Vol. 77 Friday, 

No. 246 December 21, 2012 

Part III 

Environmental Protection Agency 

40 CFR Part 63 

National Emission Standards for Hazardous Air Pollutants for Chemical 

Manufacturing Area Sources; Final Rule 

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75740 Federal Register / Vol. 77, No. 246 / Friday, December 21, 2012 / Rules and Regulations 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 63 

[EPA–HQ–OAR–2008–0334; FRL–9725–9] 

RIN 2060–AQ89 

National Emission Standards for 

Hazardous Air Pollutants for Chemical 

Manufacturing Area Sources 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule; lift stay of final rule. 

SUMMARY: On January 30, 2012, the EPA 

proposed revisions to several provisions 

of the final National Emission Standards 

for Hazardous Air Pollutants for 

Chemical Manufacturing Area Sources. 

The proposed revisions were made, in 

part, in response to a petition for 

reconsideration received by the 

Administrator following the 

promulgation of the October 29, 2009, 

final rule (‘‘2009 final rule’’). In this 

action, the EPA is finalizing those 

amendments, lifting the stay of the title 

V permit requirement issued on March 

14, 2011, and lifting the stay of the final 

rule issued on October 25, 2012. In 

addition, this final action includes 

revisions to the EPA’s approach for 

addressing malfunctions and standards 

applicable during startup and shutdown 

periods. This final action also includes 

amendments and technical corrections 

to the final rule to clarify applicability 

and compliance issues raised by 

stakeholders subject to the 2009 final 

rule. The revisions to the final rule do 

not reduce the level of environmental 

protection or emissions control on 

sources regulated by this rule but 

provide flexibility and clarity to 

improve implementation. This action 

also extends the compliance date for 

existing sources and the EPA’s final 

response to all issues raised in the 

petition for reconsideration. 

DATES: The stay of subpart VVVVVV 

and the stay of paragraph (e) of 40 CFR 

63.11494 are lifted as of December 21, 

2012. This final rule is effective on 

December 21, 2012. 

ADDRESSES: The EPA has established a 

docket for this action under Docket ID 

No. EPA–HQ–OAR–2008–0334. All 

documents in the docket are listed in 

the www.regulations.gov index. 

Although listed in the index, some 

information is not publicly available, 

e.g., confidential business information 

or other information whose disclosure is 

restricted by statute. Certain other 

material, such as copyrighted material, 

will be publicly available only in hard 

copy. Publicly available docket 

materials are available either 

electronically in www.regulations.gov 

or in hard copy at the EPA Docket 

Center, EPA West Building, Room 3334, 

1301 Constitution Ave. NW., 

Washington, DC. The Public Reading 

Room is open from 8:30 a.m. to 4:30 

p.m., Monday through Friday, excluding 

legal holidays. The telephone number 

for the Public Reading Room is (202) 

566–1744, and the telephone number for 

the Docket Center is (202) 566–1742. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Nick Parsons, Sector Policies and 

Programs Division (E143–01), Office of 

Air Quality Planning and Standards, 

U.S. Environmental Protection Agency, 

Research Triangle Park, North Carolina 

27711; telephone number: (919) 541– 

5372; fax number: (919) 541–0246; 

email address: parsons.nick@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Acronyms and Abbreviations. Several 

acronyms and terms used to describe 

industrial processes are included in this 

final action. While this may not be an 

exhaustive list, to ease the reading of 

this preamble and for reference 

purposes, the following terms and 

acronyms are defined here: 

CAA Clean Air Act 

CEMS Continuous Emission Monitoring 

System 

CFR Code of Federal Regulations 

CMAS Chemical Manufacturing Area 

Source 

CMPU Chemical Manufacturing Process 

Unit 

COMS Continuous Opacity Monitoring 

System 

CPMS Continuous Parameter Monitoring 

System 

EPA Environmental Protection Agency 

FESOP Federally Enforceable State 

Operating Permit 

GACT Generally Available Control 

Technology 

HAP Hazardous Air Pollutants 

HON National Emission Standards for 

Organic Hazardous Air Pollutants From the 

Synthetic Organic Chemical Manufacturing 

Industry 

ICR Information Collection Request 

lb/yr Pounds Per Year 

MACT Maximum Achievable Control 

Technology 

MON National Emission Standards for 

Hazardous Air Pollutants: Miscellaneous 

Organic Chemical Manufacturing 

MSDS Material Safety Data Sheet 

NESHAP National Emissions Standards for 

Hazardous Air Pollutants 

NOCS Notice of Compliance Status 

NTTAA National Technology Transfer and 

Advancement Act 

OECA Office of Enforcement and 

Compliance Assurance 

OMB Office of Management and Budget 

ppmv Parts Per Million by Volume 

RCRA Resource Conservation and Recovery 

Act 

SARU Sulfuric Acid Regeneration Unit 

SSM Startup, Shutdown and Malfunction 

tpy Tons Per Year 

TTN Technology Transfer Network 

UMRA Unfunded Mandates Reform Act 

VCS Voluntary Consensus Standards 

VOC Volatile Organic Compound 

WWW World Wide Web 

Organization of This Document. The 

following outline is provided to aid in 

locating information in this preamble. 

I. General Information 

A. Executive Summary 

B. Does this action apply to me? 

C. How do I obtain a copy of this document 

and other related information? 

D. Judicial Review 

II. Background Information 

III. Summary of Final Rule Revisions 

A. Applicability of the Family of Materials 

Concept 

B. Title V Permitting Requirements 

C. Requirements When Other Rules 

Overlap With the Final Rule 

D. Requirement To Conduct Direct and 

Proximal Leak Inspections 

E. Requirement for Covers or Lids on 

Process Vessels 

F. Requirement To Conduct Leak 

Inspections When Equipment Is in HAP 

Service 

G. Requirements During Periods of Startup, 

Shutdown and Malfunction 

H. Requirements for Metal HAP Process 

Vents 

I. Extension of the Compliance Date 

J. Technical Corrections 

IV. Summary of Major Changes Since 

Proposal 

A. Title V Permitting Requirements 

B. Requirement for Covers or Lids on 

Process Vessels 

C. Requirement To Conduct Leak 

Inspections When Equipment Is in HAP 

Service 

D. Requirements for Metal HAP Process 

Vents 

E. Extension of the Compliance Date 

F. Technical Corrections 

V. Summary of Comments and Responses 

A. Title V Permitting Requirements 

B. Requirements When Other Rules 

Overlap With the Final Rule 

C. Requirement To Conduct Direct and 

Proximal Leak Inspections 

D. Requirement for Covers or Lids on 

Process Vessels 

E. Requirement To Conduct Leak 

Inspections When Equipment Is in HAP 

Service 

F. Applicability of the Family of Materials 

Concept 

G. Requirements for Metal HAP Process 

Vents 

H. Compliance Date 

I. Technical Corrections 

VI. What other actions are we taking? 

A. De Minimis Exemption 

B. Research and Development 

Interpretation 

C. Pollution Prevention Alternative 

VII. Statutory and Executive Order Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 

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B. Paperwork Reduction Act 

C. Regulatory Flexibility Act 

D. Unfunded Mandates Reform Act 

E. Executive Order 13132: Federalism 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

Risks and Safety Risks 

H. Executive Order 13211: Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

I. National Technology Transfer and 

Advancement Act 

J. Executive Order 12898: Federal Actions 

To Address Environmental Justice in 

Minority Populations and Low-Income 

Populations 

K. Congressional Review Act 

A red-line version of the regulatory language 

that incorporates the changes in this action 

is available in the docket. 

I. General Information 

A. Executive Summary 

1. Purpose of the Regulatory Action 

The EPA issued the NESHAP for the 

nine chemical manufacturing area 

source categories (40 CFR part 63, 

subpart VVVVVV) on October 29, 2009 

(74 FR 56008). Pursuant to CAA section 

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

for reconsideration on February 12, 

2010. The petitioners requested that the 

EPA reconsider six provisions in the 

final rule. In response to this petition, 

the EPA proposed revisions to several 

provisions of the final rule on January 

30, 2012 (77 FR 4522). 

This final action addresses the public 

comments on the proposal and finalizes 

amendments to subpart VVVVVV. The 

amendments relate to issues raised in 

the petition for reconsideration and also 

include technical corrections that clarify 

applicability and compliance issues of 

the final rule. This action also lifts the 

stay of the title V permit requirement 

that was issued on March 14, 2011 (76 

FR 13514) and the stay of the final rule 

that was issued on October 25, 2012 (77 

FR 65135). This action also provides an 

extension of the compliance date for 

existing sources. 

2. Summary of Major Provisions 

The revised final rule lifts the stay on 

the title V permitting requirement and 

requires that certain chemical 

manufacturing synthetic area sources 

that installed controls obtain a title V 

permit. The EPA continues to believe 

that the additional protections provided 

by a title V permit are warranted for the 

sources subject to title V pursuant to 

this rule for the reasons stated in the 

rulemaking record. See 74 FR 56013– 

56014, 56034–56039 (October 29, 2009); 

77 FR 4525–4527 (January 30, 2012). 

The EPA is also finalizing several 

revisions to the final rule to improve 

clarity and provide facilities with 

greater flexibility. The leak inspection 

requirements are revised such that 

facilities conduct quarterly sensory 

inspections instead of ‘‘direct and 

proximal (thorough)’’ inspections, and 

that leak inspections may be conducted 

while equipment is in VOC service 

instead of in organic HAP service. The 

final rule also allows facilities to remove 

the required cover or lid on a process 

vessel when access is required during 

manual operations. Several definitions, 

including ‘‘in organic HAP service,’’ ‘‘in 

metal HAP service,’’ ‘‘metal HAP 

process vent’’ and ‘‘family of materials’’ 

are clarified and/or revised in the final 

rule. The EPA is also finalizing several 

technical corrections. Finally, the EPA 

is extending the compliance date for 

existing sources until March 21, 2013. 

3. Costs and Emissions Reductions 

The costs and emissions reductions 

associated with this rule have not 

changed from the October 29, 2009, 

final rule. Table 1 below summarizes 

the costs and emissions reductions of 40 

CFR part 63, subpart VVVVVV. See 

section VI of the preamble to the 

October 29, 2009 final rule (74 FR 

56039–56040) for further discussion of 

the costs and impacts. 

TABLE 1—SUMMARY OF THE COSTS AND EMISSIONS REDUCTIONS OF 40 CFR PART 63, SUBPART VVVVVV 

Requirement Capital costs 

($) 

Annualized 

costs 

($/yr) 

Emissions 

reductions 

(tpy) 

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

Continuous process vents ........................................................................................................... 170,000 85,000 <29 

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

Storage tanks ............................................................................................................................... 85,000 15,000 5 

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

Transfer operations ...................................................................................................................... 75,000 10,000 1 

Wastewater systems .................................................................................................................... 210,000 79,000 51 

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

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

B. Does this action apply to me? 

The regulated categories and entities 

potentially affected by this action 

include: 

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1The 15 urban HAP for which the chemical 

manufacturing area source categories were listed 

under CAA section 112(c) are identified in table 1 

of the final rule. 

Industry category NAICS code 1 Examples of regulated entities 

Chemical Manufacturing .................................... 325 Chemical manufacturing area sources that use as feedstock, generate as byproduct or produce as product, any of the hazardous air pollutants (HAP) 

subject to this subpart except for: (1) Processes classified in NAICS Code 

325222, 325314 or 325413; (2) processes subject to standards for other 

listed area source categories 2 in NAICS Code 325; (3) certain fabricating 

operations; (4) manufacture of photographic film, paper and plate where 

material is coated or contains chemicals (but the manufacture of the photographic chemicals is regulated); and (5) manufacture of radioactive elements or isotopes, radium chloride, radium luminous compounds, strontium 

and uranium. 

1 North American Industry Classification System. 

2The source categories in NAICS Code 325 for which other area source standards apply are: Acrylic Fibers/Modacrylic Fibers Production, 

Chemical Preparation, Carbon Black, Chemical Manufacturing: Chromium Compounds, Lead Oxide Production, Polyvinyl Chloride and Copolymers Production, Paint and Allied Coatings and Mercury Cell Chlor-Alkali Manufacturing. 

This table is not intended to be 

exhaustive, but rather provides a guide 

for readers regarding entities likely to be 

regulated by this reconsideration action. 

To determine whether your facility may 

be affected by this final rule, you should 

examine the applicability criteria in 40 

CFR 63.11494 of subpart VVVVVV 

(National Emission Standards for 

Hazardous Air Pollutants for Chemical 

Manufacturing Area Sources). If you 

have any questions regarding the 

applicability of the final rule to a 

particular entity, consult either the air 

permit authority for the entity or your 

EPA regional representative, as listed in 

40 CFR 63.13. 

C. How do I obtain a copy of this 

document and other related 

information? 

Docket. The docket number for this 

action and the final rule (40 CFR part 

63, subpart VVVVVV) is Docket ID No. 

EPA–HQ–OAR–2008–0334. 

World Wide Web (WWW). In addition 

to being available in the docket, an 

electronic copy of this action is 

available on the WWW through the 

Technology Transfer Network (TTN) 

Web site. Following signature, a copy of 

this notice will be posted on the TTN’s 

policy and guidance page for newly 

proposed or promulgated rules at 

http://www.epa.gov/ttn/oarpg. The TTN 

provides information and technology 

exchange in various areas of air 

pollution control. 

D. Judicial Review 

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

Air Act (CAA), judicial review of this 

final rule is available only by filing a 

petition for review in the United States 

Court of Appeals for the District of 

Columbia Circuit by February 19, 2013. 

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

requirements established by this final 

rule may not be challenged separately in 

any civil or criminal proceedings 

brought by the EPA to enforce these 

requirements. Section 307(d)(7)(B) of 

the CAA further provides that ‘‘[o]nly an 

objection to a rule or procedure which 

was raised with reasonable specificity 

during the period for public comment 

(including any public hearing) may be 

raised during judicial review.’’ This 

section also provides a mechanism for 

the EPA to convene a proceeding for 

reconsideration, ‘‘[i]f the person raising 

an objection can demonstrate to EPA 

that it was impracticable to raise such 

objection within [the period for public 

comment] or if the grounds for such 

objection arose after the period for 

public comment (but within the time 

specified for judicial review) and if such 

objection is of central relevance to the 

outcome of this rule.’’ Any person 

seeking to make such a demonstration to 

us should submit a Petition for 

Reconsideration to the Office of the 

Administrator, U.S. EPA, Room 3000, 

Ariel Rios Building, 1200 Pennsylvania 

Ave. NW., Washington, DC 20460, with 

a copy to both the person listed in the 

preceding FOR FURTHER INFORMATION

CONTACT section, and the Associate 

General Counsel for the Air and 

Radiation Law Office, Office of General 

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

1200 Pennsylvania Ave. NW., 

Washington, DC 20460. 

II. Background Information 

Section 112(d) of the CAA requires 

the EPA to establish national emission 

standards for hazardous air pollutants 

(NESHAP) for both major and area 

sources of HAP that are listed for 

regulation under CAA section 112(c). A 

major source is any stationary source 

that emits or has the potential to emit 

10 tons per year (tpy) or more of any 

single HAP or 25 tpy or more of any 

combination of HAP. An area source is 

a stationary source that is not a major 

source. 

On October 29, 2009 (74 FR 56008), 

the EPA issued the NESHAP for the 

nine chemical manufacturing area 

source (CMAS) categories that were 

listed pursuant to CAA sections 

112(c)(3) and 112(k)(3)(B). The nine area 

source categories are Agricultural 

Chemicals and Pesticides 

Manufacturing, Cyclic Crude and 

Intermediate Production, Industrial 

Inorganic Chemical Manufacturing, 

Industrial Organic Chemical 

Manufacturing, Inorganic Pigments 

Manufacturing, Miscellaneous Organic 

Chemical Manufacturing, Plastic 

Materials and Resins Manufacturing, 

Pharmaceutical Production and 

Synthetic Rubber Manufacturing. 

Section 112(k)(3)(B) of the CAA 

directs the EPA to identify at least 30 

HAP that, as a result of emissions from 

area sources, pose the greatest threat to 

public health in the largest number of 

urban areas. The EPA implemented this 

provision in 1999 in the Integrated 

Urban Air Toxics Strategy (64 FR 38715, 

July 19, 1999) (Strategy). Specifically, in 

the Strategy, the EPA identified 30 HAP 

that pose the greatest potential health 

threat in urban areas and these HAP are 

referred to as the ‘‘30 urban HAP.’’ 

Section 112(c)(3) of the CAA requires 

the EPA to list sufficient categories or 

subcategories of area sources to ensure 

that area sources representing 90 

percent of the area source emissions of 

the 30 urban HAP are subject to 

regulation. The EPA completed this 

requirement in 2011 (76 FR 15308, 

March 21, 2011). The nine CMAS 

categories were listed to satisfy this 

requirement for 15 of the 30 urban 

HAP.1 Pursuant to CAA section 

112(d)(5), the NESHAP reflect generally 

available control technologies or 

management practices (GACT). The 

NESHAP apply to each chemical 

manufacturing process unit (CMPU) that 

uses, generates or produces any of the 

15 urban HAP for which the area source 

categories were listed (collectively 

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2The petition also requested that the EPA take 

comment on three additional issues: (1) A de 

minimis exemption for all sources; (2) a revision of 

the definition of laboratory analysis unit to include 

commercial development activities; and (3) a 

pollution prevention alternative. The EPA did not 

seek comment on these issues in reconsideration as 

explained below in section VI of this preamble. 

