(1), 

that is part of a regulation, commonly 

referred to as the ‘‘General Provisions 

Rule,’’ that 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 emission standards during 

periods of SSM. 


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72054 Federal Register / Vol. 76, No. 224 / Monday, November 21, 2011 / Rules and Regulations 

While the Court’s ruling in Sierra 

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

2008), did not directly affect the two 

NESHAP addressed here, the legality of 

source category-specific SSM 

provisions, such as those in both 

NESHAP, are called into question based 

on the reasoning in that decision. 

Consistent with Sierra Club v. EPA, 

we have eliminated the SSM 

exemptions in these two NESHAP. We 

have also revised Table 1 (the General 

Provisions table) for subparts II and JJ in 

several respects. For example, we have 

eliminated the incorporation of the 

General Provisions’ requirement that the 

source develop an SSM plan. We have 

also eliminated or revised certain 

recordkeeping and reporting 

requirements that related to the SSM 

exemption. The EPA has attempted to 

ensure that we have removed any 

provisions that are inappropriate, 

unnecessary or redundant in the 

absence of the SSM exemption in the 

regulatory language. 

The EPA has not established different 

standards for periods of startup and 

shutdown for these NESHAP because 

we believe compliance with the 

standards is achievable during these 

periods. For facilities that comply with 

the NESHAP by using compliant 

coatings and contact adhesives, there 

are no startup or shutdown events that 

would cause emissions that are different 

than those that occur during normal 

operations. For facilities that use control 

devices, there is sufficient ability for the 

control device to be started prior to the 

spray lines being started and conversely 

shutdown after the spray lines have 

shutdown. In the example of a 

regenerative thermal oxidizer (RTO), 

supplemental fuel can be provided 

during startup and shutdown of the 

spray lines to prevent noncompliance. 

Thus, we are not aware of any technical 

limitations such that emissions from 

startup or shutdown cannot be 

controlled by control devices to the 

level achieved during normal 

operations. 

Periods of startup, normal operations 

and shutdown are all predictable and 

routine aspects of a source’s operations. 

However, by contrast, malfunction is 

defined as a ‘‘sudden, infrequent, and 

not reasonably preventable failure of air 

pollution control equipment, process 

equipment, or a process to operate in a 

normal or usual manner. * * *’’ 

(40 CFR 63.2). The EPA has determined 

that CAA section 112 does not require 

emissions that occur during periods of 

malfunction to 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 

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 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 data-gathering 

necessary to solve a problem. We 

generally defer to an agency’s decision 

to proceed on the basis of imperfect 

scientific information, rather than to 

‘‘invest the resources to conduct the 

perfect study’’). See also, Weyerhaeuser 

v. Costle, 590 F.2d 1011, 1058 (D.C. Cir. 

1978) (‘‘In the nature of things, no 

general limit, individual permit, or even 

any upset provision can anticipate all 

upset situations. After a certain point, 

the transgression of regulatory limits 

caused by ‘uncontrollable acts of third 

parties,’ such as strikes, sabotage, 

operator intoxication or insanity, and a 

variety of other eventualities, must be a 

matter for the administrative exercise of 

case-by-case enforcement discretion, not 

for specification in advance by 

regulation.’’). In addition, the goal of a 

best controlled or best performing 

source is to operate in such a way as to 

avoid malfunctions of the source, and 

accounting for malfunctions could lead 

to standards that are significantly less 

stringent than levels that are achieved 

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

approach to malfunctions is consistent 

with section 112 and is a reasonable 

interpretation of the statute. 

In the event that a source fails to 

comply with the applicable CAA section 

112 standards as a result of a 

malfunction event, the EPA would 

determine an appropriate response 

based on, among other things, the good 

faith efforts of the source to minimize 

emissions during malfunction periods, 

including preventative and corrective 

actions, as well as root cause analyses 

to ascertain and rectify excess 

emissions. The EPA would also 

consider whether the source’s failure to 

comply with the CAA section 112 

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 an 

exceedance of the relevant emission 

standard. (See, e.g., State 

Implementation Plans: Policy Regarding 

Excessive Emissions During 

Malfunctions, Startup, and Shutdown 

(Sept. 20, 1999); Policy on Excess 

Emissions During Startup, Shutdown, 

Maintenance, and Malfunctions (Feb. 

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

to the final rule an affirmative defense 

to civil penalties for exceedances of 

emission limits that are caused by 

malfunctions. See 40 CFR 63.782 

(Shipbuilding and Ship Repair (Surface 

Coating)) and 63.801 (Wood Furniture 

Manufacturing Operations) (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. See 40 CFR 63.781 

(Shipbuilding and Ship Repair (Surface 

Coating)) and 63.800 (Wood Furniture 

Manufacturing Operations). The source 

must prove by a preponderance of the 

evidence that it has met all of the 

elements set forth in the affirmative 

defense. See also 40 CFR 22.24. The 

criteria ensure that the affirmative 

defense is available only where the 

event that causes an exceedance of the 

emission limit meets the narrow 

definition of malfunction in 40 CFR 63.2 

(sudden, infrequent, not reasonably 


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preventable and not caused by poor 

maintenance and/or careless operation). 

For example, to successfully assert the 

affirmative defense, the source must 

prove by a preponderance of the 

evidence that excess emissions ‘‘[w]ere 

caused by a sudden, infrequent, and 

unavoidable failure of air pollution 

control and monitoring equipment, 

process equipment, or a process to 

operate in a normal or usual manner. 

* * *’’ The criteria also are designed to 

ensure that steps are taken to correct the 

malfunction, to minimize emissions in 

accordance with 40 CFR 63.783(b)(1) 

and 63.802(c) and to prevent future 

malfunctions. For example, the source 

must prove by a preponderance of the 

evidence that ‘‘[r]epairs were made as 

expeditiously as possible when the 

applicable emission limitations were 

being exceeded * * *’’ and that ‘‘[a]ll 

possible steps were taken to minimize 

the impact of the excess emissions on 

ambient air quality, the environment 

and human health * * *’’ In any 

judicial or administrative proceeding, 

the Administrator may challenge the 

assertion of the affirmative defense, and, 

if the respondent has not met its burden 

of proving compliance with 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 included 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 

limits may be exceeded under 

circumstances beyond the control of the 

source. The EPA must establish 

emission standards that ‘‘limit the 

quantity, rate, or concentration of 

emissions of air pollutants on a 

continuous basis.’’ 42 U.S.C. 

7602(k)(defining ‘‘emission limitation 

and emission standard’’). See generally 

Sierra Club v. EPA, 551 F.3d 1019, 1021 

(D.C. Cir. 2008). Thus, the EPA is 

required to ensure that section 112 

emissions limitations are continuous. 

The affirmative defense for malfunction 

events meets this requirement by 

ensuring that even where there is a 

malfunction, the emission limitation is 

still enforceable through injunctive 

relief. While ‘‘continuous’’ limitations, 

on the one hand, are required, there is 

also case law indicating that in many 

situations, it is appropriate for the EPA 

to account for the practical realities of 

technology. For example, in Essex 

Chemical v. Ruckelshaus, 486 F.2d 427, 

433 (D.C. Cir. 1973), the DC Circuit 

acknowledged that in setting standards 

under CAA section 111 ‘‘variant 

provisions’’ such as provisions allowing 

for upsets during startup, shutdown and 

equipment malfunction ‘‘appear 

necessary to preserve the reasonableness 

of the standards as a whole and that the 

record does not support the ‘never to be 

exceeded’ standard currently in force.’’ 

See also, Portland Cement Association 

v. Ruckelshaus, 486 F.2d 375 (D.C. Cir. 

1973). Though intervening case law 

such as Sierra Club v. EPA and the CAA 

1977 amendments undermine 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 excess emissions that 

are proven to be beyond the control of 

the source. By incorporating an 

affirmative defense, the EPA has 

formalized its approach to upset events. 

In a Clean Water Act setting, the Ninth 

Circuit required this type of formalized 

approach when regulating ‘‘upsets 

beyond the control of the permit 

holder.’’ Marathon Oil Co. v. EPA, 564 

F.2d 1253, 1272–73 (9th Cir. 1977). But 

see, Weyerhaeuser Co. v. Costle, 590 

F.2d 1011, 1057–58 (D.C. Cir. 1978) 

(holding that an informal approach is 

adequate). The affirmative defense 

provisions give the EPA the flexibility to 

both ensure that its emission limitations 

are ‘‘continuous’’ as required by 

42 U.S.C. 7602(k), and account for 

unplanned upsets and thus support the 

reasonableness of the standard as a 

whole. 

D. What are the effective and 

compliance dates of the standards? 

The revisions to the MACT standards 

being promulgated in this action are 

effective on November 21, 2011. For the 

two MACT standards addressed in this 

action, the compliance date for the 

revised SSM-related requirements is 

November 21, 2011. For the Wood 

Furniture Manufacturing Operations 

NESHAP, the compliance date for the 

1 percent formaldehyde coating and 

contact adhesive limit and the 

alternative 400 pound per 12-month 

formaldehyde use limit as well as the 

prohibition on the use of conventional 

spray guns is 3 years from the effective 

date of the standards, November 21, 

2014. Beyond the revised SSM 

provisions, there are no changes to the 

Shipbuilding and Ship Repair (Surface 

Coating) NESHAP. 

IV. Summary of Significant Changes 

Since Proposal 

A. What changes did we make to the 

Shipbuilding and Ship Repair (Surface 

Coating) NESHAP since proposal? 

Following the proposed notice of the 

RTR for Shipbuilding and Ship Repair 

(Surface Coating), the EPA did not 

receive any new data demonstrating any 

cost effective technology updates or data 

that would affect our analyses of risks. 

Accordingly, we have made no changes 

to the proposed rule language for the 

Shipbuilding and Ship Repair (Surface 

Coating) NESHAP. However, we 

corrected an inadvertent error made in 

the preamble to the proposed rule. In 

describing the Shipbuilding and Ship 

Repair (Surface Coating) source 

category, we incorrectly stated that there 

were approximately 85 facilities subject 

to the Shipbuilding and Ship Repair 

(Surface Coating) MACT, and that 71 of 

these 85 facilities, or approximately 84 

percent of the source category, were 

modeled for the risk analysis. At 

proposal, we actually estimated that 

there were 90 facilities subject to the 

MACT, and of those 90 facilities, we 

modeled approximately 94 percent, or 

85 facilities, in the risk analysis. This 

correction to the preamble text does not 

affect the estimated risks or any 

conclusions of the risk review. This 

correction only affects the inadvertent 

error made in the preamble text for the 

proposed rule. 

B. What changes did we make to the 

Wood Furniture Manufacturing 

Operations NESHAP since proposal? 

1. Formaldehyde Limit 

The potential risk reductions 

associated with advancement in coating 

and adhesive formulations, described 

below, led us to propose a formaldehyde 

limit of 400 pounds per rolling 12- 

month period, in part because we 

believed that this limit could be 

achieved cost-effectively. We stated in 

the proposal that there are many 

coatings and adhesives available that 

contain no or low quantities of 

formaldehyde, and we expected any 

facilities above the 400 pounds per 12 

month limit to be able to reduce their 

emissions below the 400 pound level by 

using coatings and adhesives with no or 

low formaldehyde. We proposed the 

formaldehyde usage limit under the 

authority of CAA section 112(f) and 

solicited comment on whether the 

proposed limit on formaldehyde use 

should be issued under CAA section 

112(d)(6). 

Comments received after proposal led 

the EPA to conduct further analyses of 


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72056 Federal Register / Vol. 76, No. 224 / Monday, November 21, 2011 / Rules and Regulations 

6For more information regarding cost estimates 

for compliance with the proposed 400 pound per 

year formaldehyde limit, refer to Estimated Cost 

Impact for Wood Furniture Manufacturing Industry 

to Comply with Proposed Formaldehyde Limit on 

Coating Operations Wood Furniture Manufacturing 

RTR, dated August 4, 2011. 

7 Discussion with a coatings manufacturer 

revealed that the label of ‘‘Low-Formaldehyde’’ is 

subjective and it trends towards lower and lower 

concentrations of formaldehyde. For more details, 

see Telephone Call with Valspar Regulatory Affairs 

Manager—Wood Coatings Wood Furniture 

Manufacturing RTR dated June 29, 2011 in the 

docket for this action. Also as noted previously, 

Valspar does not carry any products that exceed 1 

percent in formaldehyde concentration. 

8 It is necessary for some facilities to minimize 

levels of formaldehyde in the coating formulation 

to promote cross-linking nucleation. This process 

directly affects the quality and durability of the 

wood furniture. See notes from the Marsh Furniture 

Site Visit in the docket for this action for reference. 

9For additional information, please see memo to 

the docket, EPA Meeting with Kitchen Cabinet 

Manufacturers Association (KCMA) and Select 

Representatives, dated August 17, 2011. 

10The confirmation of most facilities was 

obtained in the following memos in the docket for 

this action: Telephone Call with Valspar Regulatory 

Affairs Manager—Wood Coatings on the 

Availability and Use of Low- and No-Formaldehyde 

Coatings, dated June 24, 2011. Also, one of the 

major manufacturers of wood furniture coatings, 

Valspar, does not carry any products that have 

greater than 1 percent formaldehyde leading to the 

conclusion that coatings greater than 1 percent 

formaldehyde are mostly unnecessary in the 

industry. http://www.valsparwood.com/ 

valsparwood/msds/msds.jsp. 

11For more information, see Updated 

Formaldehyde Emissions from Select Wood 

Furniture Manufacturers, dated August 3, 2011 and 

Impacts of Implementing a Limit on Formaldehyde 

Usage in the Wood Furniture Manufacturing 

Operations Source Category, dated October 19, 2011 

in the docket for this rule. 

the compliance costs associated with 

the proposed 400 pound usage limit. 

Data received from one facility, which 

already uses no- and low-formaldehyde 

content coatings and contact adhesives, 

indicated that reduction in 

formaldehyde use to 400 pounds per 12- 

month period would not be possible by 

simply using no- and low-formaldehyde 

content coatings and contact adhesives 

due to the size of its operations and the 

amount of coatings and contact 

adhesives used. To comply with the 

proposed 400 pound limit, a spray line 

reconfiguration (adding five drying/ 

curing ovens) would be needed. The 

cost-effectiveness of formaldehyde 

reduction for the spray line 

reconfiguration was estimated to be 

$658,000/ton of formaldehyde reduced 

annually. We believe other large 

operation facilities would face similar 

circumstances. The EPA does not have 

specific information on compliance 

costs for facilities other than Kitchen 

Kompact, but even if we assume all 

other wood furniture facilities with 

formaldehyde emissions above 400 

pounds per 12-month period in the 2005 

NEI database would reduce their 

formaldehyde emissions to 400 pound 

per 12-month period and would incur 

zero costs in doing so, the costeffectiveness would be $43,000/ton of 

formaldehyde reduced. We conclude 

this is not cost effective.6

Since the MACT was promulgated, 

manufacturers of coatings and contact 

adhesives have been able to replace 

formaldehyde with less toxic chemicals, 

resulting in products that are known in 

the industry as ‘‘low-formaldehyde’’ or 

‘‘no-formaldehyde.’’ This development 

is particularly evident in the 

reformulation of conversion varnishes 

used in kitchen cabinet manufacturing 

(see Conversation with Valspar 

Regarding Formaldehyde Replacement 

Chemicals in Coatings, dated August 4, 

2011, in the docket for this action).The 

EPA’s proposed 400 pound limit was 

based on the availability of lowformaldehyde coatings and contact 

adhesives and their use as the current 

state of technology. Although there is no 

formal industry definition of the term 

‘‘low-formaldehyde,’’ the EPA found 

that a formaldehyde content equal to or 

less than 1 percent by weight currently 

is consistent with the industry trend of 

continually reducing low formaldehyde 

formulations. We are aware of a range of 

values used in the industry to indicate 

‘‘low-formaldehyde’’ (from 0.1 percent 

to 1.0 percent). Based on information 

available to the EPA, we determined 

that a formaldehyde content level of 1 

percent is the lowest concentration that 

is clearly cost effective for the entire 

source category. We are, therefore, 

finalizing a limit of 1 percent 

formaldehyde by weight based on the 

availability of coatings and technical 

specifications necessary to maintain 

product quality and cost-effectiveness.7

A content less than 1 percent would not 

allow facilities the flexibility to use 

coatings and adhesives that are suitable 

for a range of different products, from 

cabinets to home furnishings, without 

compromising their quality, cost or 

production.8 Also, in many cases, the 1 

percent formaldehyde content limit will 

allow flexibility in different types of 

line configurations.9

The proposed formaldehyde limit 

(400 pounds per rolling 12-month 

period) under CAA section 112(f) was 

based on these grounds—that wood 

furniture manufacturers can and are 

reducing their formaldehyde emissions 

through the use of newer lowformaldehyde coating and contact 

adhesive formulations (see 75 FR 

80246). The limit of 1 percent 

formaldehyde in coatings and contact 

adhesives in this final rulemaking is an 

outgrowth of what the expected means 

of compliance was during the proposal 

for the proposed 400 pound limit. The 

EPA has confirmed that most facilities 

are using low- and no-formaldehyde 

coatings and contact adhesives (i.e., 

coatings and adhesives that have a 

formaldehyde concentration not 

exceeding 1 percent by weight).10

Facilities can thus achieve 

formaldehyde emissions reductions that 

are greater than those required under 

the existing MACT standard. The 

original Wood Furniture Manufacturing 

Operations NESHAP achieved an 89 

percent reduction in HAP. The industry, 

for the most part, has gone beyond the 

original NESHAP for formaldehyde 

emissions by continuing to use lower 

concentrations of formaldehyde in the 

coatings and contact adhesives. By 

codifying these practices, the EPA is 

setting a more stringent standard than 

was adopted in 1995 and will prevent 

backsliding into techniques and 

formulations used in the past. 