‘‘chemical manufacturing urban HAP’’ 

or ‘‘Table 1 HAP’’). 

On February 12, 2010, following 

promulgation of the 2009 final rule, the 

EPA received a petition for 

reconsideration from the American 

Chemistry Council and the Society of 

Chemical Manufacturers & Affiliates 

(‘‘Petitioners’’). A copy of this petition 

is provided in the docket (see Docket 

Item No. EPA–HQ–OAR–2008–0334– 

0098). Petitioners, pursuant to CAA 

section 307(d)(7)(B), requested that the 

EPA reconsider six provisions in the 

rules: (1) The requirement that major 

sources that installed air pollution 

controls after 1990, and, as a result, 

became area sources, obtain a title V 

permit; (2) the requirement that sources 

subject to the final rule and any 

overlapping provision in another rule 

comply with each provision 

independently, or with the most 

stringent requirements of each rule; (3) 

the requirement that leak inspections 

include direct and proximal (thorough) 

inspection of all areas of potential leak 

within the CMPU; (4) the requirement 

that process vessels in HAP service be 

equipped with a cover or lid that must 

be in place at all times when the vessel 

contains HAP, except for material 

addition and sampling; (5) the 

requirement to conduct leak inspections 

while the equipment is in HAP service; 

and (6) the requirement that a CMPU 

include all equipment and processes 

used to produce a ‘‘family of 

materials.’’ 2 The arguments in support 

of these requests are provided in the 

petition and in the preamble to the 

reconsideration proposed rule revisions 

(77 FR 4525–4530, January 30, 2012). 

Petitioners also requested that the EPA 

stay the effectiveness of these provisions 

of the rule to save many facilities from 

needlessly having to file the initial 

notifications required by the final rule. 

On June 15, 2010, the EPA sent a 

letter to the Petitioners informing them 

that the EPA was granting the request 

for reconsideration on at least one of the 

issues raised in the petition, and that 

the agency would identify the specific 

issue or issues for which it was granting 

reconsideration in the reconsideration 

notice that would be published in the 

Federal Register. The letter also 

indicated that the EPA considered the 

request for a stay to be moot because the 

due date for initial notifications had 

already passed. 

On January 30, 2012, the EPA 

published proposed rule revisions that 

included six provisions for which 

reconsideration was requested. 

Specifically, the EPA: (1) Proposed to 

narrow the requirement for sources to 

obtain a title V permit to only those 

synthetic area sources that installed a 

federally-enforceable control device on 

an affected CMPU; (2) sought comment 

on the overlapping provisions 

requirement; (3) proposed to remove the 

requirement to conduct direct and 

proximal (thorough) leak inspections; 

(4) proposed to allow sources to remove 

the cover or lid on a process vessel 

when manual access is necessary; (5) 

sought comment on allowing leak 

inspections to be conducted when 

equipment is in volatile organic 

compound (VOC) service; and (6) 

proposed to clarify the family of 

materials concept. In addition, the EPA 

also proposed clarifying revisions to the 

requirements for metal HAP process 

vents, the addition of the affirmative 

defense provisions and numerous 

technical corrections. 

On October 25, 2012, the EPA 

published a 60-day stay of the final 

CMAS rule (77 FR 65135). The 

compliance date for the final CMAS rule 

was October 29, 2012, and it was the 

EPA’s expectation that the 

reconsideration would be finalized in 

advance of that date. However, the EPA 

was still in the process of finalizing the 

reconsideration action. For that reason, 

a short stay of the final rule was 

appropriate to allow the EPA the time 

necessary to complete the 

reconsideration action. 

III. Summary of Final Rule Revisions 

A. Applicability of the Family of 

Materials Concept 

The final rule revises the definition of 

‘‘family of materials’’ in 40 CFR 

63.11502(a) by removing the definition 

that was incorporated by reference to 

the Miscellaneous Organic Chemical 

Manufacturing NESHAP (MON) and 

replacing it with a definition in 40 CFR 

63.11502(b) specific to the CMAS rule. 

The definition clarifies that the family 

of materials concept applies only to 

those products whose production 

involves emission of the same Table 1 

HAP. 

B. Title V Permitting Requirements 

The revised final rule requires 

synthetic area sources that installed a 

federally-enforceable control device on 

at least one affected CMPU to obtain a 

title V permit. The final rule lifts the 

stay on the title V permitting 

requirement (76 FR 13514, March 14, 

2011) and requires such sources to 

submit their title V permit application 

by December 21, 2013 or on such earlier 

date as the title V permitting authority 

requires. 

C. Requirements When Other Rules 

Overlap With the Final Rule 

The revised final rule requires that 

facilities comply with the most stringent 

requirements when there are 

overlapping provisions in the CMAS 

rule and other NESHAP. Sources are 

required to determine which of the 

overlapping requirements applicable to 

the source are more stringent. 

D. Requirement To Conduct Direct and 

Proximal Leak Inspections 

The revised final rule removes the 

requirement in 40 CFR 63.11495(a)(3) 

that facilities conduct a ‘‘direct and 

proximal (thorough)’’ leak inspection, 

and instead requires that facilities 

conduct quarterly sensory inspections of 

all equipment and process vessels, 

provided that these methods are capable 

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

the inspector is within sufficient 

proximity to the equipment that leaky 

equipment can be detected by sight, 

sound or smell). The revised final rule 

also allows affected facilities to conduct 

leak inspections of equipment in VOC 

service instead of in organic HAP 

service, provided that leaks can be 

detected while in VOC service. A CMPU 

that contains metal HAP as particulate 

must conduct leak inspections while the 

equipment is in metal HAP service. 

E. Requirement for Covers or Lids on 

Process Vessels 

The final rule requires in 40 CFR 

63.11495(a)(1) that a cover or lid must 

be in place and closed at all times when 

a process vessel is in organic HAP 

service or in metal HAP service, except 

when access is required during manual 

operations such as material addition, 

removal, inspection, sampling and 

cleaning. Process vessels containing 

metal HAP that are in a liquid solution 

or other form that will not result in 

particulate emissions of metal HAP (e.g., 

metal HAP that is in ingot, paste, slurry 

or moist pellet form or other form) are 

not subject to this requirement. 

The definitions of ‘‘in organic HAP 

service’’ and ‘‘in metal HAP service’’ in 

40 CFR 63.11502(b) have been revised to 

state that a process vessel is no longer 

considered to be in organic HAP service 

or in metal HAP service once it has been 

emptied to the extent practicable and 

any cleaning has been completed. 

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F. Requirement To Conduct Leak 

Inspections When Equipment Is in HAP 

Service 

The final rule requires in 40 CFR 

63.11495(a)(3) that leak inspections be 

conducted while the subject CMPU is 

operating in organic HAP service or in 

metal HAP service. This provision also 

allows CMPU that do not contain metal 

HAP as particulate to conduct leak 

inspections when the subject CMPU is 

in VOC service, provided that leaks can 

be detected while in VOC service. A 

CMPU that contains metal HAP as 

particulate must conduct leak 

inspections while the equipment is in 

metal HAP service. 

G. Requirements During Periods of 

Startup, Shutdown and Malfunction 

The EPA is adding to the final rule an 

affirmative defense to civil penalties for 

violations of emission standards that are 

caused by malfunctions. During the 

comment period of the October 6, 2008, 

proposed rule (‘‘2008 proposal’’), the 

United States Court of Appeals for the 

District of Columbia Circuit vacated two 

provisions in the EPA’s CAA section 

112 regulations governing the emissions 

of HAP during periods of startup, 

shutdown and malfunction (SSM). 

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

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

(U.S. 2010). Specifically, the Court 

vacated the SSM exemption contained 

in 40 CFR 63.6(f)(1) and 40 CFR 

63.6(h)(1), that are part of a regulation, 

commonly referred to as the ‘‘General 

Provisions Rule,’’ that the EPA 

promulgated under section 112 of the 

CAA. When incorporated into CAA 

section 112(d) regulations for specific 

source categories, the exemption in 

these two provisions exempts sources 

from the requirement to comply with 

otherwise applicable CAA section 

112(d) emission standards during 

periods of SSM. 

The 2008 proposal contained 

references to the vacated provisions. 

Because the provisions were vacated, 

we removed the references in the 2009 

final rule, and, consistent with Sierra 

Club v. EPA, established standards that 

applied at all times. In the vacated 

provisions’ place, we included 

alternative standards for startup and 

shutdown periods for continuous 

process vents. Table 3 to 40 CFR part 63, 

subpart VVVVVV. For batch process 

vents, we determined that startup and 

shutdown periods were already 

accounted for in the existing standard 

and we determined that the remaining 

equipment did not have periods of 

startup and shutdown. See 74 FR 56013, 

October 29, 2009. We declined to 

establish a different standard for 

malfunctions, as suggested by 

commenters. See 74 FR 56033, October 

29, 2009. 

Further, as explained in the preamble 

to the 2009 final rule (74 FR 56033, 

October 29, 2009), periods of startup, 

normal operations and shutdown are all 

predictable and routine aspects of a 

source’s operations. However, by 

contrast, malfunction is defined as a 

‘‘sudden, infrequent, and not reasonably 

preventable failure of air pollution 

control and monitoring equipment, 

process equipment or a process to 

operate in a normal or usual manner 

* * *’’ (40 CFR 63.2). The EPA has 

determined that CAA section 112 does 

not require that emissions that occur 

during periods of malfunction be 

factored into development of CAA 

section 112 standards. There is nothing 

in section 112 that directs the agency to 

consider malfunctions in determining 

the level ‘‘achieved’’ by the best 

performing or best controlled sources 

when setting emission standards. 

Moreover, while the EPA accounts for 

variability in setting emissions 

standards consistent with the section 

112 case law, nothing in that case law 

requires the agency to consider 

malfunctions as part of that analysis. 

Section 112 uses the concept of ‘‘best 

controlled’’ and ‘‘best performing’’ unit 

in defining the level of stringency that 

section 112 performance standards must 

meet. Applying the concept of ‘‘best 

controlled’’ or ‘‘best performing’’ to a 

unit that is malfunctioning presents 

significant difficulties, as malfunctions 

are sudden and unexpected events. 

Similarly, although standards for area 

sources are not required to be set based 

on ‘‘best performers,’’ we believe that 

what is ‘‘generally available’’ should not 

be based on periods in which there is a 

‘‘failure to operate.’’ 

Further, accounting for malfunctions 

would be difficult, if not impossible, 

given the myriad different types of 

malfunctions that can occur across all 

sources in the categories and given the 

difficulties associated with predicting or 

accounting for the frequency, degree 

and duration of various malfunctions 

that might occur. As such, the 

performance of units that are 

malfunctioning is not ‘‘reasonably’’ 

foreseeable. See, e.g., Sierra Club v. 

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

(the EPA typically has wide latitude in 

determining the extent of 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(d) standards as a result of a 

malfunction event, the EPA would 

determine an appropriate response 

based on, among other things, the good 

faith efforts of the source to minimize 

emissions during malfunction periods, 

including preventative and corrective 

actions, as well as root cause analyses 

to ascertain and rectify excess 

emissions. The EPA would also 

consider whether the source’s failure to 

comply with the CAA section 112(d) 

standard was, in fact, ‘‘sudden, 

infrequent, not reasonably preventable’’ 

and was not instead ‘‘caused in part by 

poor maintenance or careless 

operation.’’ 40 CFR 63.2 (definition of 

malfunction). 

Finally, the EPA recognizes that even 

equipment that is properly designed and 

maintained can sometimes fail, and that 

such failure can sometimes cause a 

violation of the relevant emission 

standard. (See, e.g., State 

Implementation Plans: Policy Regarding 

Excessive Emissions During 

Malfunctions, Startup, and Shutdown 

(September 20, 1999); Policy on Excess 

Emissions During Startup, Shutdown, 

Maintenance, and Malfunctions 

(February 15, 1983)). 

The EPA is therefore adding to the 

final rule an affirmative defense to civil 

penalties for violations of emission 

standards that are caused by 

malfunctions, consistent with other 

recent actions by the EPA (e.g., the 

NESHAP for Group I Polymers and 

Resins and the NESHAP for 

Pharmaceuticals Production. 76 FR 

22566 (April 21, 2011)). See 40 CFR 

63.11502 (defining ‘‘affirmative 

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defense’’ to mean, in the context of an 

enforcement proceeding, a response or 

defense put forward by a defendant, 

regarding which the defendant has the 

burden of proof, and the merits of which 

are independently and objectively 

evaluated in a judicial or administrative 

proceeding). We also have added other 

regulatory provisions to specify the 

elements that are necessary to establish 

this affirmative defense; the source must 

prove by a preponderance of the 

evidence that it has met all of the 

elements set forth in 40 CFR 

63.11501(e). See 40 CFR 22.24. The 

criteria ensure that the affirmative 

defense is available only where the 

event that causes a violation of the 

emission standard meets the narrow 

definition of malfunction in 40 CFR 63.2 

(sudden, infrequent, not reasonable 

preventable and not caused by poor 

maintenance and or careless operation). 

For example, to successfully assert the 

affirmative defense, the source must 

prove by a preponderance of the 

evidence that the violations ‘‘[w]ere 

caused by a sudden, infrequent, and 

unavoidable failure of air pollution 

control and monitoring equipment, 

process equipment, or a process to 

operate in a normal or usual 

manner* * *.’’ The criteria also are 

designed to ensure that steps are taken 

to correct the malfunction, to minimize 

emissions in accordance with CAA 

section 63.11501(e), and to prevent 

future malfunctions. For example, the 

source must prove by a preponderance 

of the evidence that ‘‘[r]epairs were 

made as expeditiously as possible when 

a violation occurred* * *’’ and that 

‘‘[a]ll possible steps were taken to 

minimize the impact of the violation on 

ambient air quality, the environment 

and human health* * *.’’ In any 

judicial or administrative proceeding, 

the Administrator may challenge the 

assertion of the affirmative defense, and, 

if the respondent has not met its burden 

of proving all of the requirements in the 

affirmative defense, appropriate 

penalties may be assessed in accordance 

with section 113 of the CAA (see also 40 

CFR 22.77). 

The EPA included an affirmative 

defense in this final rule in an attempt 

to balance a tension, inherent in many 

types of air regulation, to ensure 

adequate compliance while 

simultaneously recognizing that despite 

the most diligent of efforts, emission 

limits may be violated under 

circumstances beyond the control of the 

source. The EPA must establish 

emission standards that ‘‘limit the 

quantity, rate, or concentration of 

emissions of air pollutants on a 

continuous basis.’’ 42 U.S.C. 7602(k) 

(defining ‘‘emission limitation and 

emission standard’’). See, generally, 

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

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

required to ensure that section 112 

emissions limitations are continuous. 

The affirmative defense for malfunction 

events meets this requirement by 

ensuring that even where there is a 

malfunction, the emission limitation is 

still enforceable through injunctive 

relief. See generally, Luminant 

Generation Co. LLC v. United States 

EPA, 2012 U.S. App. LEXIS 21223 (5th 

Cir. Oct. 12, 2012) (upholding EPA’s 

approval of affirmative defense 

provisions in a CAA State 

Implementation Plan). While 

‘‘continuous’’ limitations, on the one 

hand, are required, there is also case law 

indicating that, in many situations, it is 

appropriate for the EPA to account for 

the practical realities of technology. For 

example, in Essex Chemical v. 

Ruckelshaus, 486 F.2d 427, 433 (D.C. 

Cir. 1973), the 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 call into question the 

relevance of these cases today, they 

support the EPA’s view that a system 

that incorporates some level of 

flexibility is reasonable. The affirmative 

defense simply provides for a defense to 

civil penalties for violations that are 

proven to be beyond the control of the 

source. By incorporating an affirmative 

defense, the EPA has formalized its 

approach to upset events. In a Clean 

Water Act setting, the Ninth Circuit 

required this type of formalized 

approach when regulating ‘‘upsets 

beyond the control of the permit 

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

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

also, Mont. Sulphur & Chem. Co. v. 

EPA, 2012 U.S. App. LEXIS 1056 

(January 19, 2012) (rejecting industry 

argument that reliance on the 

affirmative defense was not adequate). 

But see, Weyerhaeuser Co. v. Costle, 590 

F.2d 1011, 1057–58 (D.C. Cir. 1978) 

(holding that an informal approach is 

adequate). The affirmative defense 

provisions give the EPA the flexibility to 

both ensure that its emission limitations 

are ‘‘continuous’’ as required by 42 

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

unplanned upsets and thus support the 

reasonableness of the standard as a 

whole. 

In addition to the affirmative defense 

provisions described above, we are also 

making several changes throughout the 

rule and in Table 9 (the table that 

specifies applicability of General 

Provisions to subpart VVVVVV of 40 

CFR part 63) to specify applicable 

requirements during periods of startup 

and shutdown and periods of 

malfunction. For example, we are 

adding new paragraphs in 40 CFR 

63.11501(c)(1)(vii) and (viii) that would 

require records of the occurrence and 

duration of malfunctions, as well as 

records of actions taken to minimize 

emissions during these periods and to 

fix malfunctioning equipment. We are 

also adding a paragraph in 40 CFR 

63.11501(d)(8) that would require 

reporting of information related to each 

malfunction. Table 9 in the final rule 

states that 63.6(e)(1)(i) does not apply to 

subpart VVVVVV. We are also adding a 

new paragraph in 40 CFR 63.11495(d) 

that specifies the general duty to 

minimize emissions applies at all times. 