CAA section 112(d)(6) requires us to 

revise emissions standards taking into 

account developments in practices, 

processes and control technologies. 

Thus, to codify current industry practice 

since the MACT was promulgated and 

to prevent potential increases in 

formaldehyde emissions in the future 

from coating and contact adhesive use 

in the wood furniture manufacturing 

industry, we are finalizing, under 

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

formaldehyde emissions limits through 

two compliance options. One option is 

for new and existing sources to use only 

those coatings and contact adhesives 

with a formaldehyde content of 1 

percent by weight or less. As these lowformaldehyde coatings are readily 

available in the marketplace and are 

comparable in cost to other coating and 

contact adhesive formulations, we 

expect no additional costs associated 

with the use of low-formaldehyde 

coatings and contact adhesives. 

Moreover, we are retaining the 

proposed standard—a limit on the use 

of formaldehyde of 400 pounds per 

rolling 12-month period—as an 

alternative emission limit to the 1 

percent formaldehyde formulation limit. 

While the EPA recognizes it is not cost 

effective for at least one facility to 

achieve a limit on the use of 

formaldehyde of 400 pounds per 12 

month period, we acknowledge that 

most wood furniture manufacturing 

facilities’ formaldehyde use is already 

below this limit.11 It is likely that a 

small subset of low-emitting niche 

facilities use higher concentration 

formaldehyde coatings that may prefer 


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Federal Register / Vol. 76, No. 224 / Monday, November 21, 2011 / Rules and Regulations 72057 

12A representative of KCMA stated that there are 

facilities that use coatings and contact adhesives 

with higher concentrations of formaldehyde. For 

more information see, Conversation with a 

Representative of Kitchen Cabinet Manufacturers 

Association (KCMA) Regarding Add-On Control 

Devices and High Formaldehyde Concentration in 

Coatings, dated June 23, 2011 in the docket for this 

action. 

13The SAB peer review of RTR Risk Assessment 

Methodologies is available at: http:// 

yosemite.epa.gov/sab/sabproduct.nsf/ 

4AB3966E263D943A8525771F00668381/$File/the 

EPA-SAB-10-007-unsigned.pdf. 

14U.S. the EPA. (2009) Chapter 2.9, Chemical 

Specific Reference Values for Formaldehyde in 

Graphical Arrays of Chemical-Specific Health Effect 

Reference Values for Inhalation Exposures (Final 

Report). U.S. Environmental Protection Agency, 

Washington, DC, the EPA/600/R–09/061, and 

available online at http://cfpub.epa.gov/ncea/cfm/ 

recordisplay.cfm?deid=211003. 

15National Institutes for Occupational Safety and 

Health (NIOSH). Occupational Safety and Health 

Guideline for Formaldehyde; http://www.cdc.gov/ 

niosh/docs/81-123/pdfs/0293.pdf 

16WHO (2000). Chapter 5.8 Formaldehyde, in Air 

Quality Guidelines for Europe, second edition. 

World Health Organization Regional Publications, 

European Series, No. 91. Copenhagen, Denmark. 

Available on-line at http://www.euro.who.int/_data/ 

assets/pdf_file/0005/74732/E71922.pdf. 

17EPA considers this HQ of 1 not to represent an 

exceedance of the ACGIH value. 

to comply with the alternate 

formaldehyde use limit.12 These niche 

facilities use greater concentrations of 

formaldehyde to provide products to 

small specialized markets. The EPA is 

promulgating this 1 percent formulation 

formaldehyde limit to ensure that we 

are not limiting the production of 

facilities while still encouraging 

facilities to limit formaldehyde in their 

coatings and contact adhesives. In 

support of our proposed CAA section 

112(f)(2) residual risk determination, we 

conducted a risk assessment for the 

Wood Furniture Manufacturing 

Operations source category that 

provided estimates of the Maximum 

Individual Risk (MIR) posed by the 

allowable and actual HAP emissions 

from each source in the category, the 

distribution of cancer risks within the 

exposed populations, cancer incidence, 

hazard index for chronic exposures to 

HAP with noncancer health effects, and 

hazard quotients (HQ) for acute 

exposures to HAP with noncancer 

health effects. We found that risks 

remaining after compliance with the 

MACT standard are acceptable. 

In making our proposed ample margin 

of safety determination under CAA 

section 112(f)(2), we subsequently 

evaluated the risk reductions and costs 

associated with various emissions 

control options to determine whether 

we should impose additional standards 

to reduce risks further. We proposed a 

standard that would limit the use of 

formaldehyde to 400 pounds per rolling 

12 month period because we projected 

that such a limit would lead to 

reductions in cancer risks and the 

potential for acute noncancer health 

effects. Specifically, we estimated that 

the limit would reduce formaldehyde 

emissions by an estimated 9.46 tpy from 

the baseline level of 20.125 tpy. We also 

estimated the maximum individual 

incremental lifetime cancer risk would 

be reduced to approximately 10-in-1 

million from a baseline of 20-in-1 

million, the estimated cancer incidence 

due to emissions from the source 

category would be reduced by about 15 

percent nationwide, and the estimated 

maximum acute HQ would be reduced 

from 7 to 3, based on the Reference 

Exposure Levels (REL) for 

formaldehyde, and from 0.35 to 0.15, 

based on the acute exposure guideline 

level (AEGL–1) for formaldehyde. We 

believed that there would be either no 

or minimal additional costs associated 

with this option, as the cost of lowformaldehyde coatings and adhesives 

are approximately equal to other coating 

and adhesive products containing larger 

quantities of formaldehyde. Also, we 

believed there were minimal costs 

associated with the recordkeeping and 

reporting requirements for compliance 

with the rule. 

Our estimates of the source category 

maximum cancer risks have changed 

since proposal due to information 

received during the comment period. 

One facility that was included in the 

risk analysis at proposal has been 

determined to not be part of the Wood 

Furniture Manufacturing source 

category. The facility is a manufacturer 

of wood and melamine bowls and food 

service supplies and is not a wood 

furniture manufacturer. At proposal, the 

MIR estimated for the bowl 

manufacturing facility was 20 in-1- 

million due to formaldehyde emissions, 

based on actual emissions. This facility 

MIR was the highest in the source 

category. With the elimination of the 

bowl manufacturing facility from the 

category, the source category MIR is 10 

in-1-million due to emissions of 

ethylbenzene and formaldehyde, based 

on actual emissions. The bowl 

manufacturing facility also was one of 

two facilities for which we estimated an 

acute HQ of 7 for formaldehyde. The 

maximum acute formaldehyde HQ of 7 

for the other facility in the source 

category is unchanged. 

Since proposal we also have further 

evaluated acute exposures resulting 

from emissions from facilities in the 

source category. To better characterize 

the potential health risks associated 

with estimated worst-case acute 

exposures to HAP, and in response to a 

key recommendation from the Science 

Advisory Board’s (SAB) peer review of 

the EPA’s RTR risk assessment 

methodologies,13 we routinely have 

examined a wider range of available 

acute health metrics than we do for our 

chronic risk assessments. This is in 

response to the acknowledgement that 

there are generally more data gaps and 

inconsistencies in acute reference 

values than there are in chronic 

reference values. By definition, acute 

California-Reference Exposure Levels 

(CA–REL) represent a health-protective 

level of exposure, with no risk 

anticipated at or below those levels, 

even for repeated exposures; however, 

the health risk from higher-level 

exposures is unknown. Therefore, when 

a CA–REL is exceeded and an AEGL–1 

or emergency response planning 

guidelines (ERPG–1) level is available 

(i.e., levels at which mild effects are 

anticipated in the general public for a 

single exposure), we have used them as 

a second comparative measure. 

Historically, comparisons of the 

estimated maximum off-site 1-hour 

exposure levels have not been typically 

made to occupational levels for the 

purpose of characterizing public health 

risks in RTR assessments. For most 

chemicals, the 15 minute occupational 

ceiling values are set at levels higher 

than a 1 hour AEGL–1, making 

comparisons to them irrelevant unless 

the AEGL–1 or ERPG–1 levels are 

exceeded. This is not the case when 

comparing the available acute 

inhalation health effect reference values 

for formaldehyde.14

The worst-case maximum estimated 

1-hour exposure to formaldehyde 

outside the facility fence line for this 

source category is 0.47 mg/m3. This 

estimated worst-case exposure exceeds 

the 1-hour REL by a factor of 8 (HQREL

= 8) and is below the 1-hour AEGL–1 

(HQAEGL–1 = 0.4). Although this 

exposure estimate does not exceed the 

AEGL–1, it exceeds the workplace 

ceiling level guideline for the value 

developed by the NIOSH 15 ‘‘for any 15 

minute period in a work day’’ (NIOSH 

REL-ceiling value of 0.12 mg/m3; 

HQNIOSH = 4). Additionally, the 

estimated maximum acute exposure 

exceeds the Air Quality Guideline value 

that was developed by the World Health 

Organization 16 for 30-minute exposures 

(0.1 mg/m3; HQWHO = 5). The estimated 

HQ equals 1 when the ACGIH TLV– 

Ceiling value (0.37 mg/m3), a value 

defined as ‘‘not to be exceeded at any 

time,’’ is compared to the worst-case 

acute exposure screening level.17 As we 

proposed, the EPA concludes that the 


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72058 Federal Register / Vol. 76, No. 224 / Monday, November 21, 2011 / Rules and Regulations 

18A typical transfer efficiency of an HVLP gun is 

65–80 percent compared to 25–45 percent for 

conventional guns under similar conditions. This is 

a difference of 40 percent spray efficiency. When 

compared to an estimate of 90 percent efficiency of 

an add-on control device, the control device more 

than compensates for the 40 percent reduction in 

efficiency of guns. For more information on transfer 

efficiencies of spray technologies, see the memo to 

the docket, Impacts of Prohibiting the Use of 

Conventional Spray Guns in the Wood Furniture 

Manufacturing Operations Source Category, dated 

October 29, 2010. 

19See Summary of Public Comments and 

Responses for Shipbuilding and Ship Repair 

(Surface Coating) and Wood Furniture 

Manufacturing Operations NESHAP, dated October 

31, 2011, for summaries of all comments and our 

responses to them. 

risk posed by the source category is 

acceptable. Our estimate of maximum 

individual cancer risk for this source 

category has decreased since proposal. 

This decrease is due to a 

miscategorization of a facility within the 

source category. While our screening for 

acute impacts has identified the 

potential for acute formaldehyde 

exposures to exceed some public health 

and occupational exposure guidelines at 

some wood furniture facilities, after 

considering the limited extent to 

potential exposures, the fact that the 

maximum estimate of acute risk has not 

changed, the fact that one of these 

facilities no longer uses formaldehyde, 

and the conservative nature of this 

screening process, these additional 

estimates do not change our overall 

judgment of risk acceptability. As 

explained in the proposal, in 

accordance with the approach 

established in the Benzene NESHAP, 

the EPA weighs all health risk measures 

and information considered in the risk 

acceptability determination, along with 

the costs and economic impacts of 

emissions controls, technological 

feasibility, uncertainties, and other 

relevant factors, in making our ample 

margin of safety determination and 

deciding whether standards are 

necessary to reduce risks further. 

Considering all of this information, in 

particular our revised estimates of the 

maximum cancer risks associated with 

the Wood Furniture Manufacturing 

source category and our revised estimate 

of the costs of additional controls that 

would reduce risk further, the EPA has 

determined that additional standards 

under CAA section 112(f)(2) are not 

necessary to provide an ample margin of 

safety to protect public health. We 

further note that we are finalizing 

standards under our CAA section 

112(d)(6) authority that, while not 

expected to result in further reduction 

in current emissions or risk levels, are 

expected to reduce the emissions that 

would have been allowed under the 

1995 MACT standard. 

2. Advances in Spray Technology 

The EPA proposed to prohibit the use 

of conventional spray guns, as defined 

by the 1995 Wood Furniture 

Manufacturing NESHAP, pursuant to 

CAA section 112(d)(6). This final rule 

promulgates this ban on conventional 

spray guns with one modification. 

Based on comments received, we are 

retaining an existing provision allowing 

the use of conventional spray guns 

when the overspray is routed to a 

control device. As reflected in the 

comments, some facilities are using 

overspray from conventional spray guns 

to partially fuel control devices such as 

RTOs. This exception from the ban 

allows facilities to avoid having to 

supplement fuel to a control device. The 

efficiency of the control device more 

than sufficiently reduces excess 

emissions associated with the decreased 

spray efficiency of conventional spray 

guns.18 This exception for control 

devices is the sole exception for 

conventional spray gun use maintained 

from the 1995 NESHAP. 

The EPA estimates that the switch to 

high efficiency spray guns from 

conventional spray guns does not incur 

a cost burden due to decreased product 

consumption and cost. Some of the high 

efficiency spray devices are more costly 

than conventional guns, but the savings 

in coating costs attributed to the 

increased spray efficiency more than 

compensates for increased cost of spray 

technology. Because the EPA lacks data 

regarding the number of conventional 

spray guns used in the industry and the 

change of spray efficiency in replacing 

conventional spray technology, we 

cannot quantify emissions reductions 

due to changing spray technology. For 

further information regarding cost and 

emission reductions, refer to the 

proposed preamble of this rulemaking. 

V. Summary of Significant Comments 

and Responses 

In the proposed action, we requested 

public comments on our residual risk 

reviews, our technology reviews, 

proposed amendments related to 

periods of SSM, the proposed 

prohibition of conventional spray guns 

in the wood furniture manufacturing 

industry, the proposed limit on 

formaldehyde use in coatings and 

contact adhesives for the wood furniture 

manufacturing industry and 

clarification of rule provisions. We 

received written comments from 18 

commenters. Our responses to the 

public comments that changed the basis 

for our decisions, or are otherwise 

significant, are provided below.19

A. Comments for Both Shipbuilding and 

Ship Repair (Surface Coating) and 

Wood Furniture Manufacturing 

Operations 

Comment: A commenter pointed out 

that the EPA’s own data show greater 

emissions reductions are being achieved 

and able to be achieved. According to 

the commenter, the EPA recognizes that 

certain sources have ‘‘achieved’’ a level 

of ‘‘actual’’ emissions that is below the 

level allowed under the existing MACT 

standards. The commenter further states 

that the EPA explains that ‘‘the ‘actual’ 

emission levels are often lower than the 

emission levels that a facility might be 

allowed to emit and still comply with 

the MACT standards.’’ The commenter 

says that the EPA’s expectation that 

sources in these two categories are 

generally operating at half the level of 

emissions allowed under the existing 

MACT standard is at the core of its 

emission data analysis. Once the EPA 

has this information, it must factor this 

into the technology review under 

section 112(d)(6). Doing so should lead 

the EPA to revise the existing MACT for 

both source categories to require 

additional emission reductions. 

The commenter further states that as 

part of the required section 112(d)(6) 

rulemaking, the EPA can have no 

possible justification for failing to 

recalculate the MACT floors based on 

new technology or emission reductions 

now achieved by these source 

categories. 

The Court in the Hazardous Organic 

NESHAP (HON) decision stated that it 

did ‘‘not think the words ‘review, and 

revise as necessary’ ’’ required the EPA 

to recalculate the floors ‘‘from scratch’’ 

in that case. NRDC, 529 F.3d at 1084. In 

short, the NRDC Court expressly 

declined to decide whether the EPA was 

required to recalculate floors where, as 

here, there have been developments in 

practices, processes, and control 

technologies. 

As already noted above, for these 

source categories, there are such 

‘‘developments.’’ Therefore, the EPA 

cannot rely on the HON case to evade 

its duty to satisfy section 112(d)(6). The 

HON case did not authorize the EPA to 

ignore data showing that significant 

emission reductions below the ‘‘MACTallowable’’ emissions level have been 

‘‘achieved’’ in practice. Even under 

NRDC—assuming arguendo that its 

section 112(d)(6) holding is in any way 

relevant here—section 112(d)(6) 

requires the EPA to recalculate the 

MACT floor when there have been 

advances in technology (after taking 

account of the factors listed in section 

112(d)(6)), and when there is 


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20The EPA’s review and analysis for the 

shipbuilding source category can be found in 

Affordability of Add-on Controls for Surface 

Coating Operations at Shipbuilding and Ship 

Repair Facilities, dated 10/28/2010, and for the 

wood furniture surface category in Affordability of 

Lower VHAP Coating and Add-on Controls for 

Wood Furniture Manufacturing Operations, dated 

October 28, 2010. Other significant memos 

describing the EPAs technology review are: 

Developments in Practices, Processes, and 

Control Technologies for Wood Furniture 

Manufacturing Operations, dated August 24, 2010; 

Impacts of Prohibiting the Use of Conventional 

Spray Guns in the Wood Furniture Manufacturing 

Operations Source Category, dated October 19, 

2010; 

Cost Analyses for Control Options, dated 

September 27, 2010; Cost Analyses for Add-on 

Controls for Surface Coating Operations at 

Shipbuilding and Ship Repair Facilities, dated 

September 9, 2010. 

information showing that greater 

emission reductions are ‘‘achieved in 

practice.’’ Commenters contend that, 

based on the information the EPA has, 

it is therefore ‘‘necessary’’ for the EPA 

to strengthen the existing MACT floor to 

ensure it now complies with section 

112(d)(2)–(3). 

The EPA must consider and address 

whether the existing MACT, including 

the floor, remains lawful in view of the 

greater levels of emission reductions 

that have been achieved. 

Response: The commenter is mistaken 

on several grounds. First, the 

commenter asserts that ‘‘the EPA 

recognizes that certain sources have 

‘achieved’ a level of ‘actual’ emissions 

that is below the level allowed under 

the existing MACT standards’’ and cites 

the Notice of Proposed Rulemaking 

preamble at 75 FR at 80227. This was 

a qualitative, introductory statement 

about how the NEI and other sources of 

data typically contain estimates of 

actual emissions that are ‘‘often’’ lower 

than allowable emissions. The statement 

was not specific to Wood Furniture or 

Shipbuilding facilities or data and in 

any event did not contain any 

quantitative determination about actual 

emissions levels. 

Second, the commenter asserts that 

the EPA has an ‘‘expectation’’ that wood 

furniture and shipbuilding sources are 

‘‘generally operating’’ at half of 

allowable emissions and once the EPA 

has this information, it must use it 

under CAA section 112(d)(6) to revise 

MACT standards, including 

recalculating MACT floors under 

section 112(d)(2)–(3). The comment 

apparently refers to the MACT 

allowable to actual emissions ratio 

developed for the source categories in 

this rulemaking. The commenter is 

incorrect in characterizing this ratio as 

a determination of the level of actual 

emissions achieved in practice in either 

source category. The actual to allowable 

ratio represents the lowest 

concentration of HAP in a coating 

available to the industry compared to 

the maximum allowed under the MACT. 

The allowable ratio is used for 

providing a worst-case scenario for 

estimating allowable emissions from the 

source. As clarification, for these 

coating rules, the concentrations of HAP 

in the coatings are considered the 

emissions from the source. 

Third, the commenter is incorrect in 

asserting that the EPA must recalculate 

MACT floors under CAA section 

112(d)(2)–(3). As explained in prior RTR 

rulemakings, the EPA does not read 

112(d)(6) as requiring a reanalysis or 

recalculation of MACT floors. See 

proposed National Emission Standards 

for Coke Oven Batteries (69 FR 48388, 

48351 (August 9, 2004)). Instead, we 

interpret section 112(d)(6) as essentially 

requiring us to consider developments 

in pollution control in the industry 

(‘‘taking into account developments in 

practices, processes, and control 

technologies’’), and assessing the costs 

of potentially stricter standards 

reflecting those developments. We read 

this provision as providing the EPA 

with substantial latitude in weighing 

these factors and arriving at an 

appropriate balance in considering 

revisions to our standards. This 

discretion also provides us with 

substantial flexibility in choosing how 

to apply modified standards, if 

necessary, to the affected industry. 

The EPA reviewed other potential 

developments in practices, processes 

and control technologies for the Wood 

Furniture Manufacturing Operations 

and Shipbuilding and Ship Repair 

(Surface Coating) source categories and 

evaluated costs of potentially more 

stringent standards reflecting any such 

developments.20 The EPA believes this 

review and the revisions finalized in 

this rulemaking satisfy the EPA’s 

obligations under CAA 112(d)(6) for the 

Wood Furniture and Shipbuilding 

source categories. 

B. Wood Furniture Manufacturing 

Operations 

Comment: A commenter stated the 

EPA has provided no rational 

explanation for refusing to update the 

technology standards for both categories 

to meet the CAA section 112(d)(6) 

requirement, at minimum, by matching 

the limits of what sources have achieved 

and what other jurisdictions have 

required. The commenter stated: 

We urge the EPA to do so in the final rule. 

Where, as here, there are ‘‘significant 

developments’’ in technology, and where, as 

here, sources have achieved lower levels of 

emissions ‘‘in practice’’ than are ‘‘MACTallowable,’’ it is abundantly clear that 

§ 112(d)(6) requires the EPA to revise its 

standards in accordance with CAA 

§ 112(d)(2)–(3), (6), 42 U.S.C. § 7412(d)(2)– 

(3), (6). 

The commenter also inquires why the 

EPA did not adopt more stringent 

standards based on other regulating 

bodies within the country. 

Response: The EPA has concluded the 

technology review for the wood 

furniture manufacturing operations 

NESHAP by setting a formaldehyde 

limit based on formulation (1 percent by 

weight) of finish coatings and contact 

adhesives with a compliance alternative 

using no more than 400 pounds of 

formaldehyde per 12 months. Also 

under the technology review, we are 

adopting a restriction of conventional 

spray guns limiting use to when 

emissions from finishing applications 

are routed to a control device. The 

commenter refers to volatile organic 

compounds (VOC) standards of the Bay 

Area and South Coast Air Quality 

Management Districts (BAAQMD and 

SCAQMD). These two standards are 

nearly identical in VOC formulation 

limits. Through the RTR process, the 

EPA evaluates risk and technology 

developments associated with HAP for 

the source categories under 

consideration. Hazardous air pollutants 

and VOC describe different sets of 

compounds, although a large subset of 

VOC are considered HAP. As discussed 

in the preamble of the proposed rule, we 

estimate that of all VOC in wood 

furniture coatings, 50 percent on 

average are HAP. This is an average 

value that in fact varies from facility to 

facility and coating to coating, 

depending on the facility’s use of 

coatings specific to their operation. This 

is especially true for many niche 

companies. The EPA acknowledges 

BAAQMD and SCAQMD 

implementation of VOC limits, but these 

limits are not justified as nation-wide 

standards to reduce HAP from Wood 

Furniture Manufacturing. They are not 

technically feasible to be implemented 

nationally based on different operating 

and environmental conditions as well as 

the cost-effectiveness. By the 

commenter’s own admission, there are 

facilities that are having a difficult time 

complying with the BAAQMD standard 

within its region. Moreover, based on 

available information, the EPA 

maintains that both area regulations are 

not cost effective as national standards 

to reduce HAP. As discussed in the 

preamble to the proposed rule, adoption 

of the BAAQMD VOC limits would 

result in 56 tpy of HAP reduction at a 

cost of $30,000 per ton. Although the 

commenter asserts based on a 


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72060 Federal Register / Vol. 76, No. 224 / Monday, November 21, 2011 / Rules and Regulations 

21The value of 1.6 refers to Legacy Cabinets 

which, as the commenter asserts, no longer has any 

coatings or contact adhesives with formaldehyde in 

them. 

conversation with BAAQMD staff that 

companies in the area are generally 

complying with BAAQMD limits, the 

EPA already assumed compliance when 

we estimated HAP reductions and costeffectiveness of the BAAQMD limits. 

We have not changed our conclusion 

that the BAAQMD and SCAQMD 

regulation are not cost effective as a 

national standard. 

Comment: Two commenters stated 

that the facility with the highest 

reported formaldehyde emissions 

(Kitchen Kompact located in 

Jeffersonville, Indiana) is not a 

representative wood coating 

manufacturing facility. 

The commenters offered the following 

reasons: 

a. The facility finishes products 4 

days a week (as opposed to the EPA’s 

5-day assumption); 

b. The facility uses uses higher VOC 

coating without a control device; and 

c. The facility has all operations at 

one facility (other large facilities may 

spread operations over several 

facilities). 

Another commenter believed that it is 

arbitrary for the EPA to set the 

formaldehyde limit based on data 

indicating that 3 percent (more likely 

1 percent, see below) of facilities have 

formaldehyde emissions that could 

result in exceedances of the acute REL. 

The commenter offered the following 

reasons why the EPA’s conclusion that 

11 facilities (about 3 percent of the 

facilities) have formaldehyde emissions 

that could result in exceedances of the 

acute REL is problematic: 

a. The EPA identified four facilities 

for emissions verification, two of which 

were reported to have formaldehyde 

emissions. One of these two, 

Chromcraft, no longer uses coatings that 

contain or emit formaldehyde. The 

other, Kitchen Kompact, emits less 

formaldehyde than reported and is not 

a representative facility. Both facilities 

are problematic and indicate that the 

facility data used in the risk assessment 

are suspect. 

b. Three of the 11 facilities either no 

longer use formaldehyde-containing 

coatings or contact adhesives 

(Chromcraft) or have lower production 

than the EPA identified (Kitchen 

Kompact and Legacy Cabinets). 

Removing Chromcraft, only 10 facilities, 

or 2.5 percent of the total, have 

emissions that could result in 

exceedances of the acute REL. 

c. The refined modeling approach that 

used aerial photographs of the facilities 

identified two major problems with the 

Human Exposure Model-3 (HEM–3) 

screening results: 

• The REL, for several facilities, were 

overestimated due to global positioning 

system errors and; 

• Moving the ‘‘polar ring’’ has a 

significant impact on the risk 

assessment. An evaluation of the aerial 

map indicated that the REL needed to be 

lowered in some cases by as much as 74 

percent. While developing refined acute 

risks based on review of aerial maps is 

better than the screening approach, it is 

subjective at best. 

d. Three of the 10 facilities had 

refined predicted acute risks greater 

than 3. The remaining 7 facilities had 

refined predicted acute risks of less than 

3, and a majority of these had predicted 

acute risks just above 1 (1.5, 1.5, 1.6,21

1.8). The commenter suggested that the 

risks for these facilities should be 

discounted. 

After removing these data points 

discussed above, the commenter noted 

that there are six facilities 

(approximately 1 percent of the 

facilities) with acute risks greater than 1. 

The commenter noted that setting a 

standard based on six facilities (or 1 

percent of all wood furniture facilities) 

is unjustified and arbitrary. 

Response: The EPA acknowledges 

that there have been changes to 

formaldehyde emissions since 2005. 

According to the comments received as 

well as phone conversations with 

several facilities, the EPA has received 

indications that facilities have changed 

and lowered formaldehyde emissions, 

subsequent to the 2005 NEI data. These 

updates, however, are not being used to 

replace the 2005 NEI data because data 

were not provided to support the 

assertions. Because the data are 

unverified, the EPA used source data 

from 2005 NEI to keep a verified source 

for purposes of risk assessment. As 

discussed elsewhere in this preamble, 

we are not adopting any new or 

additional requirements based on the 

risk assessment under section 112(f). We 

have found risk to be acceptable for this 

rule making. 

Comment: Multiple commenters 

offered comments on the use of 

formaldehyde dose-response values. 

Two commenters supported the use of 

the Integrated Risk Management System 

(IRIS) dose-response value for 

formaldehyde in the risk assessment. 

One of the commenters stated that it 

is not only appropriate for the EPA to 

end its use of the Chemical Industry 

Institute of Toxicology (CIIT) Centers for 

Health Research risk value for 

formaldehyde emissions, doing the 

contrary would be arbitrary, capricious 

and unlawful. The commenter 

supported the IRIS value because it is 

more than 2,000 times greater than the 

CIIT value and thus more healthprotective. 

Alternatively, six commenters did not 

support the use of ‘‘outdated’’ and 

‘‘overly conservative’’ models, such as 

that used to derive the IRIS doseresponse value for formaldehyde. 

One commenter stated that the EPA 

must use the best available science in its 

risk assessment, which is not the IRIS 

value. The commenter noted that the 

EPA has previously determined that the 

IRIS value ‘‘no longer represents the 

best available science in the peer 

reviewed literature.’’ 69 FR 18,327, 

18,333 (Apr. 7, 2004). It was stated that 

the decision to discontinue use of CIIT 

model is inappropriate. The CIIT model 

should continue to be used to inform 

formaldehyde risk assessments. The 

criticisms of the model by Crump and 

colleagues lack foundation because the 

manipulations and alterations of the 

model on which they are based did not 

have an adequate basis in the 

underlying biology. 

Response: In 2004, the EPA 

determined that the Chemical Industry 

Institute of Toxicology (CIIT) cancer 

dose-response value for formaldehyde 

(5.5 × 10¥9 per mg/m3) was based on 

better science than the IRIS doseresponse value (1.3 × 10¥5 per mg/m3), 

and we switched from using the IRIS 

value to the CIIT value in risk 

assessments supporting regulatory 

actions. Based on subsequent published 

research, however, the EPA changed its 

determination regarding the CIIT model, 

and in 2010 the EPA returned to using 

1991 IRIS value. The National Academy 

of Sciences (NAS) completed its review 

of the EPA’s draft assessment in April 

of 2011 (http://www.nap.edu/ 

catalog.php?record_id=13142), and the 

EPA has been working on revising the 

formaldehyde assessment. The EPA will 

follow the NAS Report 

recommendations and will present 

results obtained by implementing the 

biologically based dose response (BBDR) 

model for formaldehyde. The EPA will 

compare these estimates with those 

currently presented in the External 

Review draft of the assessment and will 

discuss their strengths and weaknesses. 

As recommended by the NAS 

committee, appropriate sensitivity and 

uncertainty analyses will be an integral 

component of implementing the BBDR 

model. In the interim, we will present 

findings using the 1991 IRIS value as a 

primary estimate, and may also consider 

other information as the science 


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22This is according to the Agency for Toxic 

Substances and Disease Registry. http:// 

www.atsdr.cdc.gov/toxfaqs/tf.asp?id=219&tid=39. 

23AERMOD was developed by the American 

Meteorological Service (AMS)/EPA Regulatory 

Model Improvement Committee (AERMIC). This is 

the preferred model by EPA for modeling point, 

area and volume sources of continuous air 

emissions from facilities. 

evolves. The EPA notes that risk 

estimates based on both the IRIS and the 

CIIT unit risk estimates for 

formaldehyde were presented in the 

proposal for this final rule and that the 

risks were acceptable in both cases. 

Comment: A commenter stated that 

the best available science indicates that 

formaldehyde in outdoor air does not 

present a risk to human health. 

In support of their assertion, the 

commenter quoted WHO which stated 

that ‘‘[i]n ambient air, formaldehyde is 

quickly photo-oxidized in carbon 

dioxide. It also reacts very quickly with 

the hydroxyl radicals to give formic 

acid. The half-life estimated for these 

reactions is about one hour depending 

on the environmental conditions.’’ 