In addition to the changes in the text of 

the rule, we are revising the entries for 

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

63.10(d)(5) to reference the new 

paragraphs in 40 CFR 63.11495(d), 

63.11501(c) and 63.11501(d). Finally, 

we are revising Table 9 to state that the 

performance testing requirements in 40 

CFR 63.7(e)(1) do not apply. The 

comments to Table 9 for that provision 

identify the location of the applicable 

performance testing requirements for 

sources subject to the CMAS rule. 

H. Requirements for Metal HAP Process 

Vents 

The revised final rule defines a ‘‘metal 

HAP process vent’’ to include only 

those streams which contain at least 50 

parts per million by volume (ppmv) 

metal HAP. Process vents from CMPU 

that only contain metal HAP in a liquid 

solution or other form that will not 

result in particulate emissions of metal 

HAP (e.g., metal HAP that is in ingot, 

paste, slurry or moist pellet form or 

other form) are not required to comply 

with the metal HAP process vent 

requirements. 

I. Extension of the Compliance Date 

The EPA is extending the compliance 

date for existing sources until March 21, 

2013. 

J. Technical Corrections 

The final rule provides several 

technical corrections. These 

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amendments are being finalized to 

correct inaccuracies and oversights that 

were previously promulgated. These 

changes are described in Table 2 of this 

preamble. Several of these issues were 

identified through the public comments 

and the EPA identified others. 

TABLE 2—MISCELLANEOUS TECHNICAL CORRECTIONS TO 40 CFR PART 63, SUBPART VVVVVV 

Section of subpart VVVVVV Description of correction 

40 CFR 63.11494(a)(3) ............................. We are finalizing several changes to this paragraph. First, we are clarifying that the 0.1-percent and 

1.0-percent concentration thresholds are on a mass basis of the individual Table 1 HAP. Second, 

we are clarifying that all Table 1 HAP, except for quinoline, manganese, and trivalent chromium 

compounds, are considered carcinogenic, probably carcinogenic or possibly carcinogenic. Therefore, the concentration threshold of 1.0 weight percent applies only to quinoline, manganese, and 

trivalent chromium compounds, and the threshold of 0.1 weight percent applies to all other Table 1 

HAP. Third, we are clarifying applicability of CMPU that generate a Table 1 HAP byproduct. If 

Table 1 HAP are generated as a byproduct, the changes clarify that the CMPU is subject to the 

rule if the concentration of the Table 1 HAP in any liquid stream in the CMPU exceeds the same 

thresholds that apply to feedstocks. Specifically, if quinoline is generated as a byproduct, then the 

CMPU is subject if the quinoline concentration in any liquid stream in the CMPU exceeds 1.0 percent by weight. Similarly, if hydrazine or any other organic Table 1 HAP is generated as a byproduct, then the process is subject if the individual concentration of these compounds in any liquid 

stream is greater than 0.1 percent by weight. In addition, we are clarifying that if hydrazine or any 

other organic Table 1 HAP is generated as a byproduct, then the process is subject if the individual concentration of these compounds in any batch process vent or continuous process vent is 

greater than 0.1 percent by weight. Finally, we are consolidating paragraphs (a)(1) and (3) to 

eliminate redundancy. 

40 CFR 63.11494(c)(1)(vii) ....................... We are adding a new paragraph that lists lead oxide production at lead acid battery manufacturing 

facilities in those operations for which this subpart does not apply. These sources are covered by 

40 CFR part 63, subpart PPPPPP—NESHAP for Lead Acid Battery Manufacturing Area Sources. 

40 CFR 63.11494(d) ................................. We are clarifying that a CMPU using only Table 1 metal HAP is not subject to any requirements for 

wastewater systems or heat exchange systems. Only organic HAP are subject to wastewater and 

heat exchange system requirements. 

40 CFR 63.11495(a)(3) ............................. We are splitting this section into an introductory section with five subsections. One sentence that 

contains two concepts has also been split into two separate sentences. The requirements, however, have not changed. 

40 CFR 63.11496(c) ................................. We are adding an example of emission contributions to subtract when determining the TRE index 

value of individual streams before they are combined. 

40 CFR 63.11496(d) ................................. We are revising the title of this paragraph and clarifying that the mass emission rate of halogen 

atoms must be calculated in accordance with § 63.115(d)(2)(v), or alternatively you may designate 

an emission stream as halogenated. 

40 CFR 63.11496(e) ................................. We are adding a new paragraph that clarifies that CEMS requirements and data reduction requirements for CEMS specified in § 63.2450(j) apply. 

40 CFR 63.11496(f)(3)(i)(C) ..................... We are editing this paragraph to add the acronym ‘‘CMS.’’ 

40 CFR 63.11496(f)(3)(ii) .......................... We are editing the first sentence in this paragraph to remove the unnecessary word ‘‘report.’’ 

40 CFR 63.11496(f)(3)(ii) .......................... We are clarifying that if a source elects to conduct an engineering assessment to demonstrate initial 

compliance with the standards for metal HAP process vents, then the design evaluation must be 

conducted at representative operating conditions for the CMPU. 

40 CFR 63.11494(g)(2) ............................. We are clarifying that you may elect to conduct a design evaluation instead of a performance test to 

determine initial compliance with an outlet concentration emission limit. 

40 CFR 63.11494(g)(4)(i) ......................... We are clarifying that you may measure caustic strength of the scrubber effluent for any halogen 

scrubber within a CMPU subject to this rule. 

40 CFR 63.11494(g)(5) ............................. We are clarifying that 40 CFR 63.996(c)(2)(ii) and 63.998(c)(1)(ii)(E) do not apply for the purposes of 

this subpart. 

40 CFR 63.11494(g)(8) ............................. We are adding a new paragraph that clarifies when the initial demonstration requirements for process condensers applies. 

40 CFR 63.11497 ..................................... We are adding a paragraph to this section clarifying that the halogenated vent stream provisions 

also apply to affected storage tanks. 

40 CFR 63.11498(a)(2), 63.11502(b), and 

Table 6.

We are adding a definition of ‘‘hazardous waste treatment’’ in 40 CFR 63.11502(b) to mean treatment in either (1) a RCRA-permitted incinerator, process heater, boiler, or underground injection 

well, or (2) an incinerator, process heater, or boiler complying with 40 CFR part 63, subpart EEE. 

We are also adding corresponding changes to Table 6 to subpart VVVVVV. Specifically, for each 

wastewater stream, Item 1.a would require either wastewater treatment or hazardous waste treatment. In addition, Item 2.b would be edited to use the new term ‘‘hazardous waste treatment’’ and 

to allow for hard piping of wastewater streams to a point of transfer to onsite hazardous waste 

treatment. The changes to Item 1.a also make it clear that the treatment conducted to meet Item 

2.b would satisfy the requirements of Item 1.a. 

40 CFR 63.11500(a) and Table 5 ............ We are adding a paragraph to 40 CFR 63.11500(a) to clarify that that offsite reloading and cleaning 

facilities that are subject to 40 CFR 1253(f) and comply with the monitoring, recordkeeping, and 

reporting requirements in any other subpart of part 63 are considered to be in compliance with the 

monitoring, recordkeeping, and reporting requirements of 40 CFR 63.1253(f)(7)(ii) or (iii). We are 

also adding corresponding changes to Table 5 to subpart VVVVVV to clarify which requirements 

apply to owners or operators of offsite cleaning or reloading facilities. 

40 CFR 63.11501(b) ................................. We are revising this paragraph to allow sources to submit their notice of compliance status (NOCS) 

reports no later than 60 days after the applicable compliance date. 

40 CFR 63.11501(c)(4)(i) .......................... We are replacing the incorrect word ‘‘dimension’’ with the correct word ‘‘dimensions.’’ 

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TABLE 2—MISCELLANEOUS TECHNICAL CORRECTIONS TO 40 CFR PART 63, SUBPART VVVVVV—Continued 

Section of subpart VVVVVV Description of correction 

40 CFR 63.11502(a) ................................. We are inserting references to the definitions of the terms ‘‘batch operation,’’ ‘‘continuous operation,’’ 

and ‘‘isolated intermediate’’ in 40 CFR 63.2550 of the MON. We are also inserting a reference to 

the definition of ‘‘control device’’ in 40 CFR 63.111 of the Hazardous Organic Chemical Manufacturing NESHAP (HON). 

40 CFR 63.11502(b) ................................. We are modifying the definition of ‘‘batch process vent’’ to clarify that vents from batch operations 

are considered to be batch process vents. 

40 CFR 63.11502(b) ................................. We are adding a definition for the term ‘‘engineering assessment’’ consistent with 40 CFR 

63.1257(d)(2)(ii), but which has been revised to include the appropriate references for this rule. 

40 CFR 63.11502(b) ................................. We are adding a definition for the term ‘‘point of determination’’ consistent with 40 CFR 63.111 of 

the HON, but which has been revised to include the appropriate references for this rule. 

40 CFR 63.11502(b) ................................. We are modifying the definition of ‘‘product’’ to remove ‘‘isolated intermediates’’ from the list of materials that are not considered products. 

40 CFR 63.11502(b) ................................. We are adding a definition for the term ‘‘uncontrolled emissions’’ that reads: ‘‘Uncontrolled emissions 

means organic HAP or metal HAP process vent emissions, as applicable, at the outlet of the last 

recovery device, if any, and prior to any control device. In the absence of both recovery devices 

and control devices, uncontrolled emissions are the emissions discharged to the atmosphere.’’ 

Table 3 ...................................................... We are replacing the reference to 40 CFR 63.982(c)(2) in item 1.a with the correct reference to 40 

CFR 63.982(c). 

Table 3 ...................................................... We are adding an item to this table for continuous process vents with a TRE >1.0 but ≤4.0. This 

item clarifies that these continuous process vents are required to comply with 40 CFR 63.982(e) if 

a recovery device is used to maintain a TRE >1.0 but ≤4.0. 

Table 5 ...................................................... We are replacing the reference to 40 CFR 63.982(c)(1) in item 1.b with the correct reference to 40 

CFR 63.982(c). We are also removing the requirement in item 1.b.ii to comply with the inspection 

requirements in 40 CFR 63.11495 for closed vent systems. 

Table 8 ...................................................... We are revising item 1.a.i to clarify that the reference to monthly monitoring for the first 6 months in 

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

Table 9 ...................................................... We are revising the entry to 40 CFR 63.8(c)(4) to state that this paragraph does apply, but only for 

CEMS. The requirements for CPMS are contained in 40 CFR part 63, subpart SS, and requirements for COMS do not apply. 

Table 9 ...................................................... We are revising the entry for 40 CFR 63.8(g)(5) to clarify that the data reduction requirements for 

CEMS are specified in 40 CFR 63.2450(j) and that CPMS requirements are specified in 40 CFR 

part 63, subpart SS. 

Table 9 ...................................................... We are adding an entry for 40 CFR 63.9(i) to state that this paragraph applies to subpart VVVVVV. 

IV. Summary of Major Changes Since 

Proposal 

The EPA received 19 public comment 

letters on the proposed revisions to the 

CMAS final rule. In addition, the EPA 

received six comments and sets of 

materials from industry representatives 

following the close of the comment 

period. After consideration of these 

comments, the EPA is making several 

changes to the final rule. Following are 

the major changes to the standards since 

the proposal. The rationale for these and 

other significant changes can be found 

in this section, in section V of this 

preamble, and in the National Emission 

Standards for Hazardous Air Pollutant 

Emissions for Chemical Manufacturing 

Area Source—Reconsideration: 

Summary of Public Comments and 

Responses, in the CMAS rule docket 

(EPA–HQ–OAR–2008–0334). 

A. Title V Permitting Requirements 

In the proposed rule revisions, we 

proposed to narrow the applicability of 

title V permitting requirements for 

certain synthetic area sources subject to 

the final rule. Specifically, under the 

proposal, only those sources that 

installed a federally-enforceable control 

device on an affected CMPU in order to 

become an area source would be subject 

to the requirement to obtain a title V 

permit. The EPA received public 

comments on this issue from industry 

representatives and two states during 

the public comment period. Public 

commenters were generally opposed to 

the EPA requiring any affected source to 

obtain a title V permit. The commenters 

were concerned that the burden of 

obtaining a title V permit was not 

warranted given the level of public 

participation already required by, and 

other requirements associated with, a 

Federally Enforceable State Operating 

Permit (FESOP) that sources with a 

federally-enforceable control device 

must already obtain. However, 

commenters stated that if the EPA 

should choose to require certain sources 

to obtain a title V permit, then they 

supported limiting the requirement to 

apply to only those sources that 

installed a federally-enforceable control 

device on an affected CMPU. 

As a preliminary matter, we note that 

section 502(a) of the CAA requires all 

area sources subject to CAA section 112 

standards to obtain a title V permit 

unless the EPA makes a finding that title 

V is impracticable, infeasible or 

unnecessarily burdensome. The EPA 

did not exempt CMAS synthetic area 

sources that installed controls to limit 

HAP emissions because we believe that 

the limited burden resulting from the 

applicability of title V to these area 

sources is outweighed by the benefits of 

the title V permit. The EPA also 

continues to maintain that ‘‘while there 

is some burden on the affected facilities, 

we think that the burden is not 

significant because these facilities are 

generally larger and more sophisticated 

than the natural area sources and 

sources that took operational limits to 

become area sources.’’ 74 FR 56014. 

In the final rule revisions, we have 

made slight revisions to the proposed 

changes to the title V permit 

requirement to further clarify the 

applicability of title V to CMAS sources. 

Specifically, we have revised the rule to 

make clear that the installation of a 

federally-enforceable air pollution 

control device on an affected CMPU 

triggers the title V permit requirement 

for any synthetic area source subject to 

the final rule if the air pollution controls 

installed on the affected CMPU are 

required to maintain the source’s 

emissions at area source levels. The EPA 

continues to believe that the additional 

protections provided by a title V permit 

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75748 Federal Register / Vol. 77, No. 246 / Friday, December 21, 2012 / Rules and Regulations 

are warranted for CMAS synthetic area 

sources that installed controls because 

they are generally larger, more 

sophisticated and have higher HAP 

emissions before control than natural 

area sources and synthetic area sources 

that took operational limits. See 74 FR 

56013–56014, 56034–56039 (October 29, 

2009); 77 FR 4525–4527 (January 30, 

2012). 

If a synthetic area source is subject to 

the CMAS rule and it has installed a 

federally-enforceable control device on 

an affected CMPU in order to become an 

area source, it is subject to title V and 

it must obtain a permit. Under 40 CFR 

70.3(c)(2), for any non-major source 

subject to title V, the permitting 

authority must include in the permit all 

applicable requirements that apply to 

emissions units (i.e., the CMPU) that 

trigger applicability of title V. 40 CFR 

70.3(c)(2); see also 40 CFR 70.2 

(defining ‘‘applicable requirement’’). 

Thus, the state title V permitting 

authority may require a source subject 

to title V pursuant to the CMAS rule to 

include in the title V permit only the 

applicable requirements that apply to 

the CMPU(s) that cause the source to be 

subject to title V. 

Additionally, based on the comments 

submitted by industry, we appreciate 

industry’s concern that, due to the 

nature of chemical manufacturing, 

specifically specialty and batch 

chemical manufacturing, the industry 

needs operational flexibility and that 

some types of operational changes 

involving the affected CMPU could be 

subject to frequent title V revisions. 

There are several flexible permitting 

techniques available to sources through 

the title V permitting program, such as 

Alternative Operating Scenarios and 

Approved Replicable Methodologies. 

See 74 FR 51418 (October 6, 2009). We 

therefore encourage sources to consider 

the viability of establishing flexibility 

upfront in their respective title V 

permits as a way to avoid permit 

revisions, without sacrificing 

compliance assurance or operational 

flexibility. 

B. Requirement for Covers or Lids on 

Process Vessels 

In the proposed rule revisions, we 

requested comment on whether a 

change was needed for the definition of 

‘‘in metal HAP service’’ to make it 

consistent with the proposed revisions 

to the definition of ‘‘in organic HAP 

service.’’ Public commenters were 

generally in favor of these proposed 

revisions. 

In the final rule revisions, we have 

revised the definition of ‘‘in metal HAP 

service’’ to state that, consistent with 

the revised definition of ‘‘in organic 

HAP service,’’ a process vessel is no 

longer in metal HAP service after the 

vessel has been emptied to the extent 

practicable (i.e., a vessel with liquid left 

on process vessel walls or as bottom 

clingage, but not in pools, due to floor 

irregularity, is considered completely 

empty) and any cleaning has been 

completed. We have also revised the 

requirement that a cover or lid must be 

in place and closed at all times when a 

process vessel is in organic HAP service 

or in metal HAP service to not apply for 

CMPU using only metal HAP that are in 

a liquid solution or other form that the 

source determines will not result in 

particulate emissions of metal HAP (e.g., 

metal HAP that is in ingot, paste, slurry 

or moist pellet form or other form). 

C. Requirement To Conduct Leak 

Inspections When Equipment Is in HAP 

Service 

We solicited comment on whether to 

permit leak inspections to be conducted 

when equipment was in VOC service, 

rather than just when it was in organic 

HAP service or in metal HAP service. 

Public commenters were generally in 

favor of allowing leak inspections to be 

conducted while equipment was in VOC 

service. 

In the final rule revisions, we are 

allowing facilities to conduct leak 

inspections of equipment in VOC 

service, provided that leaks can be 

detected while in VOC service. A CMPU 

that contains metal HAP as particulate 

must conduct leak inspections while the 

equipment is in metal HAP service. We 

have also added a corresponding 

definition of ‘‘in VOC service’’ to mean 

that a process vessel or piece of 

equipment either contains or contacts a 

fluid that contains VOC. 