(WHO, 2010, at 103). Further, WHO 

concluded that because levels in 

ambient air are low, outdoor air does 

not contribute significantly to indoor 

pollution. Id. at 108. Therefore, the 

EPA’s proposed cap on formaldehyde 

use is an unnecessary restriction that 

will not reduce residual risk, if any, to 

public health. 

Response: Everyone is exposed to 

small amounts of formaldehyde in air 

and some foods and products. Nasal and 

eye irritation, neurological effects, and 

increased risk of asthma and/or allergy 

have been observed in humans 

breathing 0.1 to 0.5 ppm. Eczema and 

changes in lung function have been 

observed at 0.6 to 1.9 ppm. The 

Department of Health and Human 

Services (DHHS) has determined that 

formaldehyde is a known human 

carcinogen based on human and animal 

inhalation studies.22 The EPA considers 

formaldehyde as a ‘‘Probable Human 

Carcinogen’’ in IRIS; http:// 

www.epa.gov/iris/subst/0419.htm. The 

International Agency for Research on 

Cancer (IARC) classifies formaldehyde 

as a human carcinogen; http:// 

monographs.iarc.fr/ENG/Monographs/ 

vol88/index. 

Ambient modeling of formaldehyde in 

the National Scale Air Toxics 

Assessment (NATA) at major urban 

centers indicate that formaldehyde 

exposures over the long term for excess 

cancer risks could be up to 100 in a 

million with a national average of 20 in 

a million based upon the current IRIS 

Unit Risk Estimate (URE). Monitoring at 

the National Air Toxics Trends Sites for 

formaldehyde are in good agreement 

with the NATA, refer to the following 

Web site; http://www.epa.gov/ttn/atw/ 

nata2005/compare.html. 

The dispersion modeling for wood 

furniture manufacturing and 

shipbuilding does not incorporate 

photochemical decay. The EPA 

conducted a sensitivity analysis and 

determined this feature in AERMOD 23

does not have a significant effect on 

near-field exposures and is most 

relevant for population exposures in the 

far field especially for pollutants with 

half-lives less than 30 minutes. The rate 

of decay is also very dependent 

temporally with less reactivity occurring 

during evening hours as well as during 

colder seasons. For more information on 

the sensitivity analysis, please refer to 

Section 4.6: Sensitivity Analysis— 

Atmospheric Chemistry in ‘‘the EPA’s 

Risk and Technology Review (RTR) Risk 

Assessment Methodologies,’’ that was 

reviewed by the EPA’s SAB; http:// 

www.epa.gov/ttn/atw/rrisk/rtrpg.html. 

Based upon the rate of decay for 

formaldehyde varying from 1 hour to 16 

hours and the fact that the MIR location 

for this source category is located within 

300 meters of the emission source, we 

find that photochemical decay will not 

have an effect on the MIR. 

Comment: A commenter stated the 

EPA’s sole justification for setting the 

formaldehyde limit at 400 lbs per rolling 

12-month period appears to be the fact 

that this level is already contained in 

the existing MACT as a work practice 

requirement. Specifically, the 

commenter contended: 

The EPA has stated that adopting this level 

as an emission standard would create ‘‘either 

no or minimal additional costs.’’ Id. at 

80,247. This number was chosen in 1995, 

however. Where this number came from 

initially is unclear. While it may be 

convenient for industry to use a level with 

which it is already familiar and that would 

incur little or no extra cost, the EPA has not 

provided a reasoned explanation based on 

the required statutory health-based criteria 

for choosing this limit, rather than a more 

stringent limit. The record does not show 

why this is the appropriate limit to set as a 

residual risk standard in today’s world. 

The EPA must complete this analysis and 

set an appropriately protective standard to 

satisfy CAA section 112(f)(2). Specifically, 

the EPA must consider and address how 

much emissions would be reduced if the EPA 

set a lower standard, and what level of 

emission standard is required to provide an 

‘‘ample margin of safety.’’ 42 U.S.C. 

§ 7412(f)(2). The EPA must address what 

emission standard would be needed to bring 

the MIR down to 1-in-1-million as the statute 

directs. Id. The EPA must address what 

standard is needed ‘‘to provide maximum 

feasible protection against risks to health’’ by 

‘‘protecting the greatest number of persons 

possible’’ to a lifetime risk level no greater 

than 1-in-1 million. 75 Fed. Reg. at 80,223 

(quoting Benzene NESHAP). The need for 

this analysis is amplified by the fact that the 

EPA has recognized numerous ‘‘uncertainties 

related to the risk assessments, particularly 

for formaldehyde and glycol ether 

emissions.’’ Id. at 80,242–43. For example, 

the EPA has stated that it is concerned that 

its risk analysis has failed to account for 

additional formaldehyde emissions that 

likely occur during curing and gluing. Id. at 

80,243. The uncertain amount of additional 

risk unaccounted for provides another reason 

for the EPA to set a more protective 

formaldehyde emission standard than the 

level chosen as a work practice standard in 

1995. 

Response: The EPA is not finalizing 

the 400 pounds per rolling 12-month 

period formaldehyde use limit as 

proposed under 112(f) of the CAA. See 

section III of the preamble for a 

discussion of our final action. 

The EPA is promulgating a 

formaldehyde standard under section 

112(d)(6). Please refer to earlier 

descriptions in the preamble for further 

justification of section 112(d)(6) of the 

CAA. All wood furniture coatings and 

contact adhesives must be low- or noformaldehyde (concentration not to 

exceed 1 percent by weight 

formaldehyde) or, as a compliance 

alternative, formaldehyde emissions 

from wood furniture facilities must not 

exceed 400 pounds per rolling 12-month 

period. The compliance options are 

designed to promote continuing 

reductions in formaldehyde emissions 

from wood furniture without requiring 

equipment changes that are not cost 

effective or limiting in production. The 

formaldehyde limits will avoid 

constraining the production of wood 

furniture products facilities while 

encouraging facilities to maintain or 

decrease levels of formaldehyde within 

coatings and contact adhesives. 

The 400 pounds per 12 month period 

formaldehyde limit is based on the 

threshold level in Table 5 of the 1995 

NESHAP, which itself was a result of 

negotiations with industry. In this RTR, 

we took the familiar numerical 

threshold for formaldehyde emissions 

and made it a level not to exceed as a 

compliance alternative. This was done, 

in the proposal, to reduce the HQ of 

formaldehyde from 7 to 3 in a cost 

effective manner. Between proposal and 

promulgation, it became clear through 

public comments that this limit was not 

cost effective for the source category. As 

discussed in greater detail of section IV 

of this preamble, this limit is now a 

compliance alternative under section 

112(d)(6). 


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72062 Federal Register / Vol. 76, No. 224 / Monday, November 21, 2011 / Rules and Regulations 

24See: Impacts of Implementing a Limit on 

Formaldehyde Usage in the Wood Furniture 

Manufacturing Operations Source Category, 

October 19, 2010. This document is available in the 

docket for this rulemaking. 

25One of the major manufacturers of wood 

furniture coatings, Valspar, does not carry any 

products that have greater than 1 percent 

formaldehyde leading to the conclusion that 

coatings greater than 1 percent formaldehyde are 

mostly unnecessary in the industry. http:// 

www.valsparwood.com/valsparwood/msds/ 

msds.jsp 

26See U.S. the EPA, Memorandum, Impacts of 

Implementing a Limit on Formaldehyde Use in the 

Wood Furniture Manufacturing Operations Source 

Category dated October 19, 2010 in the docket for 

this action. 

The science is unclear as to the degree 

of formaldehyde curing under different 

environmental conditions. We did not 

receive any public comments containing 

substantive or relevant emissions 

information on formaldehyde emissions 

from curing at wood furniture facilities. 

Until there is more data relevant to how 

cure formaldehyde is formed and/or in 

what quantities, we are unable to set 

limits for such emissions. 

Comment: Five commenters disagreed 

with the 400 pound per 12 month 

period formaldehyde limit. Two of the 

commenters noted that limiting 

formaldehyde emissions from the wood 

furniture manufacturing operations 

source category is not supported by the 

EPA’s risk analysis and is therefore 

arbitrary. One commenter noted that the 

total estimated cancer incidence due to 

actual emissions is 0.005 excess cancer 

cases per year or one case in every 200 

years. 

Another commenter further stated 

that the limit is not necessary because 

formaldehyde emissions are likely to 

decrease further during the 2-year 

compliance period, without any further 

regulations. 

A commenter stated that the EPA is 

not justified in adopting this standard 

under CAA section 112(f)(2)(A) or CAA 

section 112(d)(6). On a related note, a 

different commenter questioned the 

authority of the EPA to establish a 400 

pounds per year limit on formaldehyde 

emissions. The basis for the 

commenter’s assertion is that a 400 

pound limit will limit production at 

facilities and will inhibit companies 

from meeting industry performance 

standards. A commenter noted that the 

EPA chose the 400 pound per year 

formaldehyde limit based on Table 5 of 

the MACT standard (List of VHAP of 

Potential Concern Identified by 

Industry). Currently, facilities that 

exceed their baseline level would need 

no further explanation to permitting 

authorities if the exceedance is no more 

than 15 percent above the baseline, or 

if the use is below the level in Table 5. 

According to the commenter, the EPA 

did not note the number of facilities that 

use the formaldehyde limit versus the 

baseline exceedance option. Without 

more data, it is not known if facilities 

use the 400 pound per year limit. The 

commenter assumed that most facilities 

comply via the exceedance of baseline 

option and not the 400 pound per year 

limit. 

A commenter also stated that the EPA 

improperly presumed a ‘‘one-size fits 

all’’ approach to coatings and adhesives 

is feasible in the manufacture of wood 

furniture/cabinet products. The EPA 

failed to take into account the 

performance, quality and customer 

requirements of these manufactured 

goods. The coatings and adhesives used 

for cabinet manufacture are specialized 

and may contain higher amounts of 

formaldehyde due to unique customer 

requirements. 

A commenter noted that based on the 

data in an EPA memorandum,24 the 

difference in price between coatings 

with formaldehyde and those that are 

formaldehyde-free is $3.02 per gallon. 

The commenter assumed a 1 percent 

formaldehyde content in the lower 

priced coating and a coating density of 

8 pounds per gallon. The $3.02 per 

gallon additional cost for a 

formaldehyde-free coating would reduce 

formaldehyde emissions by 0.08 pounds 

for a cost of $37.75 per pound of 

formaldehyde eliminated or $75,500 per 

ton. 

The commenter also evaluated the 

replacement cost for a topcoat 

containing 0.25-percent formaldehyde 

with a material containing only 0.005 

percent formaldehyde. The price 

differential of $3.58 per gallon resulting 

in a cost of over $365,000 per ton of 

formaldehyde eliminated. 

The commenter noted the high cost of 

replacement of contact adhesives. Based 

on the relatively low formaldehyde 

content in the current materials used, an 

incremental cost of only $1 to $2 per 

gallon could result in a cost exceeding 

$20,000 per ton. 

Response: Based on information 

received in the comments and further 

inquiry of the effects of the proposed 

limit of 400 pounds formaldehyde per 

rolling 12-month period, the EPA has 

revised the standard to require the 

formaldehyde content of coatings and 

contact adhesives to be less than or 

equal to 1 percent by weight with an 

alternate compliance option of the 400 

pounds per rolling 12-month period 

formaldehyde use limit, as explained 

elsewhere in the preamble. 

This approach is promulgated under 

the technology review requirements 

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

was determined to be acceptable under 

section 112(f)(2) of the CAA (residual 

risk). This technology rule will not limit 

production or result in significant costs 

for high production facilities and will 

encourage further reductions in the 

future without compromising the 

integrity of product. 

The EPA has information that 

indicates that most facilities will be able 

to cost-effectively comply with the 1 

percent by weight formaldehyde limit.25

A commenter asserts that coatings and 

contact adhesives that are 1 percent 

formaldehyde are cost effective. This 

level of formaldehyde will be sufficient 

to create the cross-linking nucleation 

that provides durability to wood 

furniture products in many cases. By 

also having a formulation restriction as 

an alternative to the 400 pound per year 

limit, there will not be a restriction of 

production. 

Comment: Multiple commenters 

offered comments related to the EPA’s 

estimate of the cost for meeting the 

proposed formaldehyde standard. 

One of the commenters noted that the 

EPA does not adequately support its 

cost estimate. The commenter stated 

that the EPA provided no data or 

analysis to support its assumption that 

all facilities operate in the same way or 

that the use of no- or low- formaldehyde 

coatings and contact adhesives would 

be suitable for use by all facilities. 

The commenter further noted that the 

EPA’s ‘‘cost analysis’’ consists of price 

information, from one supplier, of 13 

no- or low-formaldehyde coatings that 

the agency considers to be suitable for 

use in wood furniture manufacturing 

operations.26 The commenter noted that 

the EPA does not analyze whether the 

available coatings can be used in all 

applications or would meet industry 

performance standards. 

A different commenter stated that the 

technical and cost analyses the EPA 

puts forth in support of the 400 pound 

per year limit are not backed up by any 

critical analysis or actual data. 

According to the commenter, this 

analysis amounts to the assertion that, 

‘‘because some facilities are doing it, all 

facilities should be able to do it. This is 

an empty ‘analysis’ that provides no 

support for the proposed 400 lb per year 

limit. On top of that, the EPA also 

asserts that the new standard can be met 

‘at little or no extra cost.’ ’’ The 

commenter stated that a much more 

robust cost analysis would be needed to 

justify imposing an additional emissions 

limitation. 

Moreover, two commenters noted that 

the EPA does not address the additional 

costs incurred due to the potential need 


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27For further detail, see memo to the docket, 

Estimated Cost Impact for Wood Furniture 

Manufacturing Industry to Comply with Proposed 

Formaldehyde Limit on Coating Operations Wood 

Furniture Manufacturing RTR, dated July 15, 2011. 

28 It is necessary for some facilities to minimize 

levels of formaldehyde in the coating formulation 

to promote cross-linking nucleation. This process 

directly affects the quality and durability of the 

wood furniture. See notes from the Marsh Furniture 

Site Visit in the docket for this action for reference. 

29For additional information, please see memo to 

the docket, EPA Meeting with Kitchen Cabinet 

Manufacturers Association (KCMA) and Select 

Representatives, dated August 17, 2011. 

30The commenters referred to Table 4 in the 

EPA’s October 22, 2010, memorandum, Review of 

Glycol Ether Emissions Associated with Wood 

Furniture Manufacturing Source Category. 

for new equipment, the significant 

expenses to adapt to a new finish 

material. 

Response: Based on information 

received in comments, we have adopted 

a 1 percent by weight formaldehyde 

limit with a 400 pounds formaldehyde 

per rolling 12-month period alternative 

compliance limit that allows wood 

furniture manufacturers to use their 

discretion to reformulate to lower 

formaldehyde coatings and contact 

adhesives while not necessitating the 

expense of production line 

reconfiguration. As discussed above, we 

have updated the cost-effectiveness 

analysis for the proposed formaldehyde 

limit and concluded that the 400 pound 

per 12 month limit as proposed would 

not be cost effective.27

Using low-formaldehyde coatings and 

contact adhesives reflects developments 

in technology and was described in the 

proposal as the method to achieve 

compliance with the proposed 400 

pounds formaldehyde per rolling 12- 

month period. A limit of 1 percent 

formaldehyde in coatings and adhesives 

allows facilities the flexibility to use 

coatings and adhesives that are suitable 

for a range of different products, from 

cabinets to home furnishings, without 

compromising their quality, cost or 

production.28 Also, in many cases, the 

1 percent formaldehyde limit will allow 

flexibility in different types of line 

configurations.29

Comment: Multiple commenters 

noted that the EPA overestimated the 

health risk from glycol ethers by using 

ethylene glycol methyl ether as the 

representative glycol ether.30 Given that 

the use of glycol ethers other than 

ethylene glycol methyl ether is the norm 

for the industry, the risk associated with 

this class of compounds is overstated in 

the EPA’s analysis and no additional 

regulation of glycol ethers is warranted. 

The table contains a summary of 

speciated glycol ethers that are less 

toxic than ethylene glycol methyl ether. 

This shows, in the commenter’s 

opinion, the EPA’s overestimation of the 

health risk from these compounds. 

One commenter offered another 

assessment approach for glycol ethers: 

A more reasonable assessment of glycol 

ethers would be the example based on data 

from all facilities of a large wood furniture 

manufacturing company. Glycol ether 

emissions in 2010 totaled 3.76 tons, of which 

over 95 percent of the emissions were 

ethylene glycol monobutyl ether, with the 

remainder comprising diethylene glycol 

phenyl ether, diethylene glycol butyl ether 

and phenoxyethanol. Based on the 

preponderance of ethylene glycol monobutyl 

ether in these emissions, a risk assessment 

using the significantly higher REL for 

ethylene glycol monobutyl ether (REL = 14 

vs. REL for ethylene glycol methyl ether of 

0.093 ref: http://www.oehha.ca.gov/air/pdf/ 

acuterel.pdf) would conclude that the risk 

from glycol ethers is approximately 150 times 

lower than the EPA’s analysis shows. Even if 

the REL for another glycol ether—Ethylene 

Glycol Monoethyl Ether, REL 0.37—were 

used, the risk associated with glycol ethers 

would be reduced by a factor of 4. 

A second commenter offered a 

different option. The commenter 

recommended that the HQ derived by 

the EPA for Propyl Cellosolve®

(ethylene glycol mono-n-propyl ether 

(EGME)) be recalculated using an REL 

they propose for ethylene glycol phenyl 

ether (EGPE). The commenter contends 

that information provided in their 

comments demonstrates that sufficient 

information exists to derive an REL for 

EGPE, which would be more 

appropriate for risk management than 

the REL for EGME. 

Response: As we acknowledged in the 

proposal, the use of the EGME REL in 

our acute risk screening assessments 

provided us with a conservative (i.e., 

health-protective) estimate of potential 

acute health risks from glycol ethers 

when the exact speciation profile of 

emitted glycol ethers was uncertain. For 

this source category, approximately 70 

percent of facilities reporting glycol 

ether emissions reported them without 

any speciation information. Since there 

are no AEGL or ERPG values available 

for any glycol ethers, this further limits 

our ability to interpret the potential 

acute impacts of glycol ethers. Since 

this uncertainty remains, the EPA is not 

convinced that the use of less healthprotective assumptions (such as those 

recommended by the commenters) 

represents any improvement in the 

assessment of potential acute impacts. 

Even so, because of the healthprotective nature of our assessment, we 

do not believe that these estimated 

worst-case acute glycol ether impacts 

warrant the adoption of additional 

control measures. 

Comment: A commenter suggested 

that the EPA either define the term 

‘‘conventional’’ or mention the types of 

spray guns that are to be used to assist 

the regulated community in complying 

with this rule. The commenter 

suggested specific items, mentioned in 

the Paint Stripping and Miscellaneous 

Surface Coating Operations rule 

(Subpart HHHHHH): High-volume lowpressure (HVLP) spray guns, 

electrostatic applications, airless or airassisted airless spray guns, or airassisted airless equivalent technologies. 

Another commenter suggested that 

the EPA exclude the following 

components from the definition: 

Handheld non-refillable aerosol 

containers, touch-up markers, marking 

pens, and the application of paper film 

or plastic film which may be pre-coated 

with an adhesive by the manufacturer. 

These items are allowed by the 

miscellaneous metal parts and products 

NESHAP (subpart MMMM). 

Response: The existing Wood 

Furniture Manufacturing Operations 

MACT standards define ‘‘conventional 

air spray’’ as: 

a spray coating method in which the coating 

is atomized by mixing it with compressed air 

and applied at an air pressure greater than 10 

pounds per square inch (gauge) at the point 

of atomization. Airless and air assisted airless 

spray technologies are not conventional air 

spray because the coating is not atomized by 

mixing it with compressed air. Electrostatic 

spray technology is also not considered 

conventional air spray because an 

electrostatic charge is employed to attract the 

coating to the workpiece. 40 CFR 63.801(a). 

Many of the above suggestions for 

specific coating applications are clearly 

included or excluded by the definition 

of conventional spray provided in the 

1995 NESHAP. The technologies listed 

above such as touch-up markers, 

marking pens and manufacturer precoated adhesive film are not affected by 

the ban on use of conventional spray 

guns because they do not have a spray, 

i.e., they are not ‘‘a spray coating 

method.’’ Despite certain technologies 

being incorporated to other rule 

makings such as subpart HHHHHH, the 

commenter did not explain why these 

applications are necessary for this rule 

making. Examples of compliant spray 

technology include, but are not limited 

to HVLP spray guns, low-volume lowpressure guns (LVLP), electrostatic 

applications, airless and air-assisted 

airless spray guns. Low-capacity HVLP 

cup guns may be used for small batch 

operations. 

Comment: A commenter suggested 

that the EPA clarify in the rule that 

facilities with controls can continue to 

use conventional spray guns. Any 


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31A typical transfer efficiency of an HVLP gun is 

65–85 percent compared to 25–45 percent for 

conventional guns under similar conditions. This is 

a difference of 40 percent spray efficiency. When 

compared to an estimate of 90 percent efficiency of 

an add-on control device, the control device more 

than compensates for the 40 percent reduction in 

efficiency of guns. For more information on transfer 

efficiencies of spray technologies see the memo to 

the docket, Impacts of Prohibiting the Use of 

Conventional Spray Guns in the Wood Furniture 

Manufacturing Operations Source Category, dated 

October 29, 2010. 

32For more information please see Impacts of 

Prohibiting the Use of Conventional Spray Guns in 

the Wood Furniture Manufacturing Operations 

Source Category, dated October 19, 2010, in the 

docket for this action. 

emissions would be controlled via the 

control device. 

Another commenter noted that several 

RTOs, which rely on rich VOC waste 

streams, are being operated in the 

industry. To impose air-assisted-airless 

guns reduces RTO efficiency and 

requires more fossil fuel to be 

consumed. Regenerative thermal 

oxidizers are fueled by overspray and 

fossil fuels; when the quantity of 

overspray is decreased, the more fossil 

fuel that is needed to keep the RTO 

functioning. 

Response: The proposed rule has been 

revised to allow use of conventional 

spray guns when the overspray is routed 

to a functioning control device. The 

efficiency of the control device 

sufficiently reduces excess emissions 

associated with the decreased spray 

efficiency of conventional spray guns.31

Comment: Two commenters noted 

that the EPA offered an incorrect 

premise that all applicator 

improvements to increase transfer 

efficiency of the sprayed material will 

result in reduced emissions simply due 

to higher transfer efficiencies. The 

premise does not consider the low-use 

application considerations required for 

trials, touchups and product repairs. 

One of the commenters noted: 

HVLP and equivalent high efficiency 

applicators require larger volumes of 

premixed materials for application and are 

best used where large quantities of materials 

are intended (usually volumes larger than 

one gallon to as much as 30 gallons) and in 

production quantity applications where large 

surface areas are coated. Under large volume 

spray applications, the high transfer 

efficiency equipment results in reduced 

material consumptions resulting in lower 

operating costs and lower emissions. Under 

high volume application conditions, there are 

both economic and environmental 

advantages for operations to use high transfer 

efficiency equipment. 

However, for low use applications such as 

low volume color stains, trial materials, small 

touchups and repairs, mixing large batches 

for use in high transfer efficiency equipment 

will result in increased material consumption 

and waste, increased cleanup solvent 

consumption and waste, and, for catalyzed 

top coat materials, material loss through 

restricted pot life. The proposed applicator 

changes would result in an inability to 

properly mix small batch work coatings 

(stains, sealers, topcoats, etc.), resulting in 

more wasted raw material, increased cleanup 

material use, waste and emissions and an 

unnecessary increase in generated waste 

volume. 

Arguably, the use of low volume 

conventional spray equipment such as cup 

guns, etc., affords the industry a small 

volume spray alternative that would 

otherwise require a part to be re-finished or 

scrapped entirely. Failed finish repairs with 

minimal rework and reapplication to the part 

and in some instances salvage of an 

otherwise scrapped production part makes 

production and environmental sense. Indeed 

small quantity applicators (generally those 

with a restricted volume of 1.0 U.S. quart or 

less) may actually result in lower VOC and 

VHAP emissions due to the restricted use 

and inherent limited production capability of 

the application equipment itself. 

Such an overreaching requirement for all 

spray equipment to be of the HVLP spray 

type or equivalent is not reasonable and does 

not consider the other adverse environmental 

impacts discussed above. 

Response: First, we note the 

commenter agrees with the EPA that 

with large volume spray applications, 

which the commenter defines as larger 

than one gallon and in production 

quantities, high transfer efficiency 

equipment results in reduced material 

consumption, lower operating costs and 

lower emissions.32 In addition, we find 

that the application technology is 

available for small batches of coating to 

be applied with non-conventional spray 

guns such as HVLP cup guns. The use 

of HVLP cup guns will allow for smaller 

batch mixes. This prevents unneeded 

coating material going to waste. With 

the higher spray efficiency associated 

with non-conventional spray guns, a 

greater portion of the spray is coating 

the piece of wood. This means that there 

is less overspray leading to fewer 

emissions. Other touch-up applications 

such as touch-up markers and handheld 

non-refillable aerosol containers may 

still be used under the standard. For 

more information see Use of NonConventional Spray Technology in the 

Wood Furniture Manufacturing 

Industry, dated August 3, 2011 and 

Impacts of Prohibiting the Use of 

Conventional Spray Guns in the Wood 

Furniture Manufacturing Operations 

Source Category, dated October 19, 

2010, in the docket for this action. 

C. Shipbuilding and Ship Repair 

(Surface Coating) 

Comment: A commenter stated the 

EPA has provided no rational 

explanation for refusing to update the 

technology standards for both categories 

to meet the CAA section 112(d)(6) 

requirement, at minimum, by matching 

the limits of what sources have achieved 

and what other jurisdictions have 

required. The commenter stated: 

We urge the EPA to do so in the final rule. 

Where, as here, there are ‘‘significant 

developments’’ in technology, and where, as 

here, sources have achieved lower levels of 

emissions ‘‘in practice’’ than are ‘‘MACTallowable,’’ it is abundantly clear that 

§ 112(d)(6) requires the EPA to revise its 

standards in accordance with CAA 

§ 112(d)(2)–(3), (6), 42 U.S.C. § 7412(d)(2)– 

(3), (6). 

The commenter also inquires why the 

EPA did not adopt more stringent 

standards based on other regulating 

bodies within the country. 

Response: As explained in the 

proposal, in accordance with the 

approach established in the Benzene 

NESHAP, our analysis of risks for this 

source category showed that the 

maximum source-category cancer risks 

for all facilities are within the range of 

acceptable risks and that the maximum 

chronic noncancer risks are unlikely to 

cause health impacts. The EPA has 

weighed all health risk measures and 

information considered in the risk 

acceptability determination, along with 

the costs and economic impacts of 

emissions controls, technological 

feasibility, uncertainties, and other 

relevant factors, in making our ample 

margin of safety determination. The 

EPA has found the overall level of risk 

to be acceptable for the source category 

and the ample margin of safety 

determination for this source category 

indicates that potential controls are not 

cost effective and technically feasible. 

Comment: A commenter stated that 

the EPA has failed to fulfill its CAA 

section 112(f)(2) duty to fully assess and 

determine whether the risk from this 

source category is ‘‘acceptable.’’ The 

EPA concludes that this category creates 

an MIR of 20-in-1 million based on 

allowable emissions, and 10-in-1 

million based on estimated ‘‘actual’’ 

emissions. The EPA does not justify its 

conclusion on the record that this level 

of risk is acceptable. It simply lists the 

numbers and different factors, without 

explaining how it is analyzing these 

factors or why they have led the EPA to 

reach its conclusion. The EPA 

recognizes that disparities in risk exist, 

with individuals in certain demographic 

groups, including African Americans 

and people with income below the 

poverty level, more likely to experience 

a higher level of risk. As discussed 

above, the EPA cannot simply rely on 

the old Benzene presumption that any 


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level of risk under 100-in-1 million is 

acceptable. And, the fact that 4,000 

people is a ‘‘relatively low’’ number 

(i.e., the number estimated to be 

exposed to cancer risks of 1-in-1 million 

or greater) does not justify the EPA’s 

proposal of inaction to protect these 

people. CAA section 112(f)(2) requires 

the EPA to set standards for the 

maximum exposed individual. The 

individuals in this group of 4,000 are 

the very people whom the law requires 

the EPA to be concerned about. 

Response: We do not consider the 1- 

in-1 million MIR level as a ‘bright line’ 

mandated level of protection for 

establishing residual risk standards. In 

determining the ample margin of safety 

(i.e., the level of the standard), health 

risk is one factor that we must consider, 

along with other factors such as cost and 

technological feasibility. Balancing 

these and other factors with the ability 

to achieve meaningful risk reduction is 

a critical component of the residual risk 

rulemaking process. We considered 

reducing risks further but concluded 

that the technology required, such as a 

portable or permanent enclosure big 

enough to accommodate an entire ship 

or even a section of a ship to capture 

and control air emissions, would be cost 

prohibitive for this industry. Although 

our additional analysis of the 

demographics of the exposed 

population shows some disparities in 

risks between demographic groups for 

both categories, the EPA has determined 

that no group is exposed to an 

unacceptable level of risk. In general, 

the contribution of the source category 

to elevated facilitywide cancer or 

noncancer risks is low throughout the 

facilities in this source category. The 

primary processes driving the 

facilitywide cancer and noncancer risks 

are welding and blasting which are not 

regulated under this source activity. 

Comment: A commenter stated that 

the EPA has determined that maximum 

individual cancer risk at the 

facilitywide level is 200-in-1 million 

based on estimated ‘‘actual’’ emissions. 

This means that the risk is likely to be 

higher based on allowable emissions. 

Further, of the 41 facilities with 

facilitywide MIR of 1-in-1 million or 

more, 15 have shipbuilding and ship 

repair operations that contribute over 50 

percent to the facilitywide risks. Yet, the 

EPA does not propose to take any action 

to address that risk. The EPA should 

investigate ways to reduce this residual 

risk. It does not consider or address 

whether this level of facilitywide risk is 

acceptable at facilities where this source 

category is contributing so significantly. 

The EPA must do so to complete its 

CAA section 112(f)(2) duty. Its failure to 

consider regulatory options to address 

this residual risk is also arbitrary and 

capricious. At minimum, the EPA 

should consider whether to set a 

residual risk standard in order to reduce 

this high level of facilitywide risk. It 

should consider requiring extra work 

practice, reporting, monitoring and 

other measures for facilities that have 

the level of emissions putting them into 

this highest risk category. In sum, the 

EPA must address what standard is 

needed ‘‘to provide maximum feasible 

protection against risks to health’’ by 

‘‘protecting the greatest number of 

persons possible’’ to a lifetime risk level 

no greater than 1-in-1 million. (quoting 

Benzene NESHAP), and its facilitywide 

risk analysis has failed to complete this 

essential step. 

Response: We examined facilitywide 

risk to provide additional context to the 

source category risks. Facilitywide risks 

are driven by estimated emissions from 

blasting and welding sources at 

shipbuilding and ship repair facilities. 

These sources are not part of the 

Shipbuilding and Ship Repair (surface 

coating) source category. As discussed 

in the preamble to the proposed actions 

for this source category [75 FR 80237], 

we intend to list welding and blasting 

operations as a major source category 

under section 112(c)(5) of the CAA. 

Comment: A commenter stated that 

with respect to the Shipbuilding and 

Ship Repair standard, we are concerned 

that the EPA based its decision that no 

additional controls are needed and that 

the existing standard provides an ample 

margin of safety in part due to ‘‘the 

uncertainty and lack of data associated 

with one potential risk reduction option 

identified, and the technological 

infeasibility of the other option 

identified.’’ The commenter urged the 

EPA to obtain the necessary data 

regarding the two options to make a 

more informed decision, including 

contacting air quality agencies that 

currently regulate the source category. 

We compliment the EPA on its intention 

to list welding and blasting operations 

at shipbuilding and ship repair facilities 

as a major source category under section 

112(c)(5), but encourage the EPA to 

determine the extent to which this 

action will address the risks remaining 

at these facilities before deciding that 

relying on this strategy is sufficient. 