D. Requirements for Metal HAP Process 

Vents 

In the proposed rule revisions, we 

solicited comment on whether the 

definition of ‘‘metal HAP process vent’’ 

was applicable to all types of equipment 

from which metal HAP are emitted. The 

original rule defined a metal HAP 

process vent as ‘‘the point of discharge 

to the atmosphere (or inlet to a control 

device, if any) of a metal HAPcontaining gas stream from any CMPU 

at an affected source,’’ regardless of the 

concentration of metal HAP in the 

stream. Public commenters were 

generally in favor of defining a metal 

HAP process vent as containing at least 

50 ppmv metal HAP, consistent with the 

MON. 

In the final rule revisions, we have 

revised the definition of ‘‘metal HAP 

process vent’’ to include only those 

streams which contain at least 50 ppmv 

metal HAP. We have also revised the 

final rule to state that process vents 

from CMPU that only contain metal 

HAP in a liquid solution or other form 

that will not result in particulate 

emissions of metal HAP (e.g., metal 

HAP that is in ingot, paste, slurry or 

moist pellet form or other form) are not 

required to comply with the metal HAP 

process vent requirements. 

E. Extension of the Compliance Date 

In the proposed rule revisions, we did 

not propose to revise the compliance 

date for the final rule, which was 

October 29, 2012. Under CAA section 

112, the compliance date may be no 

more than 3 years after the effective date 

of the final rule, which for the CMAS 

rule was October 29, 2009. Public 

commenters were concerned that due to 

the expected short period of time 

between the promulgation of the final 

rule amendments and the existing 

October 29, 2012, compliance date, 

there would not be sufficient time for 

facilities to review the revised rule 

requirements and certify compliance by 

the compliance date. The commenters 

were particularly concerned with 

determining compliance because the 

proposed changes to the family of 

materials concept may affect 

applicability of the final standards to 

CMPU located at sources subject to the 

CMAS rule. It was the EPA’s 

expectation that the reconsideration 

would be finalized in advance of 

October 29, 2012, compliance date. 

However, the EPA was still in the 

process of finalizing the reconsideration 

action, and on October 25, 2012, the 

EPA published a 60-day stay of the final 

CMAS rule (77 FR 65135). 

In the final rule, the EPA is extending 

the compliance date for existing sources 

until March 21, 2013. We agree that 

existing sources should have additional 

time to evaluate applicability in light of 

the amendments to the rule since 

publication of the final reconsideration 

action is occurring so close to the 

existing source compliance date. We 

think this short extension will provide 

sources the necessary time to determine 

applicability and take the actions 

necessary to comply with the final rule. 

The EPA is not revising the compliance 

date for new sources. 

F. Technical Corrections 

In the proposed rule revisions, we 

proposed in 40 CFR 63.11494(a)(3) a 

technical correction that the 

concentration thresholds for 

applicability of Table 1 HAP present in 

feedstocks or any liquid streams 

(process or waste) were to be 

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determined on a collective Table 1 HAP 

basis. In addition, we also proposed to 

specify that a CMPU is subject to the 

CMAS rule if the collective 

concentration of Table 1 HAP exceeded 

50 ppmv in any process vent stream. 

Public commenters were concerned that 

by revising the rule to determine 

applicability based on collective Table 1 

HAP concentration and a 50 ppmv 

threshold, the applicability of the rule 

would be greatly expanded beyond its 

original scope. 

In the final rule revisions, we have 

revised this language to clarify that the 

concentration thresholds for 

applicability of Table 1 HAP are to be 

determined on an individual Table 1 

HAP concentration, rather than a 

collective concentration. In addition, we 

have also clarified that the 0.1 percent 

by weight threshold for Table 1 HAP 

present in liquid streams (process or 

waste) also applies to Table 1 HAP 

present in any continuous process or 

batch process vent, rather than the 

proposed 50 ppmv threshold. 

We are not finalizing this proposed 

change because we did not fully 

consider the implications of the 

proposed change. We included the 

proposed change in the technical 

corrections section of the proposed rule 

on the belief that it was a technical 

change, but, in fact, the change, if 

finalized, would have had significant 

consequences. The proposed change 

would have likely lead to a considerable 

expansion of the applicability of the 

rule. In addition, sources would no 

longer have been able to determine 

applicability by reviewing their Material 

Safety Data Sheets (MSDS) as the 2009 

final rule provides because the MSDS 

does not indicate the amount of 

emissions below the 0.1 percent 

threshold. This would mean that 

sources would have to go to 

considerable lengths at considerable 

cost in testing very low levels of HAP 

to even determine whether the final rule 

applies to their CMPUs, which is not 

what the EPA intended. 

V. Summary of Comments and 

Responses 

This section contains a summary of 

major comments and responses and 

rationale for changes made to the 

proposed rule. The EPA received many 

comments covering numerous topics. 

The EPA’s responses to those comments 

can be found either in this preamble or 

in the National Emission Standards for 

Hazardous Air Pollutant Emissions for 

Chemical Manufacturing Area Source— 

Reconsideration: Summary of Public 

Comments and Responses, in the CMAS 

rule docket (EPA–HQ–OAR–2008– 

0334). 

A. Title V Permitting Requirements 

Comment: Eight commenters objected 

to the requirement that certain synthetic 

area sources subject to the CMAS rule 

be required to obtain a title V permit. 

The commenters stated that the 

requirement would be overly 

burdensome and that it would impose 

significant additional costs on facilities 

while achieving no additional 

environmental benefit or gains in 

compliance. The commenters estimate 

that it will cost a facility $25,000– 

$100,000 to obtain a title V permit. 

In contrast, one commenter stated that 

the cost of obtaining a title V permit 

instead of a synthetic area source permit 

in their area is comparable due to 

associated permit fees for synthetic area 

source permits and emission fees for 

title V permits. 

Response: The EPA disagrees with the 

commenters that the requirement to 

obtain a title V permit is overly 

burdensome and we maintain that title 

V is appropriate for the sources that will 

be subject to title V pursuant to this 

final rule. In the preamble to the final 

rule, we determined that ‘‘requiring 

additional public involvement and 

compliance assurance requirements 

through title V is important to ensure 

that these sources are maintaining their 

emissions at the area source level, and, 

while there is some burden on the 

affected facilities, we think that the 

burden is not significant because these 

facilities are generally larger and more 

sophisticated than the natural area 

sources and sources that took 

operational limits to become area 

sources.’’ 74 FR 56014. The cost 

estimates provided by the commenters 

are very broad and the commenters do 

not provide any information to support 

the cost estimates that were provided; 

therefore, the EPA is unable to evaluate 

the validity of these estimates. 

Comment: Three commenters 

expressed concern with the impacts that 

the title V program requirements might 

impose on a source subject to the CMAS 

rule. In particular, they expressed 

concern with the ability of batch 

operations that have the need for quick 

changes to their production processes to 

be able to make such changes rapidly 

and with the necessary permitting 

flexibility. The commenters stated that 

by requiring a title V permit, the facility 

will be required to apply for a permit 

modification every time they wanted to 

manufacture a new product, costing 

them both time and money and placing 

them at a competitive disadvantage. 

Response: We appreciate that the 

commenters want to maintain 

operational flexibility, but title V 

permits can and do accommodate 

provisions that provide operational 

flexibility for batch processing (and 

other) operations. In fact, permitting 

authorities have been incorporating 

operational flexibility for batch 

processes into title V permits through a 

variety of mechanisms provided under 

existing rules. These flexibilities have 

eliminated the need to modify permits 

when new products are manufactured. 

For example, since 2003, a number of 

specialty chemical manufacturers, who 

use batch processing, are subject to title 

V permitting under the Miscellaneous 

Organic NESHAP (MON). To 

accommodate the need for frequent 

operational changes at these facilities, 

states have issued flexible operating 

permits that provide these sources with 

the ability to obtain approval in advance 

for a variety of alternative operating 

scenarios, categories of changes, plantwide applicability limits, or other 

operating flexibilities that enable them 

to operate in the most effective way 

while still complying with the 

requirements of the title V program. As 

the CMAS rule notes, batch CMAS 

sources, like MON sources, can take 

advantage of similar flexibilities and set 

their continuous monitoring parameters 

based on their projected range of batch 

scenarios. 

This type of flexibility has been 

effectively incorporated into title V 

permits to sources in the semiconductor 

industry for many years. Just like the 

specialty chemical manufacturing 

industry, the semiconductor industry 

operates in a rapidly changing 

environment, requiring flexibility to 

make quick changes without the need to 

go through permit modifications. 

Through the use of advance approvals 

and flexible permits, companies such as 

Intel have been able to operate in a 

quickly changing environment while 

complying with the requirements of the 

title V program. Intel currently 

introduces a new generation of 

semiconductor chips every 12 to 24 

months, with each new product cycle 

supported by a major facility revamp. 

These operational changes are time 

sensitive to meet product release 

schedules from computer and 

electronics manufacturers and involve 

highly interdependent and sequenced 

steps. Intel also reported a need to make 

rapid (and sometimes iterative) process 

and equipment adjustments in 

production processes to improve yield, 

lower costs, reduce chemical usage, and 

otherwise improve operations. The 

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advance approved changes in Intel’s 

flexible permit likely saved the plant 

hundreds of business days associated 

with making operational and process 

changes to ramp up production for new 

products, respond to market demands, 

and optimize production processes. 

Industry estimates of the opportunity 

costs of production downtime and time 

delays run as high as several million 

dollars in just a few days due to lost 

sales to computer makers and other 

factors. The estimated 150 to 200 

changes per year, combined with the 

otherwise normally expected approval 

time frame of up to 60 days per change, 

indicate that there would likely have 

been significant delay under a 

conventional permitting approach. Intel 

has in the past cited its flexible air 

permit as a vital element enabling Intel 

to double employment during the 

permit term and to transfer and scale-up 

production of next generation computer 

chips at plants throughout the U.S., 

retaining and creating thousands of 

additional jobs. 

The EPA is willing to work with 

companies and state permitting 

authorities to ensure they are aware of 

the flexibilities already available under 

the title V permitting program that 

address the concerns of the small 

number of CMAS synthetic area sources 

that must obtain a title V permit. 

Comment: Four commenters stated 

that the process for obtaining a synthetic 

area source permit and the amount of 

information contained in it are very 

similar to those of a title V permit. 

Three of the commenters detailed the 

steps involved in obtaining each type of 

permit, as well as the information 

contained in each. The commenters also 

stated that both processes provide 

opportunity for public comment on the 

draft permit and that the facilities may 

be required to certify compliance 

annually. One of the commenters also 

provided general information on 

FESOPs and synthetic area source 

permits issued in Illinois and Ohio. 

Another commenter also provided 

general information on FESOP and 

synthetic area source permits for 11 

states, including whether notice and 

comment is required and what 

additional oversight is conducted by the 

state. One commenter noted that FESOP 

programs must be approved through 

State Implementation Programs, which 

provide an opportunity for both the EPA 

and public comment. Another 

commenter stated that under the North 

Carolina Division of Air Quality’s air 

permitting program, synthetic area 

sources are already subject to annual 

inspections similar to what title V 

requires. The commenter also stated that 

sources that have add-on controls 

typically have lower emissions than 

sources that have taken operational 

limits to become synthetic area sources. 

Response: While the commenters 

provided broad, general information on 

the requirements of FESOPs as 

compared to title V permits, none of 

them provided specific examples of 

these permits for the EPA to evaluate 

and compare to title V permits. Without 

this specific information from each state 

(as the requirements for a FESOP vary 

by state), the EPA cannot conclude that 

FESOPs provide the same level of 

information as that of a title V permit. 

In addition, unlike FESOP programs, 

petitions to object to title V permits may 

be brought before the EPA. As the 

requirements for public participation for 

a FESOP vary by state, the EPA cannot 

be assured that all citizens in all states 

would be afforded the same level of 

public participation that a title V permit 

would provide. 

In addition, title V requires a facility 

to include in the title V permit all 

applicable requirements that apply to 

CMAS affected units, not just the CMPU 

requirements that trigger applicability of 

title V, so that the public will be able 

to assess a source’s compliance with all 

requirements that apply to CMAS 

affected units by reviewing the title V 

permit. The public is provided access to 

compliance demonstration information 

submitted to state permitting authorities 

and there is no indication in the 

comments that such information is 

available pursuant to state FESOP 

programs. 

Furthermore, even though certain 

states, such as North Carolina, may 

require that a synthetic area source be 

subject to additional inspections, this 

requirement varies by state and only a 

title V permit would assure that these 

additional inspections are required for 

all CMAS synthetic area sources 

required to obtain a title V permit. 

Finally, we do not agree with the 

assertion that sources that install control 

devices necessarily have lower 

emissions than those that have taken 

operational limits to maintain area 

source status, as both types of synthetic 

area sources are subject to the same 

requirement to maintain emissions 

below 10 tpy of any single HAP or 25 

tpy of any combination of HAP. It is the 

potential level of emissions from the 

synthetic area source absent controls or 

operational limits that we considered 

when comparing the two types of 

synthetic area sources. In the 2009 final 

rule and the reconsideration proposed 

rule revisions, we noted that one reason 

why we were not exempting synthetic 

area sources that installed controls from 

title V is because we believe the sources 

are ‘‘generally larger and more 

sophisticated’’ than natural area sources 

and the synthetic area sources that took 

operational limits. See 77 FR 4525; 74 

FR 56014. We also stated that we 

believe the uncontrolled HAP emissions 

from synthetic area sources that 

installed controls are generally much 

higher than the natural area sources and 

synthetic area sources that took 

operational limits. Id. The commenters 

did not provide any information that 

causes us to question our conclusions. 

Comment: Four commenters stated 

that requiring synthetic area sources 

that installed control devices to obtain 

a title V permit would create a 

disincentive for facilities to maintain 

their synthetic area source status by 

either voluntarily reducing their 

emissions or installing add-on controls 

in lieu of taking production limits, 

which would have a negative impact on 

air quality. 

Response: The EPA disagrees that 

requiring title V permits would 

discourage facilities from maintaining 

their synthetic area source status, as 

facilities would in most, if not all, cases 

be subject to existing NESHAP 

applicable to chemical manufacturing 

major sources if they did not maintain 

synthetic area source status. For 

example, these sources would likely be 

subject to the HON or the MON, both of 

which require more frequent 

inspections and more stringent control 

of emissions. The EPA believes that 

avoiding these additional requirements 

would still provide incentive for 

facilities to maintain their synthetic area 

source status. In addition, all major 

sources of HAP subject to NESHAP are 

required to obtain a title V permit so the 

sources would still be required to 

comply with title V. 

Comment: One commenter stated that 

it is punitive to require title V permits 

for sources that have already made a 

capital investment to achieve area 

source status and avoid title V permits 

in the past. The commenter stated that 

the EPA is ignoring the environmental 

benefit associated with the installation 

of federally-enforceable control devices 

by focusing on the uncontrolled 

potential of these sources. 

Response: Pursuant to section 502(a) 

of the CAA, all area sources subject to 

CAA section 112 standards are required 

to obtain a title V permit unless the EPA 

makes a finding that title V is 

impracticable, infeasible or 

unnecessarily burdensome. Thus, there 

is no basis to support the statement that 

title V is punitive in nature and the EPA 

disagrees that requiring title V permits 

for synthetic area sources that installed 

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control devices is punitive. 

Furthermore, we are not ignoring the 

environmental benefit of controlling 

HAP emissions by requiring title V for 

certain CMAS sources. 

In most, if not all, cases, synthetic 

area sources that installed controls 

would be subject to existing NESHAP 

applicable to major sources if they did 

not take synthetic area source limits and 

those standards are set at the maximum 

achievable control technology (MACT) 

level. Since MACT standards are 

technology based standards established 

based on the performance of the best 

performing source(s), it is likely the 

commenter would have had to achieve 

a comparable level of emissions 

reductions even if they had not taken 

the synthetic area source limit. While 

the EPA appreciates the environmental 

benefit attained by facilities that have 

installed these control devices to 

become area sources, we still believe 

that title V permitting is appropriate to, 

among other things, ensure: that 

synthetic area sources that installed 

controls are maintaining their emissions 

at the permitted level; that the public is 

able to review and evaluate the source’s 

permit and compliance; that there is 

adequate monitoring, recordkeeping and 

reporting; and that the source’s 

management is required to certify 

compliance with the CAA requirements 

applicable to the source. 

Comment: Three commenters stated 

that if the EPA should choose to finalize 

the title V permit requirement, they 

supported the decision to limit this 

requirement to only facilities that have 

installed controls on an affected CMPU 

subject to the CMAS rule. 

Response: The EPA has finalized 

revisions to the title V permit 

requirement; however, the EPA has 

made some revisions to the title V 

permit requirement to further clarify the 

applicability of title V to CMAS sources. 

The final rule only requires title V 

permits for facilities that have installed 

a federally-enforceable control device 

on at least one affected CMPU and the 

air pollution control device is required 

to maintain the source’s emissions at 

area source levels. 

Comment: One commenter expressed 

concern that while the language of the 

original final rule made it clear that 

their facility was exempted from the 

title V requirement, the proposed 

revisions made it ambiguous as to 

whether the facility would be required 

to obtain a title V permit. The 

commenter believed that the revised 

provisions for obtaining a title V permit 

would no longer exclude sources that 

were never a major source, and could 

instead be interpreted to mean that any 

synthetic area source, regardless of 

whether it was previously major or area, 

that installed a federally-enforceable 

control device on an affected CMPU 

would be subject to the title V permit 

requirement. The commenter requested 

that this requirement only apply to 

sources that became a synthetic area 

source as a direct result of installing the 

federally-enforceable control device. 

Response: In response to comments 

on the proposed rule, the EPA has 

revised the final rule language to clarify 

the scope of the title V permit 

requirement. Specifically, the final rule 

requires a title V permit for any 

synthetic area source subject to the 

CMAS rule that would be a major source 

but for the installation of a federallyenforceable control device on at least 

one affected CMPU. The final title V 

requirement language affords no 

consideration to the purpose of the 

installed control device, other than it 

being necessary to maintain the source’s 

emissions at area source levels, or the 

timing of the installation of the control 

device. 

B. Requirements When Other Rules 

Overlap With the Final Rule 

Comment: One commenter stated that 

it is not always clear what the most 

stringent provisions are when looking at 

overlapping provisions. The commenter 

requested that the EPA revise the rule to 

require facilities to make their best 

determination of stringency and submit 

to the appropriate agency for review and 

comment. The commenter also 

requested that states should be allowed 

to make streamlined determinations on 

stringency on an overall program 

stringency basis rather than individual 

rule provisions of overlapping rules. 

Response: The EPA disagrees with the 

commenter that it is necessary to revise 

the final rule to allow for facilities to 

submit their stringency determinations 

for review and comment to their 

permitting authority. As the 

requirements of this section are entirely 

optional, we do not believe it to be 

appropriate to place additional burden 

on the local permitting authorities to 

make the determination of what the 

most stringent provisions are. Instead, 

we believe that this responsibility 

should continue to be placed on the 

facility. For those sources that are 

unable to determine the more stringent 

requirements, we continue to believe 

that it is more appropriate to evaluate 

requests for clarification on a case-bycase basis. 

In addition, we also believe that it 

would be inappropriate for us to make 

a determination of equivalency among 

the numerous state streamlined 

programs with the requirements of the 

CMAS rule. As noted in the preamble to 

the proposed rule revisions, ‘‘[w]e did 

not include language that defines the 

more stringent requirements, as found 

in other rules, due to the great variety 

in characteristics of CMAS processes 

and the wide variety of compliance 

options in both the CMAS rule and 

overlapping rules. This variety makes it 

difficult to develop language that would 

not inadvertently allow a CMAS facility 

to comply with requirements less 

stringent than those contained in 40 

CFR part 63, subpart VVVVVV, or less 

stringent than the required control level 

in an overlapping rule.’’ (77 FR 4528). 

For these reasons, we are not revising 

these provisions in the final rule. 

C. Requirement To Conduct Direct and 

Proximal Leak Inspections 

Comment: Four commenters 

supported the proposed revisions to 

remove the requirement to conduct 

‘‘direct and proximal’’ leak inspections 

and stated that the proposed sight, 

sound or smell inspections are 

appropriate. 

Response: The EPA has finalized the 

proposed revisions to the leak detection 

requirements. 

D. Requirement for Covers or Lids on 

Process Vessels 

Comment: Three commenters 

requested that the EPA clarify that for 

metal HAP precipitate, or metal HAP in 

solution, the requirement to install a 

cover or lid on process vessels in metal 

HAP service does not apply. The 

commenters cited the low potential for 

emissions from these low vapor 

pressure metal HAP solutions as 

rationale for not imposing this 

requirement on such units. One 

commenter estimated that without this 

change, their facility would have to 

invest over $1,000,000 in covers/lids for 

their clarifiers, which are used to 

gravity-separate solids from solution 

and have very low potential for 

emissions. One commenter cited 40 CFR 

part 63, subpart CCCCCCC as an 

example of an area source rule that does 

not require this for metal HAP in 

solution. The commenter also provided 

examples of regulatory text that could 

be used in the CMAS rule. 

Response: The EPA agrees with the 

commenters that the requirement to 

install a cover or lid for process vessels 

in metal HAP service is unnecessary for 

metal HAP in solution. As there is very 

little or no potential for air emissions to 

occur from these solutions, the rule 

need not require the process vessel to be 

covered. As such, we have revised the 

final rule to state that process vessels 

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that only contain metal HAP in a liquid 

solution or other form that will not 

result in particulate emissions of metal 

HAP (e.g., metal HAP that is in ingot, 

paste, slurry or moist pellet form or 

other form) are not required to comply 

with the cover/lid requirement. 

E. Requirement To Conduct Leak 

Inspections When Equipment Is in HAP 

Service 

Comment: Three commenters 

suggested that leak inspections should 

be permitted to be conducted when 

equipment is in non-HAP (i.e., VOC) 

service. Two commenters cited the 

limited personnel available to conduct 

leak inspections and the limited time 

windows for when equipment is in HAP 

service and inspections may be 

conducted as rationale. 

One commenter noted that there is 

little difference between detecting leaks 

for streams in VOC vs. HAP service, as 

many HAP and non-HAP solvents have 

similar vapor and odor thresholds and 

both can be detected adequately by 

sight, sound or smell. The commenter 

also stated that since the MON allows 

for sources to assume that equipment is 

in HAP service, then the CMAS rule 

should permit it as well. 

Response: The EPA agrees with the 

commenters that conducting leak 

inspections when equipment is in VOC 

service is acceptable for the reasons 

described above, and has revised the 

final rule to reflect this option, provided 

that leaks can be detected while in VOC 

service. As it may be very difficult for 

some facilities to conduct their 

inspections while equipment is in HAP 

service due to the limited amount of 

time and/or personnel available, this 

alternative will provide facilities with 

flexibility in conducting inspections 

while maintaining the same level of 

emissions reductions. This option does 

not apply to CMPU that contain metal 

HAP as particulate. For those units, the 

inspections must be conducted while 

the unit is in metal HAP service. 

F. Applicability of the Family of 

Materials Concept 

Comment: Two commenters 

supported the proposed revisions to the 

definition of ‘‘family of materials.’’ 

Response: The EPA has finalized the 

proposed revisions to this definition. 

G. Requirements for Metal HAP Process 

Vents 

Comment: Two commenters stated 

that the definition of metal HAP process 

vent should be revised to better reflect 

GACT for these emission points. The 

commenters state that in sulfuric acid 

regeneration units (SARUs), metal HAP 

are already controlled to >95 percent 

within the process itself and that it 

would be unreasonable to require an 

additional 95 percent control for metal 

HAP vents. The commenters 

recommend that a metal HAP process 

vent be defined as containing at least 50 

ppmv metal HAP (similar to the batch 

and continuous process vents 

definitions), or that all vents from 

SARUs be excluded. 

Response: The EPA agrees with the 

commenters that a metal HAP process 

vent should be defined as containing at 

least 50 ppmv metal HAP, consistent 

with the definitions of batch and 

continuous process vents. In reviewing 

other rules that regulate the chemical 

sector (e.g., the MON) and define a 

process vent as containing at least 50 

ppmv, the EPA found that it applied to 

process vents containing any HAP, not 

just organic HAP. As such, the EPA has 

revised the final rule to define a metal 

HAP process vent as containing at least 

50 ppmv metal HAP. 

Comment: One commenter requested 

that the EPA exempt process vents from 

CMPU using metal HAP in solution 

from the requirements for metal HAP 

process vents. The commenter cites the 

low potential for emissions from these 

low vapor pressure metal HAP solutions 

as rationale for exempting them. One 

commenter cited 40 CFR part 63, 

subpart CCCCCCC as an example of an 

area source rule that exempts metal 

HAP in solution. The commenter also 

provided examples of regulatory text 

that could be used in the CMAS rule. 

Response: The EPA agrees with the 

commenter that it is not necessary to 

subject process vents from CMPU using 

metal HAP in solution to the 

requirements for metal HAP process 

vents. As the CMAS rule requires that 

CMPU process vents with total metal 

HAP emissions of less than 400 pounds/ 

year (lb/yr) maintain records 

demonstrating that total metal HAP 

emissions are less than 400 lb/yr, and it 

is unlikely that process vents from 

CMPU handling only metal HAP in 

solution would ever exceed this value 

due to the little or no potential for air 

emissions to occur, this requirement 

results in an unnecessary recordkeeping 

burden for the facility. As such, we have 

revised the final rule to state that 

process vents from CMPU that only 

contain metal HAP in a liquid solution 

or other form that will not result in 

particulate emissions of metal HAP (e.g., 

metal HAP that is in ingot, paste, slurry 

or moist pellet form or other form) are 

not required to comply with the metal 

HAP process vent requirements. 

H. Compliance Date 

Comment: Four commenters 

requested that the EPA extend the 

compliance date for a period of time 

ranging from 18 months to 3 years. The 

commenters all stated that the potential 

expansion of the applicability of the 

final rule would require additional time 

for sources to re-evaluate whether they 

would be subject to the rule. One 

commenter also cited the uncertainty 

surrounding the family of materials 

concept as finalized in the original rule 

and the fact that the EPA did not 

address the de minimis threshold issue 

that the Petitioners raised in their 

petition for reconsideration as reasons 

for extending the compliance date. The 

commenters stated that the EPA has the 

legal authority to extend the compliance 

date, citing the circumstances under 

which the EPA did so in the Boiler 

MACT reconsideration. 

Response: The EPA agrees that a short 

extension of the compliance date is 

warranted for existing sources, not an 

extension of 18 months to 3 years. Given 

the amount of uncertainty regarding the 

applicability of the family of materials 

concept in the 2009 final rule, the EPA 

believes that with the revised definition 

of ‘‘family of materials’’ in these 

amendments, sources will need the 

short extension to evaluate applicability 

and determine the appropriate 

compliance approach. As such, the EPA 

believes it is reasonable to provide some 

additional period of time for facilities to 

review the revised final rule and 

determine which CMPU are subject to 

the requirements. 

I. Technical Corrections 

Comment: Six commenters objected to 

the proposed revision to base CMPU 

applicability on a collective 0.1 percent 

by weight (for carcinogens) or 1.0 

percent by weight (for non-carcinogens) 

concentration, rather than an individual 

compound concentration. The 

commenters stated that this proposed 

change goes beyond being a ‘‘technical 

correction’’ as described in the proposal 

preamble, as it would significantly 

expand the scope of the rule and 

increase the compliance burden for 

facilities. 

Two commenters stated that going to 

a collective HAP concentration would 

be inconsistent with the Toxics Release 

Inventory and the Occupational Safety 

and Health Administration Hazard 

Communication rules upon which the 

0.1 percent and 1.0 percent thresholds 

were based and would be inconsistent 

with the definition of ‘‘product’’ in the 

CMAS rule. 

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Three commenters also noted that by 

having to use the collective 

concentration, facilities would no longer 

be able to use MSDS to determine 

applicability because MSDS are not 

provided for compounds at 

concentrations below 0.1 percent. 

Response: The EPA agrees with the 

commenters that it is not appropriate to 

use a collective HAP concentration in 

determining applicability. It was not the 

EPA’s intent to expand the applicability 

of the CMAS rule, but rather to clarify 

when it applied. As explained above 

and in section IV.F of this preamble, the 

commenters brought up numerous 

issues that the EPA had not considered 

when proposing this revision that 

would make determining applicability 

and complying with the rule extremely 

difficult. The expansion of the 

applicability was inadvertent and the 

final rule has not been revised as 

proposed. 

Comment: Five commenters objected 

to the proposed revision to determine 

CMPU applicability based on a 

collective 50 ppmv concentration. The 

commenters state that, similar to the 

proposed revision to the 0.1/1.0 percent 

thresholds, this revision would 

significantly expand the scope of the 

rule, as 50 ppmv is a much lower 

concentration than the 0.1/1.0 percent 

concentration thresholds that had 

already been established. Additionally, 

the commenters stated that facilities 

would no longer be able to rely upon 

MSDS for determining applicability and 

the revision goes beyond being a 

‘‘technical correction’’ as described in 

the proposal preamble. 

Response: The EPA agrees with the 

commenters that it is not appropriate to 

establish a collective 50 ppmv 

concentration threshold for determining 

applicability. It was not the EPA’s intent 

to expand the applicability of the CMAS 

rule, but rather to make the applicability 

consistent with the definitions of batch 

and continuous process vents. As 

explained above and in section IV.F of 

this preamble, the commenters brought 

up numerous issues that the EPA had 

not considered when proposing this 

revision, which would have 

inadvertently expanded the 

applicability of the rule. The expansion 

of the applicability was inadvertent and 

the EPA has not revised the final rule as 

proposed. 

VI. What other actions are we taking? 

In addition to requesting 

reconsideration of the above issues, the 

petition for reconsideration also 

requested the EPA take comment on 

three additional issues: (1) A de minimis 

exemption for all sources potentially 

subject to the rule; (2) a Petitioner 

proposed interpretation of the CAA 

section 112(c)(7) definition of ‘‘research 

or laboratory facilities’’ that would 

include commercial development 

activities; and (3) a pollution prevention 

alternative. The EPA is denying 

reconsideration of these issues because 

they failed to meet the standard for 

reconsideration under CAA section 

307(d)(7)(B), and the EPA determined 

that reconsideration was not otherwise 

appropriate. Specifically, on these 

issues, the Petitioners have failed to 

show the following: That it was 

impracticable to raise their objections 

during the comment period; and/or that 

their concern is of central relevance to 

the outcome of the rules. We have 

concluded that no clarifications to the 

underlying rules are warranted for these 

issues. 

Section 307(d)(7)(B) of the CAA states 

that ‘‘[o]nly an objection to a rule or 

procedure which was raised with 

reasonable specificity during the period 

for public comment (including any 

public hearing) may be raised during 

judicial review. If the person raising an 

objection can demonstrate to the 

Administrator that it was impracticable 

to raise such objection within such time 

or if the grounds for such objection 

arose after the period for public 

comment (but within the time specified 

for judicial review) and if such objection 

is of central relevance to the outcome of 

the rule, the Administrator shall 

convene a proceeding for 

reconsideration of the rule and provide 

the same procedural rights as would 

have been afforded had the information 

been available at the time the rule was 

proposed. If the Administrator refuses to 

convene such a proceeding, such person 

may seek review of such refusal in the 

United States court of appeals for the 

appropriate circuit (as provided in 

subsection (b)).’’ 

As to the first procedural criterion for 

reconsideration, a petitioner must show 

why the issue could not have been 

presented during the comment period, 

either because it was impracticable to 

raise the issue during that time or 

because the grounds for the issue arose 

after the period for public comment (but 

within 60 days of publication of the 

final action). In the EPA’s view, an 

objection is of central relevance to the 

outcome of the rule only if it provides 

substantial support for the argument 

that the promulgated regulation should 

be revised. See, e.g., the EPA’s Denial of 

the Petition to Reconsider the 

Endangerment and Cause of Contribute 

Findings for the Greenhouse Gases 

under Section 202 of the Clean Air Act, 

75 FR 49561 (August 13, 2010). See also, 

75 FR 49556, 49560–49563 (August 13, 

2010), and 76 FR 4780, 4786–4788 

(January 26, 2011) for additional 

discussion of the standard for 

reconsideration under CAA section 

307(d)(7)(B). 

A. De Minimis Exemption 

Petitioners stated that the EPA should 

revise the CMAS final rule to include an 

across-the-board de minimis exemption 

for sources. The Petitioners argued that 

reconsideration would allow 

commenters to explain how, even with 

a de minimis exemption, the EPA could 

meet its statutory obligations. 

This issue was contained in public 

comments submitted in response to the 

CMAS proposed rule published on 

October 6, 2008 (73 FR 58352). The 

EPA’s responses to the comments are 

presented in section V.A of the 

preamble to the final rule (74 FR 56016– 

56018) and section 3.2 (pp. 3–3–3–4) of 

the October 2009 Response to 

Comments Regarding National Emission 

Standards for Hazardous Air Pollutants 

for Chemical Manufacturing Area 

Sources document (See Docket Item No. 

EPA–HQ–OAR–2008–0334–0087). 

The comments received on this issue 

demonstrate that the public had ample 

opportunity to comment on this issue 

and indeed did so. The EPA responded 

to those comments and sees no 

substantive reason to revisit this issue. 

Therefore, because the Petitioners did 

not demonstrate that it was 

impracticable to comment on this issue 

during the comment period on the 

proposed rule and the Petitioners did 

comment on it during the comment 

period for the 2008 proposal, the EPA is 

denying reconsideration of this issue. 

B. Research and Development 

Interpretation 

Petitioners stated that the EPA should 

take comment on an interpretation of 

‘‘research and laboratory facility’’ in the 

CMAS final rule that would exempt 

equipment associated with ‘‘research’’ 

or ‘‘laboratory’’ activities as those terms 

are defined by the Petitioners. The 

Petitioners were concerned that, 

without an interpretation of the CAA 

section 112(c)(7) exemption for research 

and development facilities, the CMAS 

rule may pose a substantial compliance 

challenge for some sources. 

This issue was contained in public 

comments submitted in response to the 

CMAS proposed rule published on 

October 6, 2008 (73 FR 58352). The 

EPA’s responses to the comments are 

presented in section 3.5.3 (pp. 3–11) of 

the October 2009 Response to 

Comments Regarding National Emission 

Standards for Hazardous Air Pollutants 

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for Chemical Manufacturing Area 

Sources document (See Docket Item No. 

EPA–HQ–OAR–2008–0334–0087). 

The comments received on this issue 

demonstrate that the public had ample 

opportunity to comment on this issue 

and indeed did so. The EPA responded 

to those comments and sees no 

substantive reason to revisit this issue. 