Another commenter stated that the 

EPA’s proposal fails to satisfy the 

‘‘ample margin’’ requirement. The EPA 

bases this conclusion in part on the fact 

that it has ‘‘not identified any data 

regarding the availability, use, 

performance and emissions associated 

with the use of lower overall volatile 

organic hazardous air pollutants 

(VOHAP) content or lower toxicity 

VOHAP content.’’ Id. The EPA’s 

conclusion is incorrect based on the use 

of the California standards in place. It is 

unclear why the EPA did not simply 

contact the four identified California air 

quality districts that have more stringent 

emission limits to attempt to gather 

these data. See Part IV.A.1, infra. This 

is the 8-year residual risk rulemaking 

and now is the time to collect and 

consider those data. The EPA may not 

defer or ignore this responsibility, or the 

fact that stricter standards are in use 

that it must address. The EPA also 

cannot justify a failure to set a residual 

risk standard on a lack of data. The EPA 

has failed to explain how the existing 

section 112(d) standard could provide 

the required ‘‘ample margin of safety.’’ 

One commenter also stated that where 

other jurisdictions have implemented 

stronger standards, this provides 

evidence that for the purposes of CAA 

section 112(d)(6), that more stringent 

limitations are achievable and have 

been achieved. 

However, the EPA states that there are 

differences between coating limits in the 

four air districts, and that the 1995 

MACT standard includes cold weather 

limits which are not present in the 

California standards due to its moderate 

climate. Neither of these points is a 

valid reason for the EPA not to further 

analyze and adopt stronger standards 

based on these California examples. 

While it may not be appropriate to 

adopt the California standards in full on 

a national basis, the EPA gives no 

rational justification for not analyzing 

how to take these models and use them 

to create an appropriate national 

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

The EPA concludes that ‘‘we do not 

have data to determine whether these 

lower-VOC content coatings could be 

applied nationwide.’’ Gathering and 

analyzing that data, starting with any 

information already compiled by the 

California districts, is precisely what the 

section 112(d)(6) rulemaking is designed 

for. A lack of data is not a lawful basis 

for the EPA to decline to adopt a 

stronger MACT standard. 

Response: The EPA researched 

current technologies for the 

shipbuilding and ship repair surface 

coating industry, and did not find any 

cost effective options that would make 

the current standard more stringent. 

Related to the marine coating limits in 

the MACT rule, we reviewed the general 

use and 22 specialty coating VOHAP 

limits and the lower limits that some 

states and air districts have adopted 

over the past decade for some of the 

specialty categories. Furthermore, we 

requested comment on the availability 


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33See following memos to the docket on costeffectiveness of control technologies: Cost Analyses 

for Add-on Controls for Surface Coating Operations 

at Shipbuilding and Ship Repair Facilities, dated 

September 2, 2010 and Affordability of Add-on 

Controls for Shipbuilding and Ship Repair Source 

Category, dated October 18, 2010. 

and feasibility of using lower VOHAP 

coatings but did not receive any data or 

information during the comment period. 

Following proposal, we did contact a 

shipyard in Maine, and found that the 

use of lower VOHAP coatings, such as 

those required to meet the limits set by 

some of the California air quality 

districts, is not feasible in climates that 

are not as moderate and, therefore, 

necessitate greater thinning of paint. 

As noted by the commenter, some 

jurisdictions have implemented more 

stringent standards that have resulted in 

changes to formulations being used in 

those locations. However, temperature 

and humidity issues experienced by 

other locations would make painting 

operations having to comply with the 

more stringent limitations more 

difficult, more expensive, and in some 

cases unachievable. 

There are many different coatings, 

and in some cases groups of specific 

coatings, comprising each of the marine 

coating categories. Over the past several 

years, there have been changes to some 

formulations with HAP solvent 

reductions and solvent replacements, 

but those are coating and manufacturer 

specific and not reflective of the entire 

marine coating category.33

Comment: A commenter stated the 

EPA recognizes that there are 

‘‘disparities in risks’’ for certain 

minority and lower-income individuals. 

For shipbuilding and ship repair, 

African Americans and people below 

the poverty level face a cancer risk of at 

least 1-in-1 million at a higher rate than 

their representation in the population. 

The EPA must consider potential ways 

to address the disproportionate impact 

on minority individuals and 

communities in deciding whether the 

likelihood of cancer risk is ‘‘acceptable’’ 

and whether there is action that could 

provide an ‘‘ample margin of safety’’ for 

these individuals and communities. 

Indeed, the EPA has recognized this 

since the development of the Benzene 

NESHAP, although it has failed to take 

action to address this (citing Benzene 

NESHAP factors, including ‘‘overall 

incidence of cancer or other serious 

health effects within the exposed 

population... other quantified or 

unquantified health effects’’). These 

additional factors are supposed to be 

used in addition to the MIR. It is neither 

acceptable, nor just, to avoid the need 

to reduce the correlation between race 

or income level and a disproportionate 

risk of cancer from toxic air pollution. 

The EPA’s proposals for inaction, in the 

face of the recognized disparities, 

contradict the Administrator’s professed 

commitment to ‘‘fair treatment’’ (EJ 

Guidance, infra note 30, at 3). With the 

knowledge it has, the EPA must, at 

minimum, consider the amount of 

background pollution faced by, and 

baseline health of, racial minorities and 

communities affected by these two 

source categories, including for the 

types of health effects that these HAP 

emissions have potential to exacerbate. 

These types of health data are readily 

available for the EPA to factor into its 

analysis and to use in proposing a 

regulatory response to the 

disproportionate risk found. It would be 

arbitrary and capricious to propose to 

take no further action at all after finding 

these disparities for both source 

categories. 

The commenter supports the EPA’s 

effort to gather demographic data. 

Merely looking at these numbers in a 

simplistic manner, however, is no 

substitute for a true environmental 

justice (EJ) analysis. The EPA should 

develop and undertake an actual 

analysis of the location and community 

effects of these source categories. It has 

sufficient data on the locations of these 

facilities to undertake an analysis of the 

effect of their emissions on the 

maximum exposed individual, the 

history of pollution faced in the most 

affected community, and to consider 

how to set a just standard in view of 

these lasting harms. 

Response: The demographic analysis 

found that African Americans and 

people below the poverty line may be 

somewhat disproportionately impacted 

by facilitywide air toxics emissions; 

however, emissions from the source 

category itself contribute minimally to 

these impacts. The EPA also found the 

overall level of risk from both source 

categories to be acceptable and to 

provide an ample margin of safety for all 

populations in close proximity to these 

sources. As noted previously, the EPA’s 

ability to quantitatively assess impacts 

on EJ communities is evolving. 

VI. Impacts of the Final Rules 

We estimate the only compliance 

costs for these amendments to the 

Shipbuilding and Ship Repair (Surface 

Coating) MACT standard to be those 

costs associated with facilities that 

choose to take advantage of the 

affirmative defense although there is no 

expectation that a facility will have a 

need for affirmative defense in this 

source category. These estimated costs 

are $3,141 per year, and are discussed 

in section VII.B. For these amendments 

to the Wood Furniture Manufacturing 

Operations MACT standards, we 

estimate the compliance costs to be 

$188,000 per year for the formaldehyde 

limit reporting and recordkeeping 

provisions, and $3,141 for facilities that 

choose to take advantage of the 

affirmative defense although there is no 

expectation that a facility will have a 

need for affirmative defense in this 

source category. These costs are 

discussed in section VII.B. 

VII. Statutory and Executive Order 

Reviews 

A. Executive Orders 12866: Regulatory 

Planning and Review, and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 

Under Executive Order 12866 (58 FR 

51735, October 4, 1993), this action is a 

‘‘significant regulatory action.’’ 

Accordingly, the EPA submitted this 

action to the Office of Management and 

Budget (OMB) for review under 

Executive Order 12866 and Executive 

Order 13563 (76 FR 3821, January 21, 

2011), and any changes made in 

response to OMB recommendations 

have been documented in the docket for 

this action. 

B. Paperwork Reduction Act (PRA) 

The information collection 

requirements in the final rules have 

been submitted for approval to OMB 

under the PRA, 44 U.S.C. 3501, et seq. 

The information collection requirements 

are not enforceable until OMB approves 

them. 

The information requirements are 

based on notification, recordkeeping 

and reporting requirements in the 

NESHAP General Provisions (40 CFR 

part 63, subpart A), which are 

mandatory for all operators subject to 

national emission standards. These 

recordkeeping and reporting 

requirements are specifically authorized 

by section 114 of the CAA (42 U.S.C. 

7414). All information submitted to 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. 

These final rules would require 

maintenance inspections of the control 

devices but would not require any 

notifications or reports beyond those 

required by the General Provisions. The 

recordkeeping requirements require 

only the specific information needed to 

determine compliance. 

When a malfunction occurs, sources 

must report them according to the 


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applicable reporting requirements of 40 

CFR part 63, subparts II and JJ. An 

affirmative defense to civil penalties for 

exceedances of emission limits that are 

caused by malfunctions is available to a 

source if it can demonstrate that certain 

criteria and requirements are satisfied. 

The criteria ensure that the affirmative 

defense is available only where the 

event that causes an exceedance of the 

emission limit meets the narrow 

definition of malfunction in 40 CFR 63.2 

(sudden, infrequent, not reasonable 

preventable, and not caused by poor 

maintenance and or careless operation) 

and where the source took necessary 

actions to minimize emissions. In 

addition, the source must meet certain 

notification and reporting requirements. 

For example, the source must prepare a 

written root cause analysis and submit 

a written report to the Administrator 

documenting that it has met the 

conditions and requirements for 

assertion of the affirmative defense. 

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 provides an 

administrative adjustment to these ICRs 

that estimates the costs of the 

notification, recordkeeping and 

reporting requirements associated with 

the assertion of the affirmative defense. 

The EPA’s estimate for the required 

notification, reports and records, 

including the root cause analysis, 

associated with a single incident totals 

approximately $3,141, and is based on 

the time and effort required of a source 

to review relevant data, interview plant 

employees, and document the events 

surrounding a malfunction that has 

caused an exceedance of an emission 

limit. The estimate also includes time to 

produce and retain the records 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. 

In these source categories, compliance 

is primarily achieved through 

reformulation of the coating. Because of 

this a malfunction of equipment, other 

than control devices, will not result in 

an exceedance of the standard. As noted 

previously, there is a small percentage 

of wood furniture facilities that use 

control devices for compliance; 

malfunctions with these devices are 

unlikely due to limited number in the 

industry compounding the unlikelihood 

of a malfunction. Therefore, we assert 

that although a cost for affirmative 

defense is possible, we believe that 

malfunctions are unlikely. Thus for 

these source categories, the EPA is not 

assigning any burden associated with 

affirmative defense. 

This burden estimate for Shipbuilding 

and Ship Repair (Surface Coating) has 

been assigned EPA ICR number 1712.07 

and for Wood Furniture Manufacturing 

Operations has been assigned EPA ICR 

number 1716.08, and both have been 

updated to reflect the estimate cost of 

availing the affirmative defense should 

a facility choose this option. 

For the Wood Furniture 

Manufacturing Operations MACT 

standards, the ICR document prepared 

by the EPA has also been amended to 

include burden changes associated with 

the amendments regarding the 

formaldehyde limit added to the rule. 

The change in respondents’ annual 

reporting and recordkeeping burden 

associated with these amendments for 

this collection (averaged over the first 

3 years after the effective date of the 

standards) is estimated to be 2,000 labor 

hours with a total cost of $188,000 per 

year for the formaldehyde limit 

reporting and recordkeeping provisions. 

There will be no capital costs associated 

with the information collection 

requirements of the final rule. 

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 

these ICRs are approved by OMB, the 

agency will publish a technical 

amendment to 40 CFR part 9 in the 

Federal Register to display the OMB 

control numbers for the approved 

information collection requirements 

contained in the final rules. 

C. Regulatory Flexibility Act (RFA) 

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 significant economic impact on 

a substantial number of small entities. 

Small entities include small businesses, 

small organizations and small 

governmental jurisdictions. 

For purposes of assessing the impact 

of these final rules on small entities, 

small entity is defined as: (1) A small 

business as defined by the Small 

Business Administration’s regulations at 

13 CFR 121.201; (2) a small 

governmental jurisdiction that is a 

government of a city, county, town, 

school district or special district with a 

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

a small organization that is any not-forprofit enterprise which is independently 

owned and operated and is not 

dominant in its field. 

After considering the economic 

impacts of these final rules on small 

entities, I certify that this action will not 

have a significant economic impact on 

a substantial number of small entities. 

The costs associated with the new 

requirements in these final rules (i.e., 

the formaldehyde use limit and 

conventional spray gun prohibition in 

the Wood Furniture Manufacturing 

Operations standards) are negligible as 

discussed above. 

D. Unfunded Mandates Reform Act 

(UMRA) 

These rules do not contain a federal 

mandate that may result in expenditures 

of $100 million or more for state, local 

and tribal governments, in the aggregate, 

or the private sector in any 1 year. Thus, 

these rules are not subject to the 

requirements of sections 202 or 205 of 

UMRA. 

These rules also do not contain 

regulatory requirements that might 

significantly or uniquely affect small 

governments. They contain no 

requirements that apply to such 

governments or impose obligations 

upon them. 

E. Executive Order 13132: Federalism 

This action does not have federalism 

implications. It will not have substantial 

direct effects on the states, on the 

relationship between the national 

government and the states or on the 

distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132. These final 

rules primarily affect private industry 

and do not impose significant economic 

costs on state or local governments. 

Thus, Executive Order 13132 does not 

apply to this action. 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

This action does not have tribal 

implications, as specified in Executive 

Order 13175 (65 FR 67249, November 9, 

2000). It will not have a 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. 


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G. Executive Order 13045: Protection of 

Children From Environmental Health 

Risks and Safety Risks 

This action is not subject to Executive 

Order 13045 (62 FR 19885, April 23, 

1997), because it is not economically 

significant as defined in Executive 

Order 12866, and because the EPA does 

not believe the environmental health or 

safety risks addressed by this action 

present a disproportionate risk to 

children. This action will not relax the 

control measures on existing regulated 

sources, and the EPA’s risk assessments 

(included in the docket for the proposed 

rules) demonstrate that the existing 

regulations are 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 in Executive 

Order 13211 (66 FR 28355 (May 22, 

2001)), because it is not likely to have 

a significant adverse effect on the 

supply, distribution or use of energy. 

This action will not create any new 

requirements for sources in the energy 

supply, distribution or use sectors. 

Further, we have concluded that these 

final rules are not likely to have any 

adverse energy effects. 

I. National Technology Transfer and 

Advancement Act (NTTAA) 

Section 12(d) of the NTTAA of 1995, 

Public Law Number 104–113, 12(d) (15 

U.S.C. 272 note) directs the EPA to use 

voluntary consensus standards (VCS) in 

its regulatory activities, unless to do so 

would be inconsistent with applicable 

law or otherwise impractical. The VCS 

are technical standards (e.g., materials 

specifications, test methods, sampling 

procedures and business practices) that 

are developed or adopted by VCS 

bodies. The NTTAA directs the EPA to 

provide Congress, through OMB, 

explanations when the agency decides 

not to use available and applicable VCS. 

This action does not involve technical 

standards. Therefore, the EPA did not 

consider the use of any VCS. 

J. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

Executive Order 12898 (59 FR 7629, 

February 16, 1994) establishes federal 

executive policy on 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 lowincome populations in the United 

States. 

The EPA has determined that these 

final rules will not have 

disproportionately high and adverse 

human health or environmental effects 

on minority or low-income populations, 

because we have concluded that the 

existing rules adequately protect human 

health with an adequate margin of safety 

and the final rules do not decrease the 

level of protection provided to human 

health or the environment. To examine 

the potential for any EJ issues that might 

be associated with each source category, 

we evaluated the distributions of HAPrelated cancer risks across different 

social, demographic and economic 

groups within the populations living 

near the facilities where these source 

categories are located. Our analyses 

show that, for the two source categories 

evaluated, there is no potential for an 

adverse environmental effect or human 

health multi-pathway effects, and that 

acute and chronic noncancer health 

impacts are unlikely. Our additional 

analysis of facilitywide risks showed 

that the maximum facilitywide cancer 

risks for all source categories are within 

the range of acceptable risks and that 

the maximum chronic noncancer risks 

are unlikely to cause health impacts. 

Although our additional analysis of the 

demographics of the exposed 

population shows some disparities in 

risks between demographic groups for 

both categories, the EPA has determined 

that no group is exposed to an 

unacceptable level of risk. 

The rules will not relax the control 

measures on emissions sources 

regulated by the rules, and therefore, 

will not increase risks to any 

populations exposed to these emissions 

sources. 

K. Congressional Review Act (CRA) 

The CRA, 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 final 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 November 21, 2011. 