Therefore, because the Petitioners did 

not demonstrate that it was 

impracticable to comment on this issue 

during the comment period on the 

proposed rule and the Petitioners did 

comment on it during the comment 

period for the 2008 proposal, the EPA is 

denying reconsideration of this issue. 

C. Pollution Prevention Alternative 

Petitioners stated that the EPA should 

revise the CMAS final rule to include a 

pollution prevention alternative. The 

Petitioners argued that there would be 

broad interest in this alternative and 

that data would be made available for 

the EPA to specify requirements for 

such an alternative. 

This issue was contained in public 

comments submitted in response to the 

CMAS proposed rule published on 

October 6, 2008 (73 FR 58352). The 

EPA’s responses to the comments are 

presented in section 4.7 (pp. 4–7—4–8) 

of the October 2009 Response to 

Comments Regarding National Emission 

Standards for Hazardous Air Pollutants 

for Chemical Manufacturing Area 

Sources document (See Docket Item No. 

EPA–HQ–OAR–2008–0334–0087). 

The comments received on this issue 

demonstrate that the public had ample 

opportunity to comment on this issue, 

and indeed did so. The EPA responded 

to those comments and sees no 

substantive reason to revisit this issue. 

Therefore, because the Petitioners did 

not demonstrate that it was 

impracticable to comment on this issue 

during the comment period on the 

proposed rule and the Petitioners did 

comment on it during the comment 

period for the 2008 proposal, the EPA is 

denying reconsideration of this issue. 

VII. Statutory and Executive Order 

Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 

Under Executive Order 12866 (58 FR 

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

‘‘significant regulatory action’’ because 

it may raise novel legal or policy issues. 

Accordingly, the EPA submitted this 

action to the Office of Management and 

Budget (OMB) for review under 

Executive Order 12866 and Executive 

Order 13563 (76 FR 3821, January 21, 

2011), and any changes made in 

response to OMB recommendations 

have been documented in the docket for 

this action. 

B. Paperwork Reduction Act 

The information collection 

requirements in this final rule have been 

submitted for approval to the OMB 

under the Paperwork Reduction Act, 44 

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

Collection Request (ICR) document 

prepared by the EPA has been assigned 

EPA ICR Number 2323.05. The 

information collection requirements are 

not enforceable until OMB approves 

them. 

The information requirements are 

based on notification, recordkeeping 

and reporting requirements in the 

NESHAP General Provisions (40 CFR 

part 63, subpart A), which are 

mandatory for all operators subject to 

national emission standards. These 

recordkeeping and reporting 

requirements are specifically authorized 

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

7414). All information submitted to the 

EPA pursuant to the recordkeeping and 

reporting requirements for which a 

claim of confidentiality is made is 

safeguarded according to agency 

policies set forth in 40 CFR part 2, 

subpart B. 

For this final rule, the EPA is adding 

affirmative defense to the estimate of 

burden in the ICR. To provide the 

public with an estimate of the relative 

magnitude of the burden associated 

with an assertion of the affirmative 

defense position adopted by a source, 

the EPA has provided administrative 

adjustments to this ICR to show what 

the notification, recordkeeping and 

reporting requirements associated with 

the assertion of the affirmative defense 

might entail. The EPA’s estimate for the 

required notification, reports and 

records for any individual incident, 

including the root cause analysis, totals 

$2,958 and is based on the time and 

effort required of a source to review 

relevant data, interview plant 

employees and document the events 

surrounding a malfunction that has 

caused an exceedance of an emissions 

limit. The estimate also includes time to 

produce and retain the record and 

reports for submission to the EPA. The 

EPA provides this illustrative estimate 

of this burden because these costs are 

only incurred if there has been a 

violation and a source chooses to take 

advantage of the affirmative defense. 

Given the variety of circumstances 

under which malfunctions could occur, 

as well as differences among sources’ 

operation and maintenance practices, 

we cannot reliably predict the severity 

and frequency of malfunction-related 

excess emissions events for a particular 

source. It is important to note that the 

EPA has no basis currently for 

estimating the number of malfunctions 

that would qualify for an affirmative 

defense. Current historical records 

would be an inappropriate basis, as 

source owners or operators previously 

operated their facilities in recognition 

that they were exempt from the 

requirement to comply with emissions 

standards during malfunctions. Of the 

number of excess emissions events 

reported by source operators, only a 

small number would be expected to 

result from a malfunction (based on the 

definition above), and only a subset of 

excess emissions caused by 

malfunctions would result in the source 

choosing to assert the affirmative 

defense. Thus, we believe the number of 

instances in which source operators 

might be expected to avail themselves of 

the affirmative defense will be 

extremely small. For this reason, we 

estimate no more than 2 or 3 such 

occurrences for all sources subject to 40 

CFR part 63, subpart VVVVVV over the 

3-year period covered by this ICR. We 

expect to gather information on such 

events in the future and will revise this 

estimate as better information becomes 

available. 

An agency may not conduct or 

sponsor, and a person is not required to 

respond to, a collection of information 

unless it displays a currently valid OMB 

control number. The OMB control 

numbers for the EPA’s regulations in 40 

CFR are listed in 40 CFR part 9. When 

this ICR is approved by OMB, the 

agency will publish a technical 

amendment to 40 CFR part 9 in the 

Federal Register to display the OMB 

control number for the approved 

information collection requirements 

contained in this final rule. 

C. Regulatory Flexibility Act 

The Regulatory Flexibility Act 

generally requires an agency to prepare 

a regulatory flexibility analysis of any 

rule subject to notice and comment 

rulemaking requirements under the 

Administrative Procedures Act or any 

other statute unless the agency certifies 

that the rule will not have a significant 

economic impact on a substantial 

number of small entities. Small entities 

include small businesses, small 

organizations and small governmental 

jurisdictions. 

For purposes of assessing the impacts 

of this final rule on small entities, small 

entity is defined as: (1) A small business 

as defined by the Small Business 

Administration’s regulations at 13 CFR 

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121.201 (less than 500, 750 or 1,000 

employees, depending on the specific 

NAICS Code under subcategory 325); (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 that is independently 

owned and operated and is not 

dominant in its field. 

After considering the economic 

impacts of this final rule on small 

entities, I certify that this action will not 

have a significant economic impact on 

a substantial number of small entities. 

This final rule will not impose any new 

requirements on any small entities 

because it does not impose any 

additional regulatory requirements 

beyond those already promulgated. 

D. Unfunded Mandates Reform Act 

This action contains no federal 

mandates under the provisions of Title 

II of the Unfunded Mandates Reform 

Act of 1995 (UMRA), 2 U.S.C. 1531– 

1538 for state, local or tribal 

governments or the private sector. This 

final rule imposes no enforceable duty 

on any state, local or tribal governments 

or the private sector. Therefore, this 

final rule is not subject to the 

requirements of sections 202 and 205 of 

the UMRA. 

This action is also not subject to the 

requirements of section 203 of UMRA 

because it contains no regulatory 

requirements that might significantly or 

uniquely affect small governments. This 

rule finalizes amendments to aid with 

compliance but does not change the 

level of the standards in the rule. 

E. Executive Order 13132: Federalism 

This action does not have federalism 

implications. It will not have substantial 

direct effects on the states, on the 

relationship between the national 

government and the states or on the 

distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132. This final rule 

will not impose direct compliance costs 

on state or local governments and will 

not preempt state law. Thus, Executive 

Order 13132 does not apply to this 

action. 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

This final rule does not have tribal 

implications, as specified in Executive 

Order 13175 (65 FR 67249, November 9, 

2000). It will not have substantial direct 

effects on tribal governments, on the 

relationship between the federal 

government and Indian tribes or on the 

distribution of power and 

responsibilities between the federal 

government and Indian tribes, as 

specified in Executive Order 13175. 

Thus, Executive Order 13175 does not 

apply to this final rule. 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

Risks and Safety Risks 

The EPA interprets Executive Order 

13045 (62 FR 19885, April 23, 1997) as 

applying to those regulatory actions that 

concern health or safety risks, such that 

the analysis required under section 5– 

501 of the Executive Order has the 

potential to influence the regulation. 

This final rule is not subject to 

Executive Order 13045 because it is 

based solely on technology 

performance. Further, this action does 

not relax the control measures on 

sources regulated by the final rule, and, 

therefore, will maintain the level of 

environmental protection. 

H. Executive Order 13211: Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This action is not a ‘‘significant 

energy action’’ as defined in Executive 

Order 13211 (66 FR 28355, May 22, 

2001), because it is not likely to have a 

significant adverse effect on the supply, 

distribution or use of energy. Further, 

this action does not change the level of 

standards already in place. 

I. National Technology Transfer and 

Advancement Act 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act (NTTAA) of 1995, Public Law No. 

104–113, 12(d) (15 U.S.C. 272 note) 

directs the EPA to use voluntary 

consensus standards (VCS) in its 

regulatory activities, unless to do so 

would be inconsistent with applicable 

law or otherwise impractical. VCS are 

technical standards (e.g., materials 

specifications, test methods, sampling 

procedures and business practices) that 

are developed or adopted by VCS 

bodies. The NTTAA directs the EPA to 

provide Congress, through OMB, 

explanations when the agency decides 

not use available and applicable VCS. 

This final rulemaking does not 

involve technical standards. Therefore, 

the EPA did not consider the use of any 

VCS. 

J. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

Executive Order 12898 (59 FR 7629, 

February 16, 1994) establishes federal 

executive policy on environmental 

justice. Its main provision directs 

federal agencies, to the greatest extent 

practicable and permitted by law, to 

make environmental justice part of their 

mission by identifying and addressing, 

as appropriate, disproportionately high 

and adverse human health or 

environmental effects of their programs, 

policies and activities on minority 

populations and low-income 

populations in the United States. 

The EPA has determined that this 

final rule, as amended, will not have 

disproportionately high and adverse 

human health or environmental effects 

on minority or low-income populations 

because the rule amendments maintain 

the level of environmental protection for 

all affected populations without having 

any disproportionately high and adverse 

human health or environmental effects 

on any population, including any 

minority or low-income population. 

This action does not relax the control 

measures on sources regulated by the 

final rule, and, therefore, will not cause 

emissions increases from these sources. 

K. Congressional Review Act 

The Congressional Review Act, 5 

U.S.C. 801 et seq., as added by the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. EPA will submit a 

report containing this rule and other 

required information to the U.S. Senate, 

the U.S. House of Representatives, and 

the Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. A Major rule 

cannot take effect until 60 days after it 

is published in the Federal Register. 

This action is not a ‘‘major rule’’ as 

defined by 5 U.S.C. 804(2). This rule 

will be effective December 21, 2012. 

List of Subjects in 40 CFR Part 63 

Environmental protection, 

Administrative practice and procedure, 

Air pollution control, Hazardous 

substances. 

Dated: December 14, 2012. 

Lisa P. Jackson, 

Administrator. 

For the reasons cited in the preamble, 

title 40, chapter I, part 63 of the Code 

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75756 Federal Register / Vol. 77, No. 246 / Friday, December 21, 2012 / Rules and Regulations 

of Federal Regulations is amended as 

follows: 

PART 63—[AMENDED] 

■ 1. The authority citation for part 63 

continues to read as follows: 

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

Subpart VVVVVV—[AMENDED] 

■ 2. Lift the stay of subpart VVVVVV 

published October 25, 2012 (77 FR 

65135). 

■ 3. In § 63.11494, lift the stay on 

paragraph (e) published March 14, 2011 

(76 FR 13514). 

■ 4. Section 63.11494 is amended by: 

■ a. Revising paragraph (a); 

■ b. Adding paragraph (c)(1)(vii); 

■ c. Revising the last sentence in 

paragraph (d) introductory text; 

■ d. Revising paragraphs (e) and (f) to 

read as follows: 

§ 63.11494 What are the applicability 

requirements and compliance dates? 

(a) Except as specified in paragraph 

(c) of this section, you are subject to this 

subpart if you own or operate a 

chemical manufacturing process unit 

(CMPU) that meets the conditions 

specified in paragraphs (a)(1) and (2) of 

this section. 

(1) The CMPU is located at an area 

source of hazardous air pollutant (HAP) 

emissions. 

(2) HAP listed in Table 1 to this 

subpart (Table 1 HAP) are present in the 

CMPU, as specified in paragraph 

(a)(2)(i), (ii), (iii), or (iv) of this section. 

(i) The CMPU uses as feedstock, any 

material that contains quinoline, 

manganese, and/or trivalent chromium 

at an individual concentration greater 

than 1.0 percent by weight, or any other 

Table 1 HAP at an individual 

concentration greater than 0.1 percent 

by weight. To determine the Table 1 

HAP content of feedstocks, you may rely 

on formulation data provided by the 

manufacturer or supplier, such as the 

Material Safety Data Sheet (MSDS) for 

the material. If the concentration in an 

MSDS is presented as a range, use the 

upper bound of the range. 

(ii) Quinoline is generated as 

byproduct and is present in the CMPU 

in any liquid stream (process or waste) 

at a concentration greater than 1.0 

percent by weight. 

(iii) Hydrazine and/or Table 1 organic 

HAP other than quinoline are generated 

as byproduct and are present in the 

CMPU in any liquid stream (process or 

waste), continuous process vent, or 

batch process vent at an individual 

concentration greater than 0.1 percent 

by weight. 

(iv) Hydrazine or any Table 1 HAP is 

produced as a product of the CMPU. 

* * * * * 

(c) * * * 

(1) * * * 

(vii) Lead oxide production at Lead 

Acid Battery Manufacturing Facilities, 

subject to subpart PPPPPP of this part. 

* * * * * 

(d) * * * A CMPU using only Table 

1 metal HAP is required to control only 

total CAA section 112(b) metal HAP in 

accordance with § 63.11495 and, if 

applicable, § 63.11496(f). 

* * * * * 

(e) Any area source that installed a 

federally-enforceable control device on 

an affected CMPU is required to obtain 

a permit under 40 CFR part 70 or 40 

CFR part 71 if the control device on the 

affected CMPU is necessary to maintain 

the source’s emissions at area source 

levels. For new and existing sources 

subject to this rule on December 21, 

2012 and subject to title V as a result of 

this rule, a complete title V permit 

application must be submitted no later 

than December 21, 2013. New and 

existing sources that become subject to 

this rule after December 21, 2012 must 

submit a complete title V permit 

application no later than 12 months 

after becoming subject to this rule if the 

source is subject to title V as a result of 

this rule. Otherwise, you are exempt 

from the obligation to obtain a permit 

under 40 CFR part 70 or 40 CFR part 71, 

provided you are not otherwise required 

by law to obtain a permit under 40 CFR 

70.3(a) or 40 CFR 71.3(a). 

Notwithstanding the previous sentence, 

you must continue to comply with the 

provisions of this subpart. 

(f) If you own or operate an existing 

affected source, you must achieve 

compliance with the applicable 

provisions in this subpart no later than 

March 21, 2013. 

* * * * * 

■ 5. Section 63.11495 is amended by: 

■ a. Revising paragraphs (a)(1) and 

(a)(3); 

■ b. Adding paragraph (c) heading; and 

■ c. Adding paragraph (d) to read as 

follows: 

§ 63.11495 What are the management 

practices and other requirements? 

(a) * * * 

(1) Each process vessel must be 

equipped with a cover or lid that must 

be closed at all times when it is in 

organic HAP service or metal HAP 

service, except for manual operations 

that require access, such as material 

addition and removal, inspection, 

sampling and cleaning. This 

requirement does not apply to process 

vessels containing only metal HAP that 

are in a liquid solution or other form 

that will not result in particulate 

emissions of metal HAP (e.g., metal 

HAP that is in ingot, paste, slurry, or 

moist pellet form or other form). 

* * * * * 

(3) You must conduct inspections of 

process vessels and equipment for each 

CMPU in organic HAP service or metal 

HAP service, as specified in paragraphs 

(a)(3)(i) through (v) of this section, to 

demonstrate compliance with paragraph 

(a)(1) of this section and to determine 

that the process vessels and equipment 

are sound and free of leaks. 

Alternatively, except when the subject 

CMPU contains metal HAP as 

particulate, inspections may be 

conducted while the subject process 

vessels and equipment are in VOC 

service, provided that leaks can be 

detected when in VOC service. 

(i) Inspections must be conducted at 

least quarterly. 

(ii) For these inspections, detection 

methods incorporating sight, sound, or 

smell are acceptable. Indications of a 

leak identified using such methods 

constitute a leak unless you demonstrate 

that the indications of a leak are due to 

a condition other than loss of HAP. If 

indications of a leak are determined not 

to be HAP in one quarterly monitoring 

period, you must still perform the 

inspection and demonstration in the 

next quarterly monitoring period. 

(iii) As an alternative to conducting 

inspections, as specified in paragraph 

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

Method 21 of 40 CFR part 60, appendix 

A–7, with a leak definition of 500 ppmv 

to detect leaks. You may also use 

Method 21 with a leak definition of 500 

ppmv to determine if indications of a 

leak identified during an inspection 

conducted in accordance with 

paragraph (a)(3)(ii) of this section are 

due to a condition other than loss of 

HAP. The procedures in this paragraph 

(a)(3)(iii) may not be used as an 

alternative to the inspection required by 

paragraph (a)(3)(ii) of this section for 

process vessels that contain metal HAP 

as particulate. 

(iv) Inspections must be conducted 

while the subject CMPU is operating. 

(v) No inspection is required in a 

calendar quarter during which the 

subject CMPU does not operate for the 

entire calendar quarter and is not in 

organic HAP service or metal HAP 

service. If the CMPU operates at all 

during a calendar quarter, an inspection 

is required. 

* * * * * 

(c) Startup, shutdown and 

malfunction. * * * 

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(d) General duty. At all times, you 

must operate and maintain any affected 

CMPU, including associated air 

pollution control equipment and 

monitoring equipment, in a manner 

consistent with safety and good air 

pollution control practices for 

minimizing emissions. Determination of 

whether such operation and 

maintenance procedures are being used 

will be based on information available 

to the Administrator, which may 

include, but is not limited to, 

monitoring results, review of operation 

and maintenance procedures, review of 

operation and maintenance records, and 

inspection of the CMPU. 

■ 6. Section 63.11496 is amended by: 

■ a. Revising the last sentence in 

paragraph (c); 

■ b. Revising paragraphs (d) and (e) 

introductory texts; 

■ c. Adding paragraph (e)(6); 

■ d. Adding a sentence to the end of 

paragraph (f) introductory text; 

■ e. Revising paragraphs (f)(3)(i)(C), 

(f)(3)(ii), and (g)(1); 

■ f. Revising the first sentence in 

paragraph (g)(2); and 

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

(g)(5). 

The additions and revisions read as 

follows: 

§ 63.11496 What are the standards and 

compliance requirements for process 

vents? 

* * * * * 

(c) * * * The TRE index value for 

continuous process vents and the 

annual emissions from batch process 

vents shall be determined for the 

individual streams before they are 

combined, and prior to any control (e.g., 

by subtracting any emission 

contributions from storage tanks, 

continuous process vents or batch 

process vents, as applicable), in order to 

determine the most stringent applicable 

requirements. 

(d) Halogenated streams. You must 

determine if an emission stream is a 

halogenated vent stream by calculating 

the mass emission rate of halogen atoms 

in accordance with § 63.115(d)(2)(v). 

Alternatively, you may elect to 

designate the emission stream as 

halogenated. If you use a combustion 

device to comply with the emission 

limits for organic HAP from a 

halogenated batch process vent or a 

halogenated continuous process vent, 

you must use a halogen reduction 

device to meet the emission limit in 

either paragraph (d)(1) or (d)(2) of this 

section and in accordance with § 63.994 

and the requirements referenced 

therein. 

* * * * * 

(e) Alternative standard for organic 

HAP. Exceptions to the requirements for 

the alternative standard requirements 

specified in Tables 2 and 3 to this 

subpart and § 63.2505 are specified in 

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

section. 

* * * * * 

(6) CEMS requirements and data 

reduction requirements for CEMS 

specified in § 63.2450(j) apply. 

* * * * * 

(f) Emissions from metal HAP process 

vents. * * * The requirements of this 

paragraph (f) do not apply to metal HAP 

process vents from CMPU containing 

only metal HAP that are in a liquid 

solution or other form that will not 

result in particulate emissions of metal 

HAP (e.g., metal HAP that is in ingot, 

paste, slurry, or moist pellet form or 

other form). 

* * * * * 

(3) * * * 

(i) * * * 

(C) Operation and maintenance plan 

for the control device (including a 

preventative maintenance schedule 

consistent with the manufacturer’s 

instructions for routine and long-term 

maintenance) and continuous 

monitoring system (CMS). 

* * * * * 

(ii) You must conduct a performance 

test or an engineering assessment for 

each CMPU subject to a HAP metals 

emissions limit in Table 4 to this 

subpart and report the results in your 

Notification of Compliance Status 

(NOCS). Each performance test or 

engineering assessment must be 

conducted under representative 

operating conditions, and sampling for 

each performance test must be 

conducted at both the inlet and outlet of 

the control device. Upon request, you 

shall make available to the 

Administrator such records as may be 

necessary to determine the conditions of 

performance tests. If you own or operate 

an existing affected source, you are not 

required to conduct a performance test 

if a prior performance test was 

conducted within the 5 years prior to 

the effective date using the same 

methods specified in paragraph (f)(3)(iii) 

of this section, and, either no process 

changes have been made since the test, 

or, if you can demonstrate that the 

results of the performance test, with or 

without adjustments, reliably 

demonstrate compliance despite process 

changes. 

* * * * * 

(g) * * * 

(1) Requirements for performance 

tests. (i) The requirements specified in 

§ 63.2450(g)(1) through (4) apply instead 

of, or in addition to, the requirements 

specified in 40 CFR part 63, subpart SS. 

(ii) Upon request, you shall make 

available to the Administrator, such 

records as may be necessary to 

determine the conditions of 

performance tests. 

(2) Design evaluation. To determine 

initial compliance with a percent 

reduction or outlet concentration 

emission limit, you may elect to 

conduct a design evaluation as specified 

in § 63.1257(a)(1) instead of a 

performance test as specified in subpart 

SS of this part 63. * * * 

* * * * * 

(4) * * * 

(i) You may measure pH or caustic 

strength of the scrubber effluent at least 

once per day for any halogen scrubber 

within a CMPU subject to this rule. 

* * * * * 

(5) Startup, shutdown, malfunction 

(SSM). Sections 63.996(c)(2)(ii) and 

63.998(b)(2)(iii), (b)(6)(i)(A), (c)(1)(ii)(E) 

and (d)(3) do not apply for the purposes 

of this subpart. 

* * * * * 

■ 7. Section 63.11497 is amended by 

adding paragraph (d) to read as follows: 

§ 63.11497 What are the standards and 

compliance requirements for storage 

tanks? 

* * * * * 

(d) Combustion of halogenated 

streams. If you use a combustion device 

to comply with the emission limits for 

organic HAP from a halogenated vent 

stream from a storage tank, you must 

reduce emissions in accordance with 

§ 63.11496(d) and the requirements 

referenced therein. 

■ 8. Section 63.11498 is amended by 

revising paragraph (a)(2) to read as 

follows: 

§ 63.11498 What are the standards and 

compliance requirements for wastewater 

systems? 

(a) * * * 

(2) You are not required to determine 

the partially soluble concentration in 

wastewater that is hard piped to a 

combustion unit or hazardous waste 

treatment unit, as specified in Table 6, 

Item 2.b to this subpart. 

* * * * * 

■ 9. Section 63.11500 is amended by 

revising paragraph (a) to read as follows: 

§ 63.11500 What compliance options do I 

have if part of my plant is subject to both 

this subpart and another Federal standard? 

* * * * * 

(a) Compliance with other subparts of 

this part 63. (1) If any part of a CMPU 

that is subject to the provisions of this 

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subpart is also subject to the provisions 

of another subpart of 40 CFR part 63, 

then compliance with any of the 

requirements in the other subpart of this 

part 63 that are at least as stringent as 

the corresponding requirements in this 

subpart VVVVVV constitutes 

compliance with this subpart VVVVVV. 

(2) After the compliance dates 

specified in § 63.11494, at an offsite 

reloading or cleaning facility subject to 

§ 63.1253(f), as referenced from 

§ 63.2470(e) and Table 4 to subpart 

VVVVVV, compliance with the 

monitoring, recordkeeping, and 

reporting provisions of any other 

subpart of this part 63 constitutes 

compliance with the monitoring, 

recordkeeping, and reporting provisions 

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

identify in your notification of 

compliance status report required by 

§ 63.11501(b) the subpart of this part 63 

with which the owner or operator of the 

offsite reloading or cleaning facility 

complies. 

* * * * * 

■ 10. Section 63.11501 is amended by: 

■ a. Revising the section heading; 

■ b. Revising the last sentence in 

paragraph (c) introductory text; 

■ c. Revising paragraph (c)(1) 

introductory text; 

■ d. Adding paragraphs (c)(1)(vii) and 

(c)(1)(viii); 

■ e. Revising paragraph (c)(4)(i); 

■ f. Adding paragraph (c)(8); 

■ g. Revising the last sentence in 

paragraph (d) introductory text; and 

■ h. Adding paragraphs (d)(8) and (e) to 

read as follows: 

§ 63.11501 What are the notification, 

recordkeeping, and reporting requirements, 

and how may I assert an affirmative defense 

for violation of emission standards during 

malfunction? 

* * * * * 

(c) Recordkeeping. * * * If you are 

subject, you must comply with the 

recordkeeping and reporting 

requirements of § 63.10(b)(2)(iii) and (vi) 

through (xiv), and the applicable 

requirements specified in paragraphs 

(c)(1) through (8) of this section. 

(1) For each CMPU subject to this 

subpart, you must keep the records 

specified in paragraphs (c)(1)(i) through 

(viii) of this section. 

* * * * * 

(vii) Records of the date, time, and 

duration of each malfunction of 

operation of process equipment, control 

devices, recovery devices, or continuous 

monitoring systems used to comply 

with this subpart that causes a failure to 

meet a standard. The record must 

include a list of the affected sources or 

equipment, an estimate of the volume of 

each regulated pollutant emitted over 

the standard, and a description of the 

method used to estimate the emissions. 

(viii) Records of actions taken during 

periods of malfunction to minimize 

emissions in accordance with 

§ 63.11495(d), including corrective 

actions to restore malfunctioning 

process and air pollution control and 

monitoring equipment to its normal or 

usual manner of operation. 

* * * * * 

(4) * * * 

(i) Keep records of the vessel 

dimensions, capacity, and liquid stored, 

as specified in § 63.1065(a). 

* * * * * 

(8) For continuous process vents 

subject to Table 3 to this subpart, keep 

records of the occurrence and duration 

of each startup and shutdown of 

operation of process equipment, or of air 

pollution control and monitoring 

equipment. 

(d) * * * Reports are required only 

for semiannual periods during which 

you experienced any of the events 

described in paragraphs (d)(1) through 

(8) of this section. 

* * * * * 

(8) Malfunctions. If a malfunction 

occurred during the reporting period, 

the report must include the number of 

instances of malfunctions that caused 

emissions in excess of a standard. For 

each malfunction that caused emissions 

in excess of a standard, the report must 

include a list of the affected sources or 

equipment, an estimate of the volume of 

each regulated pollutant emitted over 

the standard, and a description of the 

method used to estimate the emissions. 

The report must also include a 

description of actions you took during a 

malfunction of an affected source to 

minimize emissions in accordance with 

§ 63.11495(d), including actions taken to 

correct a malfunction. 

(e) Affirmative defense for violation of 

emission standards during malfunction. 

In response to an action to enforce the 

standards set forth in §§ 63.11495 

through 63.11499, you may assert an 

affirmative defense to a claim for civil 

penalties for violations of such 

standards that are caused by 

malfunction, as defined at 40 CFR 63.2. 

Appropriate penalties may be assessed 

if you fail to meet your burden of 

proving all of the requirements in the 

affirmative defense. The affirmative 

defense shall not available for claims for 

injunctive relief. 

(1) To establish the affirmative 

defense in any action to enforce such a 

standard, you must timely meet the 

notification requirements in paragraph 

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

a preponderance of evidence that: 

(i) The violation: 

(A) Was caused by a sudden, 

infrequent, and unavoidable failure of 

air pollution control equipment, process 

equipment, or a process to operate in a 

normal or usual manner; and 

(B) Could not have been prevented 

through careful planning, proper design, 

or better operation and maintenance 

practices; and 

(C) Did not stem from any activity or 

event that could have been foreseen and 

avoided, or planned for; and 

(D) Was not part of a recurring pattern 

indicative of inadequate design, 

operation, or maintenance; and 

(ii) Repairs were made as 

expeditiously as possible when a 

violation occurred. Off-shift and 

overtime labor were used, to the extent 

practicable to make these repairs; and 

(iii) The frequency, amount, and 

duration of the violation (including any 

bypass) were minimized to the 

maximum extent practicable; and 

(iv) If the violation resulted from a 

bypass of control equipment or a 

process, then the bypass was 

unavoidable to prevent loss of life, 

personal injury, or severe property 

damage; and 

(v) All possible steps were taken to 

minimize the impact of the violation on 

ambient air quality, the environment 

and human health; and 

(vi) All emissions monitoring and 

control systems were kept in operation 

if at all possible, consistent with safety 

and good air pollution control practices; 

and 

(vii) All of the actions in response to 

the violation were documented by 

properly signed, contemporaneous 

operating logs; and 

(viii) At all times, the affected CMPU 

was operated in a manner consistent 

with good practices for minimizing 

emissions; and 

(ix) A written root cause analysis has 

been prepared, the purpose of which is 

to determine, correct, and eliminate the 

primary causes of the malfunction and 

the violation resulting from the 

malfunction event at issue. The analysis 

must also specify, using best monitoring 

methods and engineering judgment, the 

amount of any emissions that were the 

result of the malfunction. 

(2) Report. If you seek to assert an 

affirmative defense, you must submit a 

written report to the Administrator, 

with all necessary supporting 

documentation, that you have met the 

requirements set forth in paragraph 

(e)(1) of this section. This affirmative 

defense report must be included in the 

first periodic compliance report, 

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deviation report, or excess emission 

report otherwise required after the 

initial occurrence of the violation of the 

relevant standard (which may be the 

end of any applicable averaging period). 

If such compliance report, deviation 

report, or excess emission report is due 

less than 45 days after the initial 

occurrence of the violation, the 

affirmative defense report may be 

included in the second compliance 

report, deviation report, or excess 

emission report due after the initial 

occurrence of the violation of the 

relevant standard. 

■ 11. Section 63.11502 is amended by: 

■ a. In paragraph (a) adding in 

alphabetical order the terms ‘‘Batch 

operation (§ 63.2550),’’ ‘‘Continuous 

operation (§ 63.2550),’’ ‘‘Control device 

(§ 63.111),’’ and ‘‘Isolated intermediate 

(§ 63.2550),’’ and removing the term 

‘‘Family of materials (§ 63.2550)’’; and 

■ b. In paragraph (b) adding in 

alphabetical order definitions for 

‘‘Affirmative defense,’’ ‘‘Engineering 

assessment,’’ ‘‘Family of materials,’’ 

‘‘Hazardous waste treatment,’’ ‘‘In VOC 

service,’’ ‘‘Point of determination,’’ and 

‘‘Uncontrolled emissions,’’ revising the 

second sentence of the definition of 

‘‘Batch process vent,’’ revising 

paragraph (1) of the definition of 

‘‘Chemical manufacturing process,’’ and 

revising the definitions for ‘‘In metal 

HAP service,’’ ‘‘In organic HAP 

service,’’ ‘‘Metal HAP process vent,’’ 

and ‘‘Product’’ to read as follows: 

§ 63.11502 What definitions apply to this 

subpart? 

* * * * * 

(b) * * * 

Affirmative defense means, in the 

context of an enforcement proceeding, a 

response or defense put forward by a 

defendant, regarding which the 

defendant has the burden of proof, and 

the merits of which are independently 

and objectively evaluated in a judicial 

or administrative proceeding. 

* * * * * 

Batch process vent * * * Batch 

process vents include vents from batch 

operations and vents with intermittent 

flow from continuous operations that 

are not combined with any stream that 

originated as a continuous gas stream 

from the same continuous 

process. * * * 

* * * * * 

Chemical manufacturing 

process * * * 

(1) All cleaning operations; 

* * * * * 

Engineering assessment means, but is 

not limited to, the following: 

(1) Previous test results provided the 

tests are representative of current 

operating practices at the process unit. 

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

representative of the process under 

representative operating conditions. 

(3) Maximum flow rate, TOC emission 

rate, organic HAP emission rate, metal 

HAP emission rate, or net heating value 

limit specified or implied within a 

permit limit applicable to the process 

vent. 

(4) Design analysis based on accepted 

chemical engineering principles, 

measurable process parameters, or 

physical or chemical laws or properties. 

Examples of analytical methods include, 

but are not limited to: 

(i) Use of material balances based on 

process stoichiometry to estimate 

maximum organic HAP or metal HAP 

concentrations; 

(ii) Estimation of maximum flow rate 

based on physical equipment design 

such as pump or blower capacities; 

(iii) Estimation of TOC, organic HAP, 

or metal HAP concentrations based on 

saturation conditions; or 

(iv) Estimation of maximum expected 

net heating value based on the vent 

stream concentration of each organic 

compound or, alternatively, as if all 

TOC in the vent stream were the 

compound with the highest heating 

value. 

(5) All data, assumptions, and 

procedures used in the engineering 

assessment shall be documented. 

* * * * * 

Family of materials means a grouping 

of materials that have the same basic 

composition or the same basic end use 

or functionality; are produced using the 

same basic feedstocks, the same 

manufacturing equipment configuration 

and in the same sequence of steps; and 

whose production results in emissions 

of the same Table 1 HAP at 

approximately the same rate per pound 

of product produced. Examples of 

families of materials include multiple 

grades of same product or different 

variations of a product (e.g., blue, black 

and red resins). 

* * * * * 

Hazardous waste treatment, as used 

in the wastewater requirements, means 

treatment in any of the following units: 

(1) A hazardous waste incinerator for 

which you have been issued a final 

permit under 40 CFR part 270 and 

comply with the requirements of 40 CFR 

part 264, subpart O, for which you have 

certified compliance with the interim 

status requirements of 40 CFR part 265, 

subpart O, or for which you have 

submitted a Notification of Compliance 

under 40 CFR 63.1207(j) and comply 

with the requirements of 40 CFR part 

63, subpart EEE at all times (including 

times when non-hazardous waste is 

being burned); 

(2) A process heater or boiler for 

which you have been issued a final 

permit under 40 CFR part 270 and 

comply with the requirements of 40 CFR 

part 266, subpart H, for which you have 

certified compliance with the interim 

status requirements of 40 CFR part 266, 

subpart H, or for which you have 

submitted a Notification of Compliance 

under 40 CFR 63.1207(j) and comply 

with the requirements of 40 CFR part 

63, subpart EEE at all times (including 

times when non-hazardous waste is 

being burned); or 

(3) An underground injection well for 

which you have been issued a final 

permit under 40 CFR part 270 or 40 CFR 

part 144 and comply with the 

requirements of 40 CFR part 122. 