List of Subjects for 40 CFR Part 63 

Environmental protection, 

Administrative practice and procedures, 

Air pollution control, Hazardous 

substances, Intergovernmental relations, 

Reporting and recordkeeping 

requirements. 

Dated: November 4, 2011. 

Lisa P. Jackson, 

Administrator. 

For the reasons stated in the 

preamble, Title 40, chapter I, of the 

Code of Federal Regulations (CFR) is 

amended as follows: 

PART 63—[AMENDED] 

■ 1. The authority citation for part 63 

continues to read as follows: 

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

Subpart II—[Amended] 

■ 2. Section 63.781 is amended by 

revising paragraph (d) to read as 

follows: 

§ 63.781 Applicability. 

* * * * * 

(d) If you are authorized in 

accordance with 40 CFR 63.783(c) to use 

an add-on control system as an 

alternative means of limiting emissions 

from coating operations, in response to 

an action to enforce the standards set 

forth in this subpart, you may assert an 

affirmative defense to a claim for civil 

penalties for exceedances of such 

standards that are caused by a 

malfunction, as defined in 40 CFR 63.2. 

Appropriate penalties may be assessed, 

however, if you fail to meet your burden 

of proving all the requirements in the 

affirmative defense. The affirmative 

defense shall not be available in 

response to claims for injunctive relief. 

(1) To establish the affirmative 

defense in any action to enforce such a 

limit, you must timely meet the 

notification requirements in paragraph 

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

a preponderance of evidence that: 

(i) The excess emissions: 

(A) Were caused by a sudden, 

infrequent and unavoidable failure of air 

pollution control and monitoring 

equipment, process equipment or a 

process to operate in a normal or usual 

manner; and 

(B) Could not have been prevented 

through careful planning, proper design 


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Federal Register / Vol. 76, No. 224 / Monday, November 21, 2011 / Rules and Regulations 72069 

or better operation and maintenance 

practices; and 

(C) Did not stem from any activity or 

event that could have been foreseen and 

avoided, or planned for; and 

(D) Were not part of a recurring 

pattern indicative of inadequate design, 

operation, or maintenance; and 

(ii) Repairs were made as 

expeditiously as possible when the 

applicable emission limitations were 

being exceeded. Off-shift and overtime 

labor were used, to the extent 

practicable to make these repairs; and 

(iii) The frequency, amount and 

duration of the excess emissions 

(including any bypass) were minimized 

to the maximum extent practicable 

during periods of such emissions; and 

(iv) If the excess emissions resulted 

from a bypass of control equipment or 

a process, then the bypass was 

unavoidable to prevent loss of life, 

personal injury or severe property 

damage; and 

(v) All possible steps were taken to 

minimize the impact of the excess 

emissions on ambient air quality, the 

environment and human health; and 

(vi) All emissions monitoring and 

control systems were kept in operation 

if at all possible, consistent with safety 

and good air pollution control practices; 

and 

(vii) All of the actions in response to 

the excess emissions were documented 

by properly signed, contemporaneous 

operating logs; and 

(viii) At all times, the affected source 

was operated in a manner consistent 

with good practices for minimizing 

emissions; and 

(ix) A written root cause analysis has 

been prepared, the purpose of which is 

to determine, correct and eliminate the 

primary causes of the malfunction and 

the excess emissions resulting from the 

malfunction event at issue. The analysis 

shall also specify, using best monitoring 

methods and engineering judgment, the 

amount of excess emissions that were 

the result of the malfunction. 

(2) Notification. The owner or 

operator of the facility experiencing an 

exceedance of its emission limit(s) 

during a malfunction shall notify the 

Administrator by telephone or facsimile 

(FAX) transmission as soon as possible, 

but no later than 2 business days after 

the initial occurrence of the 

malfunction, if it wishes to avail itself 

of an affirmative defense to civil 

penalties for that malfunction. The 

owner or operator seeking to assert an 

affirmative defense shall also submit a 

written report to the Administrator 

within 45 days of the initial occurrence 

of the exceedance of the standard in this 

subpart to demonstrate, with all 

necessary supporting documentation, 

that it has met the requirements set forth 

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

owner or operator may seek an 

extension of this deadline for up to 30 

additional days by submitting a written 

request to the Administrator before the 

expiration of the 45 day period. Until a 

request for an extension has been 

approved by the Administrator, the 

owner or operator is subject to the 

requirement to submit such report 

within 45 days of the initial occurrence 

of the exceedance. 

■ 3. Section 63.782 is amended by 

adding a definition for ‘‘affirmative 

defense’’ to read as follows: 

§ 63.782 Definitions. 

* * * * * 

Affirmative defense means, in the 

context of an enforcement proceeding, a 

response or a defense put forward by a 

defendant, regarding which the 

defendant has the burden of proof, and 

the merits of which are independently 

and objectively evaluated in a judicial 

or administrative proceeding. 

* * * * * 

■ 4. Section 63.783 is amended by 

redesignating paragraphs (b)(1) and 

(b)(2) as (b)(2) and (b)(3) and adding a 

new paragraph (b)(1) to read as follows: 

§ 63.783 Standards. 

* * * * * 

(b) * * * 

(1) 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. 

* * * * * 

■ 5. Section 63.785 is amended by 

adding paragraph (e) before Figure 1 to 

§ 63.785 to read as follows: 

§ 63.785 Compliance procedures. 

* * * * * 

(e) Continuous compliance 

requirements. You must demonstrate 

continuous compliance with the 

emissions standards and operating 

limits by using the performance test 

methods and procedures in § 63.786 for 

each affected source. 

(1) General requirements. 

(i) You must monitor and collect data, 

and provide a site specific monitoring 

plan, as required by §§ 63.783, 63.785, 

63.786 and 63.787. 

(ii) Except for periods of monitoring 

system malfunctions, repairs associated 

with monitoring system malfunctions, 

and required monitoring system quality 

assurance or quality control activities 

(including, as applicable, calibration 

checks and required zero and span 

adjustments), you must operate the 

monitoring system and collect data at all 

required intervals at all times the 

affected source is operating, and periods 

of malfunction. Any period for which 

data collection is required and the 

operation of the Continuous Emissions 

Monitoring System (CEMS) is not 

otherwise exempt and for which the 

monitoring system is out-of-control and 

data are not available for required 

calculations constitutes a deviation from 

the monitoring requirements. 

(iii) You may not use data recorded 

during monitoring system malfunctions, 

repairs associated with monitoring 

system malfunctions or required 

monitoring system quality assurance or 

control activities in calculations used to 

report emissions or operating levels. A 

monitoring system malfunction is any 

sudden, infrequent, not reasonably 

preventable failure of the monitoring 

system to provide valid data. 

Monitoring system failures that are 

caused in part by poor maintenance or 

careless operation are not malfunctions. 

The owner or operator must use all the 

data collected during all other periods 

in assessing the operation of the control 

device and associated control system. 

(2) [Reserved] 

* * * * * 

■ 6. Section 63.786 is amended by 

adding paragraph (e) to read as follows: 

§ 63.786 Test methods and procedures. 

* * * * * 

(e) For add-on control systems 

approved for use in limiting emissions 

from coating operations pursuant to 

§ 63.783(c), 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 

demonstrate the conditions present 

during performance tests. 

■ 7. Section 63.788 is amended by 

adding paragraph (b)(5) and revising 

paragraph (c) to read as follows: 


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72070 Federal Register / Vol. 76, No. 224 / Monday, November 21, 2011 / Rules and Regulations 

§ 63.788 Recordkeeping and reporting 

requirements. 

* * * * * 

(b) * * * 

(5) Each owner or operator that 

receives approval pursuant to 

§ 63.783(c) to use an add-on control 

system to control coating emissions 

shall maintain records of the occurrence 

and duration of each malfunction of 

operation (i.e., process equipment) or 

the required air pollution control and 

monitoring equipment. Each owner or 

operator shall maintain records of 

actions taken during periods of 

malfunction to minimize emissions in 

accordance with § 63.783(b)(1), 

including corrective actions to restore 

malfunctioning process and air 

pollution control and monitoring 

equipment to its normal or usual 

manner of operation. 

(c) Reporting requirements. Before the 

60th day following completion of each 

6 month period after the compliance 

date specified in § 63.784, each owner 

or operator of an affected source shall 

submit a report to the Administrator for 

each of the previous 6 months. The 

report shall include all of the 

information that must be retained 

pursuant to paragraphs (b)(2) through 

(3) of this section, except for that 

information specified in paragraphs 

(b)(2)(i) through (ii), (b)(2)(v), 

(b)(3)(i)(A), (b)(3)(ii)(A), and 

(b)(3)(iii)(A). If a violation at an affected 

source is detected, the owner or 

operator of the affected source shall also 

report the information specified in 

paragraph (b)(4) of this section for the 

reporting period during which the 

violation(s) occurred. To the extent 

possible, the report shall be organized 

according to the compliance 

procedure(s) followed each month by 

the affected source. If there was a 

malfunction during the reporting 

period, the report must also include the 

number, duration and a brief 

description of each 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 

§ 63.783(b)(1), including actions taken 

to correct a malfunction. 

■ 8. Table 1 to subpart II of part 63 is 

amended by: 

■ a. Removing entry 63.6(e)–(f); 

■ b. Adding entries 63.6(e)(1)(i), 

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

63.6(e)(3), 63.6(f)(1), and 63.6(f)(2)– 

(f)(3); 

■ c. Removing entry 63.7; 

■ d. Adding entries 63.7(a)–(d), 

63.7(e)(1), and 63.7(e)(2)–(e)(4); 

■ e. Revising entry 63.8; 

■ f. Removing entry 63.10(a)–(b); 

■ g. Adding entries 63.10(a), 63.10(b)(1), 

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

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

63.10(b)(2)(vi)–(b)(2)(xiv), and 

63.10(b)(3); 

■ h. Removing entry 63.10(c); 

■ i. Adding entries 63.10(c)(1)–(9), 

63.10(c)(10)–(11), 63.10(c)(12)–(14), and 

63.10(c)(15); 

■ j. Removing entry 63.10(d); and 

■ k. Adding entries 63.10(d)(1)–(4) and 

63.10(d)(5). 

The revisions read as follows: 

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

Reference Applies to subpart II Comment 

*******

63.6(e)(1)(i) ................................................................... No .............................................. See § 63.783(b)(1) 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)–(f)(3) ............................................................. No .............................................. If an alternative means of limiting emissions (e.g., an 

add-on control system) is used to comply with subpart II in accordance with § 63.783(c), then this section does apply. 

* * * * * * * 

63.7(a)–(d) .................................................................... No .............................................. If an alternative means of limiting emissions (e.g., an 

add-on control system) is used to comply with subpart II in accordance with § 63.783(c), then these 

sections do apply. 

63.7(e)(1) ...................................................................... No .............................................. If an alternative means of limiting emissions (e.g., an 

add-on control system) is used to comply with subpart II in accordance with § 63.783(c), then see 

§ 63.786(e). 

63.7(e)(2)–(e)(4) ........................................................... No .............................................. If an alternative means of limiting emissions (e.g., an 

add-on control system) is used to comply with subpart II in accordance with § 63.783(c), then these 

sections do apply. 

* * * * * * * 

63.8 ............................................................................... No .............................................. If an alternative means of limiting emissions (e.g., an 

add-on control system) is used to comply with subpart II in accordance with § 63.783(c), then this section does apply, with the exception of § 63.8(c)(1)(i), 

§ 63.8(c)(1)(iii), and the last sentence of 

§ 63.8(d)(3). 

*******

63.10(a) ........................................................................ Yes. 

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

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


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

Reference Applies to subpart II Comment 

63.10(b)(2)(ii) ................................................................ No .............................................. See § 63.788(b)(5) for recordkeeping of occurrence, 

duration, and actions taken during malfunctions. 

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

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

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

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

63.10(c)(1)–(9) .............................................................. No .............................................. If an alternative means of limiting emissions (e.g., an 

add-on control system) is used to comply with subpart II in accordance with § 63.783(c), then these 

sections do apply. 

63.10(c)(10)–(11) .......................................................... No .............................................. If an alternative means of limiting emissions (e.g., an 

add-on control system) is used to comply with subpart II in accordance with § 63.783(c), then see 

§ 63.788(b)(5) for records of malfunctions. 

63.10(c)(12)–(14) .......................................................... No .............................................. If an alternative means of limiting emissions (e.g., an 

add-on control system) is used to comply with subpart II in accordance with § 63.783(c), then these 

sections do apply. 

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

63.10(d)(1)–(4) ............................................................. Yes. 

63.10(d)(5) .................................................................... No .............................................. See § 63.788(c) for reporting malfunctions. 

* * * * * * * 

■ 9. Table 3 to subpart II of part 63 is 

amended by revising entry 

‘‘Determination of whether containers 

meet the standards described in 

§ 63.783(b)(2)’’ to read as follows: 

TABLE 3 TO SUBPART II OF PART 63—SUMMARY OF RECORDKEEPING AND REPORTING REQUIREMENTS abc

Requirement 

All Opts. Option 1 Option 2 Option 3 

Rec Rep Rec Rep Rec Rep Rec Rep 

*******

Determination of whether containers meet the standards described in § 63.783(b)(3) ... X X ........ ........ ........ ........ ........ ........

* * * * * * * 

aAffected sources that comply with the cold-weather limits must record and report additional information, as specified in § 63.788(b)(3)(ii)(C), 

(iii)(C), and (iv)(D). bAffected sources that detect a violation must record and report additional information, as specified in § 63.788(b)(4). 

cOPTION 4: The recordkeeping and reporting requirements of Option 4 are identical to those of Options 1, 2, or 3, depending on whether and 

how thinners are used. However, when using Option 4, the term volatile organic hazardous air pollutants ‘‘VOHAP’’ shall be used in lieu of the 

term Volatile Organic Compounds ‘‘VOC,’’ and the owner or operator shall record and report the Administrator-approved VOHAP test method or 

certification procedure. 

* * * * * 

Subpart JJ—[AMENDED] 

■ 10. Section 63.800 is amended by: 

■ a. Redesignating paragraphs (f) and (g) 

as paragraphs (h) and (i); 

■ b. Redesignating paragraphs (d) and 

(e) as paragraphs (e) and (f); 

■ c. Adding new paragraphs (d) and (g); 

and 

■ d. Adding paragraph (j) to read as 

follows: 

§ 63.800 Applicability. 

* * * * * 

(d) This subpart does not apply to any 

surface coating or coating operation that 

meets any of the criteria of paragraphs 

(d)(1) through (4) of this section. 

(1) Surface coating of metal parts and 

products other than metal components 

of wood furniture that meets the 

applicability criteria for miscellaneous 

metal parts and products surface coating 

(subpart MMMM of this part). 

(2) Surface coating of plastic parts and 

products other than plastic components 

of wood furniture that meets the 

applicability criteria for plastic parts 

and products surface coating (subpart 

PPPP of this part). 

(3) Surface coating of wood building 

products that meets the applicability 

criteria for wood building products 

surface coating (subpart QQQQ of this 

part). The surface coating of millwork 

and trim associated with cabinet 

manufacturing are subject to subpart JJ. 

(4) Surface coating of metal furniture 

that meets the applicability criteria for 

metal furniture surface coating (subpart 

RRRR of this part). Surface coating of 

metal components of wood furniture 

performed at a wood furniture or wood 

furniture component manufacturing 

facility are subject to subpart JJ. 

* * * * * 

(g) Existing affected sources shall be 

in compliance with § 63.802(a)(4) and 

§ 63.803(h) no later than November 21, 

2014. The owner or operator of an 

existing area source that increases its 

emissions of (or its potential to emit) 

hazardous air pollutants (HAP) such 

that the source becomes a major source 

that is subject to this subpart shall 


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comply with this subpart 1 year after 

becoming a major source. 

* * * * * 

(j) If the owner or operator, in 

accordance with 40 CFR 63.804, uses a 

control system as a means of limiting 

emissions, in response to an action to 

enforce the standards set forth in this 

subpart, you may assert an affirmative 

defense to a claim for civil penalties for 

exceedances of such standards that are 

caused by malfunction, as defined in 40 

CFR 63.2. Appropriate penalties may be 

assessed, however, if the respondent 

fails to meet its burden of proving all 

the requirements in the affirmative 

defense. The affirmative defense shall 

not be available for claims for injunctive 

relief. 