In metal HAP service means that a 

process vessel or piece of equipment 

either contains or contacts a feedstock, 

byproduct, or product that contains 

metal HAP. A process vessel is no 

longer in metal HAP service after the 

vessel has been emptied to the extent 

practicable (i.e., a vessel with liquid left 

on process vessel walls or as bottom 

clingage, but not in pools, due to floor 

irregularity, is considered completely 

empty) and any cleaning has been 

completed. 

In organic HAP service means that a 

process vessel or piece of equipment 

either contains or contacts a feedstock, 

byproduct, or product that contains an 

organic HAP, excluding any organic 

HAP used in manual cleaning activities. 

A process vessel is no longer in organic 

HAP service after the vessel has been 

emptied to the extent practicable (i.e., a 

vessel with liquid left on process vessel 

walls or as bottom clingage, but not in 

pools, due to floor irregularity, is 

considered completely empty) and any 

cleaning has been completed. 

In VOC service means that a process 

vessel or piece of equipment either 

contains or contacts a fluid that contains 

VOC. 

* * * * * 

Metal HAP process vent means the 

point of discharge to the atmosphere (or 

inlet to a control device, if any) of a 

metal HAP-containing gas stream from 

any CMPU at an affected source 

containing at least 50 ppmv metal HAP. 

The metal HAP concentration may be 

determined using any of the following: 

process knowledge, an engineering 

assessment, or test data. 

* * * * * 

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Point of determination means ‘‘point 

of determination’’ as defined in § 63.111 

in subpart G of this part, except: 

(1) The reference to Table 8 or Table 

9 compounds means Table 9 (subpart G) 

or Table 7 (subpart VVVVVV) 

compounds; 

(2) The reference to ‘‘as determined in 

§ 63.144 of this subpart’’ does not apply 

for the purposes of this subpart; and 

(3) The point of determination is 

made at the point where the stream exits 

the CMPU. If a recovery device is used, 

the point of determination is after the 

last recovery device. 

Product means a compound or 

chemical which is manufactured as the 

intended product of the CMPU. 

Products include co-products. Byproducts, impurities, wastes, and trace 

contaminants are not considered 

products. 

* * * * * 

Uncontrolled emissions means 

organic HAP process vent emissions or 

metal HAP process vent emissions, as 

applicable, at the outlet of the last 

recovery device, if any, and prior to any 

control device. In the absence of both 

recovery devices and control devices, 

uncontrolled emissions are the 

emissions discharged to the atmosphere. 

* * * * * 

■ 12. Table 3 to subpart VVVVVV of 

part 63 is revised to read as follows: 

TABLE 3 TO SUBPART VVVVVV OF PART 63—EMISSION LIMITS AND COMPLIANCE REQUIREMENTS FOR CONTINUOUS

PROCESS VENTS

[As required in § 63.11496, you must comply with the requirements for continuous process vents as shown in the following table] 

For . . . You must . . . Except . . . 

1. Each continuous process vent with a TRE 

≤1.0.

a. Reduce emissions of total organic HAP by 

≥95 percent by weight (≥85 percent by 

weight for periods of startup or shutdown) 

or to ≤20 ppmv by routing emissions 

through a closed vent system to any combination of control devices (except a flare) 

in accordance with the requirements of 

§ 63.982(c) and the requirements referenced therein; or 

i. Compliance may be based on either total 

organic HAP or TOC; and 

ii. As specified in § 63.11496(g). 

b. Reduce emissions of total organic by HAP 

by routing all emissions through a closedvent system to a flare (except that a flare 

may not be used to control halogenated 

vent streams) in accordance with the requirements of § 63.982(b) and the requirements referenced therein, or 

i. Not applicable. 

c. Comply with the alternative standard specified in § 63.2505 and the requirements referenced therein i. As specified in § 63.11496(e). 

2. Halogenated vent stream that is controlled 

through combustion.

a. Comply with the requirements for halogen 

scrubbers in § 63.11496(d). 

3. Each continuous process vent with a TRE 

>1.0 but ≤4.0.

a. Comply with the requirements of 

§ 63.982(e) and the requirements specified 

therein if a recovery device, as defined in 

§ 63.11502, is used to maintain a TRE >1.0 

but ≤4.0. 

■ 13. The entry for Item 1 of Table 5 to 

subpart VVVVVV of part 63 is revised 

to read as follows: 

* * * * * 

TABLE 5 TO SUBPART VVVVVV OF PART 63—EMISSION LIMITS AND COMPLIANCE REQUIREMENTS FOR STORAGE TANKS

For each . . . You must . . . Except . . . 

1. Storage tank with a design capacity ≥40,000 

gallons, storing liquid that contains organic 

HAP listed in Table 1 to this subpart, and for 

which the maximum true vapor pressure 

(MTVP) of total organic HAP at the storage 

temperature is ≥5.2 kPa and <76.6 kPa..

a. Comply with the requirements of subpart 

WW of this part; 

i. All required seals must be installed by the 

compliance date in § 63.11494. 

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TABLE 5 TO SUBPART VVVVVV OF PART 63—EMISSION LIMITS AND COMPLIANCE REQUIREMENTS FOR STORAGE

TANKS—Continued 

For each . . . You must . . . Except . . . 

b. Reduce total organic HAP emissions by 

≥95 percent by weight by operating and 

maintaining a closed-vent system and control device (other than a flare) in accordance with § 63.982(c); or 

i. Compliance may be based on either total 

organic HAP or TOC; 

ii. When the term storage vessel is used in 

subpart SS of this part, the term storage 

tank, surge control vessel, or bottoms receiver, as defined in § 63.11502 of this subpart, applies; and 

iii. The requirements do not apply during periods of planned routine maintenance of the 

control device, as specified in 

§ 63.11497(b). 

c. Reduce total HAP emissions by operating 

and maintaining a closed-vent system and 

a flare in accordance with § 63.982(b); or 

i. The requirements do not apply during periods of planned routine maintenance of the 

flare, as specified in § 63.11497(b); and 

ii. When the term storage vessel is used in 

subpart SS of this part, it means storage 

tank, surge control vessel, or bottoms receiver, as defined in § 63.11502 of this subpart. 

d. Vapor balance in accordance with 

§ 63.2470(e); or 

i. To comply with § 63.1253(f)(6)(i), the owner 

or operator of an offsite cleaning or reloading facility must comply with § 63.11494 and 

§ 63.11502 instead of complying with 

§ 63.1253(f)(7)(ii), except as specified in 

item 1.d.ii and 1.2.iii of this table. 

ii. The reporting requirements in § 63.11501 

do not apply to the owner or operator of the 

offsite cleaning or reloading facility. 

iii. As an alternative to complying with the 

monitoring, recordkeeping, and reporting 

provisions in §§ 63.11494 through 

63.11502, the owner or operator of an offsite cleaning or reloading facility may comply as specified in § 63.11500 with any 

other subpart of this part 63 which has 

monitoring, recordkeeping, and reporting 

provisions as specified in § 63.11500. 

e. Route emissions to a fuel gas system or 

process in accordance with the requirements in § 63.982(d) and the requirements 

referenced therein. 

i. When the term storage vessel is used in 

subpart SS of this part, it means storage 

tank, surge control vessel, or bottoms receiver, as defined in § 63.11502. 

*******

* * * * * ■ 14. Table 6 to subpart VVVVVV of 

part 63 is revised to read as follows: 

TABLE 6 TO SUBPART VVVVVV OF PART 63—EMISSION LIMITS AND COMPLIANCE REQUIREMENTS FOR WASTEWATER

SYSTEMS

[As required in § 63.11498, you must comply with the requirements for wastewater systems as shown in the following table] 

For each . . . You must . . . And you must . . . 

1. Wastewater stream ........................................ a. Discharge to onsite or offsite wastewater 

treatment or hazardous waste treatment 

i. Maintain records identifying each wastewater stream and documenting the type of 

treatment that it receives. Multiple wastewater streams with similar characteristics 

and from the same type of activity in a 

CMPU may be grouped together for recordkeeping purposes. 

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TABLE 6 TO SUBPART VVVVVV OF PART 63—EMISSION LIMITS AND COMPLIANCE REQUIREMENTS FOR WASTEWATER

SYSTEMS—Continued 

[As required in § 63.11498, you must comply with the requirements for wastewater systems as shown in the following table] 

For each . . . You must . . . And you must . . . 

2. Wastewater stream containing partially soluble HAP at a concentration ≥10,000 ppmw 

and separate organic and water phases.

a. Use a decanter, steam stripper, thin film 

evaporator, or distillation unit 

to separate the water phase from the organic phase(s); or 

i. For the water phase, comply with the requirements in Item 1 of this table, and 

ii. For the organic phase(s), recycle to a process, use as fuel, or dispose as hazardous 

waste either onsite or offsite, and 

iii. Keep records of the wastewater streams 

subject to this requirement and the disposition of the organic phase(s). 

b. Hard pipe the entire wastewater stream to 

onsite treatment as a hazardous waste, or 

hard pipe the entire wastewater stream to a 

point of transfer to onsite or offsite hazardous waste treatment. 

i. Keep records of the wastewater streams 

subject to this requirement and the disposition of the wastewater streams. 

■ 15. Table 8 to subpart VVVVVV of 

part 63 is revised to read as follows: 

TABLE 8 TO SUBPART VVVVVV OF PART 63—EMISSION LIMITS AND COMPLIANCE REQUIREMENTS FOR HEAT EXCHANGE

SYSTEMS

[As required in § 63.11499, you must comply with the requirements for heat exchange systems as shown in the following table] 

For . . . You must . . . Except . . . 

1. Each heat exchange system with a cooling 

water flow rate ≥8,000 gal/min and not meeting one or more of the conditions in 

§ 63.104(a).

a. Comply with the monitoring requirements in 

§ 63.104(c), the leak repair requirements in 

§ 63.104(d) and (e), and the recordkeeping 

and reporting requirements in § 63.104(f); or 

i. The reference to monthly monitoring for the 

first 6 months in § 63.104(b)(1) and 

(c)(1)(iii) does not apply. Monitoring shall be 

no less frequent than quarterly; 

ii. The reference in § 63.104(f)(1) to record retention requirements in § 63.103(c)(1) does 

not apply. Records must be retained as 

specified in §§ 63.10(b)(1) and 63.11501(c); 

and 

iii. The reference in § 63.104(f)(2) to ‘‘the next 

semi-annual periodic report required by 

§ 63.152(c)’’ means the next semi-annual 

compliance report required by 

§ 63.11501(f). 

b. Comply with the heat exchange system requirements in § 63.104(b) and the requirements referenced therein. i. Not applicable. 

■ 16. Table 9 to subpart VVVVVV of 

part 63 is amended by: 

■ a. Revising the entry for 63.6(e)(1)(i) 

and (ii), (e)(3), and (f)(1); 

■ b. Removing the entry for 63.7(a)(2), 

(b), (d), (e)(1)–(e)(3); 

■ c. Adding new entries for 63.7(a)(2), 

(b), (d), (e)(2)–(e)(3) and 63.7(e)(1); 

■ d. Removing the entry for 63.8(a)(1), 

(a)(4), (b), (c)(1)–(c)(3), (f)(1)–(5); 

■ e. Adding new entries for 63.8(a)(1), 

(a)(4), (b), (c)(1)(ii), (c)(2)–(c)(3), (f)(1)– 

(5), 63.8(c)(1)(i), and 63.8(c)(1)(iii); 

■ f. Revising the entry for 63.8(c)(4); 

■ g. Removing the entry for 63.8(c)(6)– 

(c)(8), (d), (e), (f)(6); 

■ h. Adding new entries for 63.8(c)(6)– 

(c)(8), (d)(1)–(d)(2), (e), (f)(6) and 

63.8(d)(3); 

■ i. Revising the entry for 63.8(g)(5); 

■ j. Adding a new entry for 63.9(i); 

■ k. Removing the entry for 

63.10(b)(2)(i)–(b)(2)(v); 

■ l. Adding new entries for 

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

63.10(b)(2)(iii), and 63.10(b)(2)(iv) and 

(v); 

■ m. Removing the entry for 63.10(c)(7)– 

(c)(8), (c)(10)–(c)(12), (c)(15); 

■ n. Adding new entries for 63.10(c)(7)– 

(8), 63.10(c)(10), 63.10(c)(11), 

63.10(c)(12), and 63.10(c)(15); and 

■ o. Revising the entry for 63.10(d)(5). 

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Federal Register / Vol. 77, No. 246 / Friday, December 21, 2012 / Rules and Regulations 75763 

The additions and revisions read as 

follows: 

TABLE 9 TO SUBPART VVVVVV OF PART 63—APPLICABILITY OF GENERAL PROVISIONS TO SUBPART VVVVVV 

*******

Citation Subject 

Applies to 

subpart 

VVVVVV 

Explanation 

*******

63.6(e)(1)(i) and (ii), (e)(3), and 

(f)(1).

SSM Requirements ........................ No ................ See § 63.11495(d) for general duty requirement. 

*******

63.7(a)(2), (b), (d), (e)(2)–(e)(3) ...... Performance Testing Schedule, 

Notification of Performance Test, 

Performance Testing Facilities, 

and Conduct of Performance 

Tests.

Yes/No ......... Requirements apply if conducting test for metal HAP 

control; requirements in §§ 63.997(c)(1), (d), (e), 

and 63.999(a)(1) apply, as referenced in 

§ 63.11496(g), if conducting test for organic HAP 

or hydrogen halide and halogen HAP control device. 

63.7(e)(1) ......................................... Performance Testing ..................... No ................ See § 63.11496(f)(3)(ii) if conducting a test for metal 

HAP emissions. See §§ 63.11496(g) and 

63.997(e)(1) if conducting a test for continuous 

process vents or for hydrogen halide and halogen 

emissions. See §§ 63.11496(g) and 63.2460(c) if 

conducting a test for batch process vents. 

63.8(a)(1), (a)(4), (b), (c)(1)(ii), 

(c)(2)–(c)(3), (f)(1)–(5).

Monitoring Requirements ............... Yes ...............

63.8(c)(1)(i) ...................................... General Duty to Minimize Emissions and CMS Operation.No ................

63.8(c)(1)(iii) ..................................... Requirement to Develop SSM Plan 

for CMS.

No ................

*******

63.8(c)(4) .......................................... ........................................................ Yes ............... Only for CEMS. CPMS requirements in 40 CFR part 

63, subpart SS are referenced from § 63.11496. 

Requirements for COMS do not apply because 

subpart VVVVVV does not require COMS. 

*******

63.8(c)(6)–(c)(8), (d)(1)–(d)(2), (e), 

(f)(6).

........................................................ Yes ............... Requirements apply only if you use a continuous 

emission monitoring system (CEMS) to demonstrate compliance with the alternative standard 

in § 63.11496(e). 

63.8(d)(3) ......................................... Written Procedures for CMS ......... Yes ............... Requirement applies except for last sentence, which 

refers to an SSM plan. SSM plans are not required. 

*******

63.8(g)(5) ......................................... ........................................................ No ................ Data reduction requirements for CEMS are specified 

in § 63.2450(j)(4), as referenced from § 63.11496. 

CPMS requirements are specified in 40 CFR part 

63, subpart SS, as referenced from § 63.11496. 

*******

63.9(i) ............................................... ........................................................ Yes ...............

*******

63.10(b)(2)(i) .................................... Recordkeeping of Occurrence and 

Duration of Startups and Shutdowns.

No ................ See § 63.11501(c)(8) for recordkeeping of occurrence and duration of each startup and shutdown 

for continuous process vents that are subpart to 

Table 3 to this subpart. 

63.10(b)(2)(ii) ................................... Recordkeeping of Malfunctions ..... No ................ See § 63.11501(c)(1)(vii) and (viii) for recordkeeping 

of (1) date, time, duration, and volume of excess 

emissions and (2) actions taken during malfunction. 

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

63.10(b)(2)(iv) and (v) ...................... Actions Taken to Minimize Emissions During SSM.No ................

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75764 Federal Register / Vol. 77, No. 246 / Friday, December 21, 2012 / Rules and Regulations 

TABLE 9 TO SUBPART VVVVVV OF PART 63—APPLICABILITY OF GENERAL PROVISIONS TO SUBPART VVVVVV— 

Continued 

*******

Citation Subject 

Applies to 

subpart 

VVVVVV 

Explanation 

*******

63.10(c)(7)–(8) ................................. Additional Recordkeeping Requirements for CMS—Identifying 

Exceedances and Excess Emissions.

Yes ...............

63.10(c)(10) ...................................... Recordkeeping Nature and Cause 

of Malfunctions.

No ................ See § 63.11501(c)(1)(vii) and (viii) for malfunctions 

recordkeeping requirements. 

63.10(c)(11) ...................................... Recording Corrective Actions ........ No ................ See § 63.11501(c)(1)(vii) and (viii) for malfunctions 

recordkeeping requirements. 

63.10(c)(12) ...................................... ........................................................ Yes ...............

63.10(c)(15) ...................................... Use of SSM Plan ........................... No ................

*******

63.10(d)(5) ....................................... SSM Reports ................................. No ................ See § 63.11501(d)(8) for reporting requirements for 

malfunctions. 

*******

[FR Doc. 2012–30698 Filed 12–20–12; 8:45 am] 

BILLING CODE 6560–50–P 

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