(1) To establish the affirmative 

defense in any action to enforce such a 

limit, the owner or operator must timely 

meet the notification requirements in 

paragraph (j)(2) of this section, and must 

prove by a preponderance of evidence 

that: 

(i) The excess emissions: 

(A) Were caused by a sudden, 

infrequent, and unavoidable failure of 

air pollution control and monitoring 

equipment, process equipment, or a 

process to operate in a normal or usual 

manner; and 

(B) Could not have been prevented 

through careful planning, proper design 

or better operation and maintenance 

practices; and 

(C) Did not stem from any activity or 

event that could have been foreseen and 

avoided, or planned for; and 

(D) Were not part of a recurring 

pattern indicative of inadequate design, 

operation, or maintenance; and 

(ii) Repairs were made as 

expeditiously as possible when the 

applicable emission limitations were 

being exceeded. Off-shift and overtime 

labor were used, to the extent 

practicable to make these repairs; and 

(iii) The frequency, amount and 

duration of the excess emissions 

(including any bypass) were minimized 

to the maximum extent practicable 

during periods of such emissions; and 

(iv) If the excess emissions resulted 

from a bypass of control equipment or 

a process, then the bypass was 

unavoidable to prevent loss of life, 

personal injury, or severe property 

damage; and 

(v) All possible steps were taken to 

minimize the impact of the excess 

emissions on ambient air quality, the 

environment, and human health; and 

(vi) All emissions monitoring and 

control systems were kept in operation 

if at all possible, consistent with safety 

and good air pollution control practices; 

and 

(vii) All of the actions in response to 

the excess emissions were documented 

by properly signed, contemporaneous 

operating logs; and 

(viii) At all times, the facility was 

operated in a manner consistent with 

good practices for minimizing 

emissions; and 

(ix) A written root cause analysis has 

been prepared, the purpose of which is 

to determine, correct and eliminate the 

primary causes of the malfunction and 

the excess emissions resulting from the 

malfunction event at issue. The analysis 

shall also specify, using best monitoring 

methods and engineering judgment, the 

amount of excess emissions that were 

the result of the malfunction. 

(2) Notification. The owner or 

operator of the facility experiencing an 

exceedance of its emission limit(s) 

during a malfunction shall notify the 

Administrator by telephone or facsimile 

(FAX) transmission as soon as possible, 

but no later than 2 business days after 

the initial occurrence of the 

malfunction, if it wishes to avail itself 

of an affirmative defense to civil 

penalties for that malfunction. The 

owner or operator seeking to assert an 

affirmative defense shall also submit a 

written report to the Administrator 

within 45 days of the initial occurrence 

of the exceedance of the standard in this 

subpart to demonstrate, with all 

necessary supporting documentation, 

that it has met the requirements set forth 

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

owner or operator may seek an 

extension of this deadline for up to 30 

additional days by submitting a written 

request to the Administrator before the 

expiration of the 45 day period. Until a 

request for an extension has been 

approved by the Administrator, the 

owner or operator is subject to the 

requirement to submit such report 

within 45 days of the initial occurrence 

of the exceedance. 

■ 11. Section 63.801 is amended by: 

■ a. Adding a definition for ‘‘affirmative 

defense’’ and ‘‘low-formaldehyde’’ and 

revising the definition for ‘‘wood 

furniture’’ in paragraph (a); and 

■ b. Adding paragraphs (b)(24) through 

(b)(28). 

The additions and revisions read as 

follows: 

§ 63.801 Definitions. 

(a) * * * 

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. 

* * * * * 

Low-formaldehyde means, in the 

context of a coating or contact adhesive, 

a product concentration of less than or 

equal to 1.0 percent formaldehyde by 

weight, as described in a certified 

product data sheet for the material. 

* * * * * 

Wood furniture means any product 

made of wood, a wood product such as 

rattan or wicker, or an engineered wood 

product such as particleboard that is 

manufactured at any facility that is 

engaged, either in part or in whole, in 

the manufacture of wood furniture or 

wood furniture components, including, 

but not limited to, facilities under any 

of the following standard industrial 

classification codes: 2434, 2511, 2512, 

2517, 2519, 2521, 2531, 2541, 2599, or 

5712. 

* * * * * 

(b) * * * 

(24) Cf = the formaldehyde content of 

a finishing material (c), in pounds of 

formaldehyde per gallon of coating (lb/ 

gal). 

(25) Ftotal = total formaldehyde 

emissions in each rolling 12 month 

period. 

(26) Gf = the formaldehyde content of 

a contact adhesive (g), in pounds of 

formaldehyde per gallon of contact 

adhesive (lb/gal). 

(27) Vc = the volume of formaldehydecontaining finishing material (c), in gal. 

(28) Vg = the volume of formaldehydecontaining contact adhesive (g), in gal. 

■ 12. Section 63.802 is amended by 

adding paragraphs (a)(4), (b)(4), and (c) 

to read as follows: 

§ 63.802 Emission limits. 

(a) * * * 

(4) Limit formaldehyde emissions by 

complying with the provisions specified 

in either paragraph (a)(4)(i) or (a)(4)(ii) 

of this section. 

(i) Limit total formaldehyde (Ftotal) use 

in coatings and contact adhesives to no 

more than 400 pounds per rolling 12 

month period. 

(ii) Use coatings and contact 

adhesives only if they are lowformaldehyde coatings and adhesives, 

in any wood furniture manufacturing 

operations. 

(b) * * * 

(4) Limit formaldehyde emissions by 

complying with the provisions specified 

in either paragraph (b)(4)(i) or (b)(4)(ii) 

of this section. 

(i) Limit total formaldehyde (Ftotal) use 

in coatings and contact adhesives to no 

more than 400 pounds per rolling 12 

month period. 


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(ii) Use coatings and contact 

adhesives only if they are lowformaldehyde coatings and adhesives, 

in any wood furniture manufacturing 

operations. 

(c) 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. 

■ 13. Section 63.803 is amended by 

revising paragraph (h) to read as 

follows: 

§ 63.803 Work practice standards. 

* * * * * 

(h) Application equipment 

requirements. Each owner or operator of 

an affected source shall not use 

conventional air spray guns except 

when all emissions from the finishing 

application station are routed to a 

functioning control device. 

* * * * * 

■ 14. Section 63.804 is amended by 

adding paragraphs (g)(9) and (h) to read 

as follows: 

§ 63.804 Compliance procedures and 

monitoring requirements. 

* * * * * 

(g) * * * 

(9) Continuous compliance 

requirements. You must demonstrate 

continuous compliance with the 

emissions standards and operating 

limits by using the performance test 

methods and procedures in § 63.805 for 

each affected source. 

(i) General requirements. (A) You 

must monitor and collect data, and 

provide a site specific monitoring plan 

as required by §§ 63.804, 63.806 and 

63.807. 

(B) Except for periods of monitoring 

system malfunctions, repairs associated 

with monitoring system malfunctions, 

and required monitoring system quality 

assurance or quality control activities 

(including, as applicable, calibration 

checks and required zero and span 

adjustments), you must operate the 

monitoring system and collect data at all 

required intervals at all times the 

affected source is operating and periods 

of malfunction. Any period for which 

data collection is required and the 

operation of the CEMS is not otherwise 

exempt and for which the monitoring 

system is out-of-control and data are not 

available for required calculations 

constitutes a deviation from the 

monitoring requirements. 

(C) You may not use data recorded 

during monitoring system malfunctions, 

repairs associated with monitoring 

system malfunctions, or required 

monitoring system quality assurance or 

control activities in calculations used to 

report emissions or operating levels. A 

monitoring system malfunction is any 

sudden, infrequent, not reasonably 

preventable failure of the monitoring 

system to provide valid data. 

Monitoring system failures that are 

caused in part by poor maintenance or 

careless operation are not malfunctions. 

The owner or operator must use all the 

data collected during all other periods 

in assessing the operation of the control 

device and associated control system. 

(ii) [Reserved] 

(h) The owner or operator of an 

existing or new affected source subject 

to § 63.802(a)(4) or (b)(4) shall comply 

with those provisions by using either of 

the methods presented in § 63.804(h)(1) 

and (2) if complying with 

§ 63.802(a)(4)(i) or (b)(4)(i) or by using 

the method presented in § 63.804(h)(3) 

if complying with § 63.802(a)(4)(ii) or 

(b)(4)(ii). 

(1) Calculate total formaldehyde 

emissions from all finishing materials 

and contact adhesives used at the 

facility using Equation 5 and maintain 

a value of Ftotal no more than 400 

pounds per rolling 12 month period. 

(2) Use a control system with an 

overall control efficiency (R) such that 

the calculated value of Ftotal in Equation 

6 is no more than 400 pounds per 

rolling 12 month period. 

(3) Demonstrate compliance by use of 

coatings and contact adhesives only if 

they are low-formaldehyde coatings and 

contact adhesives maintaining a 

certified product data sheet for each 

coating and contact adhesive used, as 

required by § 63.806(b)(1), and 

submitting a compliance certification 

with the semiannual report required by 

§ 63.807(c). 

(i) The compliance certification shall 

state that low-formaldehyde coatings 

and contact adhesives, as applicable, 

have been used each day in the 

semiannual reporting period or should 

otherwise identify the periods of 

noncompliance and the reasons for 

noncompliance. An affected source is in 

violation of the standard whenever a 

coating or contact adhesive that is not 

low-formaldehyde, as demonstrated by 

records or by a sample of the coating or 

contact adhesive, is used. Use of a 

noncompliant coating or contact 

adhesive is a separate violation for each 

day the noncompliant coating or contact 

adhesive is used. 

(ii) The compliance certification shall 

be signed by a responsible official of the 

company that owns or operates the 

affected source. 

■ 15. Section 63.805 is amended by 

redesignating paragraph (a) as paragraph 

(a)(1) and adding paragraph (a)(2) to 

read as follows: 


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72074 Federal Register / Vol. 76, No. 224 / Monday, November 21, 2011 / Rules and Regulations 

§ 63.805 Performance test methods. 

(a)(1) * * * 

(2) 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. 

* * * * * 

■ 16. Section 63.806 is amended by 

removing and reserving paragraph (e)(4) 

and adding paragraphs (b)(4) and (k) to 

read as follows: 

§ 63.806 Recordkeeping requirements. 

* * * * * 

(b) * * * 

(4) The formaldehyde content, in lb/ 

gal, as applied, of each finishing 

material and contact adhesive subject to 

the emission limits in § 63.802(a)(4) or 

(b)(4) and chooses to comply with the 

400 lb/yr limits on formaldehyde in 

§ 63.802(a)(4) (i) or (b)(4)(i). 

* * * * * 

(k) The owner or operator of an 

affected source subject to this subpart 

shall maintain records of the occurrence 

and duration of each malfunction of 

operation (i.e., process equipment) or 

the air pollution control equipment and 

monitoring equipment. The owner or 

operator shall maintain records of 

actions taken during periods of 

malfunction to minimize emissions in 

accordance with § 63.802(c), including 

corrective actions to restore 

malfunctioning process and air 

pollution control and monitoring 

equipment to its normal or usual 

manner of operation. 

■ 17. Section 63.807 is amended by 

revising paragraphs (c) introductory text 

and (c)(3) and the first sentence in 

paragraph (d) to read as follows: 

§ 63.807 Reporting requirements. 

* * * * * 

(c) The owner or operator of an 

affected source demonstrating 

compliance in accordance with 

§ 63.804(g)(1), (2), (3), (5), (7), (8), (h)(1), 

and (h)(3) shall submit a report covering 

the previous 6 months of wood furniture 

manufacturing operations. 

* * * * * 

(3) The semiannual reports shall 

include the information required by 

§ 63.804(g) (1), (2), (3), (5), (7), (8), (h)(1), 

and (h)(3), a statement of whether the 

affected source was in compliance or 

noncompliance, and, if the affected 

source was in noncompliance, the 

measures taken to bring the affected 

source into compliance. If there was a 

malfunction during the reporting 

period, the report shall also 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 § 63.802(c), including 

actions taken to correct a malfunction. 

* * * * * 

(d) The owner or operator of an 

affected source demonstrating 

compliance in accordance with 

§ 63.804(g)(4), (6), and (h)(2) of this 

subpart shall submit the excess 

emissions and continuous monitoring 

system performance report and 

summary report required by § 63.10(e) 

of subpart A. * * * 

* * * * * 

■ 18. Table 1 to Subpart JJ of part 63 is 

amended by: 

■ a. Removing entry 63.6(e)(1); 

■ b. Adding entries 63.6(e)(1)(i), 

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

■ c. Revising entries 63.6(e)(2) and 

(e)(3); 

■ d. Removing entries 63.7 and 63.8; 

■ e. Adding entries 63.7(a)–(d), 

63.7(e)(1), 63.7(e)(2)–(e)(4), 63.8(a)–(b), 

63.8(c)(1)(i), 63.8(c)(1)(ii), 63.8(c)(1)(iii), 

63.8(c)(2)–(d)(2), 63.8(d)(3), and 63.8(e)– 

(g); 

■ f. Removing entry 63.10(b)(2); 

■ g. Adding entries 63.10(b)(2)(i), 

63.10(b)(2)(ii), 63.10(b)(2)(iii), 

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

(b)(2)(xiv); 

■ h. Removing entry 63.10(c); 

■ i. Adding entries 63.10(c)(1)–(9), 

63.10(c)(10)–(11), 63.10(c)(12)–(c)(14), 

and 63.10(c)(15); and 

■ j. Revising entry 63.10(d)(5) to read as 

follows: 

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

Reference Applies to subpart JJ Comment 

*******

63.6(e)(1)(i) ................................................................... No .............................................. See § 63.802(c) 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. 

63.7(a)–(d) .................................................................... Yes ............................................. Applies only to affected sources using a control device to comply with the rule. 

63.7(e)(1) ...................................................................... No .............................................. See § 63.805(a)(1). 

63.7(e)(2)–(e)(4) ........................................................... Yes ............................................. Applies only to affected sources using a control device to comply with the rule. 

63.8(a)–(b) .................................................................... Yes ............................................. Applies only to affected sources using a control device to comply with the rule. 

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

63.8(c)(1)(ii) .................................................................. Yes ............................................. Applies only to affected sources using a control device to comply with the rule. 

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

63.8(c)(2)–(d)(2) ........................................................... Yes ............................................. Applies only to affected sources using a control device to comply with the rule. 

63.8(d)(3) ...................................................................... Yes, except for last sentence .... Applies only to affected sources using a control device to comply with the rule. 

63.8(e)–(g) .................................................................... Yes ............................................. Applies only to affected sources using a control device to comply with the rule. 


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

Reference Applies to subpart JJ Comment 

*******

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

63.10(b)(2)(ii) ................................................................ No .............................................. See § 63.806(k) for recordkeeping of occurrence and 

duration of malfunctions and recordkeeping of actions taken during malfunctions. 

63.10(b)(2)(iii) ............................................................... Yes ............................................. Applies only to affected sources using a control device to comply with the rule. 

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

63.10(b)(2)(vi)–(b)(2)(xiv) ............................................. Yes ............................................. Applies only to affected sources using a control device to comply with the rule. 

* * * * * * * 

63.10(c)(1)–(9) .............................................................. Yes. 

63.10(c)(10)–(11) .......................................................... No .............................................. See § 63.806(k) for recordkeeping of malfunctions. 

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

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

* * * * * * * 

63.10(d)(5) .................................................................... No .............................................. See § 63.807(c)(3) for reporting of malfunctions. 

* * * * * * * 

■ 19. Table 3 to Subpart JJ of part 63 is 

amended by adding an entry for ‘‘All 

Finishing Operations and Contact 

Adhesives’’ following the entry for 

‘‘Contact Adhesives’’ to read as follows: 

TABLE 3 TO SUBPART JJ OF PART 63—SUMMARY OF EMISSION LIMITS

Emission point Existing source New source 

*******

All Finishing Operations and Contact Adhesives: 

(a) Achieve total free formaldehyde emissions across all finishing operations and contact adhesives, 

lb per rolling 12 month period, as applied ............................................................................................ 400 400 

(b) Use coatings and contact adhesives only if they are low-formaldehyde coatings and contact adhesives ...................................................................................................................................................... f 1.0 f 1.0 

* * * * * * * 

* * * * * * * 

fThe limits refer to the formaldehyde content by weight of the coating or contact adhesive, as specified on certified product data sheets. 

[FR Doc. 2011–29457 Filed 11–18–11; 8:45 am] 

BILLING CODE 6560–50–P 


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