The comments reflect interagency review of the draft rule under EOs 12866 and 13563.

They are subject to further policy review.

6560-50-P

E.O. 12866_CMAS 2060-AQ89 Reconsideration Proposal_20110614

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 63

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

RIN 2060-AQ89

National Emission Standards for Hazardous Air Pollutants for 

Chemical Manufacturing Area Sources

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule; notice of reconsideration of final rule.

SUMMARY: On October 29, 2009, EPA promulgated national emission 

standards for the control of hazardous air pollutants for nine 

area source categories in the chemical manufacturing sector: 

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. 

Following that action, the Administrator received a petition for 

reconsideration. In response to the petition, EPA is 

reconsidering and requesting comment on several provisions of 

the final rule. EPA is also proposing certain revisions to its 

approach for addressing malfunctions and taking comment on those 
The comments reflect interagency review of the draft rule under EOs 12866 and 13563.

They are subject to further policy review.

Page 2 of 93

revisions. EPA is further soliciting comment on the standards 

applicable during startup and shutdown periods, as set forth in 

the final rule. Additionally, EPA is proposing amendments and 

technical corrections to the final rule to clarify applicability 

and compliance issues raised by stakeholders subject to the 

final rule.

DATES: Comments. Comments must be received on or before

[INSERT DATE 60 DAYS FROM DATE OF PUBLICATION].

Public Hearing. If anyone contacts EPA requesting to speak at a 

public hearing by [INSERT DATE 10 DAYS FROM DATE OF

PUBLICATION], a public hearing will be held on [INSERT DATE 15 

DAYS FROM DATE OF PUBLICATION]. For further information on the 

public hearing and requests to speak, contact Ms. Janet Eck at 

(919) 541–7946 to verify that a hearing will be held. If a

public hearing is held, it will be held at 10 a.m. at the EPA’s

Environmental Research Center Auditorium, Research Triangle 

Park, North Carolina, or an alternate site nearby.

ADDRESSES: Submit your comments, identified by Docket ID No. 

EPA-HQ-OAR-2008-0334, by one of the following methods: 

• www.regulations.gov: Follow the on-line instructions 

for submitting comments.

• E-mail: a-and-r-Docket@epa.gov, Attention Docket ID 

No. EPA-HQ-OAR-2008-0334. 
The comments reflect interagency review of the draft rule under EOs 12866 and 13563.

They are subject to further policy review.

Page 3 of 93

• Fax: (202) 566-9744, Attention Docket ID No. EPA-HQOAR-2008-0334.

• Mail: U.S. Postal Service, send comments to: Air and 

Radiation Docket and Information Center, Environmental 

Protection Agency, Mailcode: 2822T, 1200 Pennsylvania 

Ave., NW, Washington, DC 20460, Attention Docket ID 

No. EPA-HQ-OAR-2008-0334. 

• Hand Delivery: In person or by Courier, deliver 

comments to: EPA Docket Center (2822T), Room 3334, 

1301 Constitution Ave., NW, Washington, DC 20004. Such 

deliveries are only accepted during the Docket’s 

normal hours of operation, and special arrangements 

should be made for deliveries of boxed information.

Instructions: Direct your comments to Docket ID No. EPA-HQ-OAR2008-0334. EPA’s policy is that all comments received will be 

included in the public docket without change and may be made 

available online at www.regulations.gov, including any personal 

information provided, unless the comment includes information 

claimed to be confidential business information (CBI) or other 

information whose disclosure is restricted by statute. Do not 

submit information that you consider to be CBI or otherwise 

protected through www.regulations.gov or e-mail. The 

www.regulations.gov website is an “anonymous access” system, 
The comments reflect interagency review of the draft rule under EOs 12866 and 13563.

They are subject to further policy review.

Page 4 of 93

which means EPA will not know your identity or contact 

information unless you provide it in the body of your comment. 

If you send an e-mail comment directly to EPA without going 

through www.regulations.gov, your e-mail address will be 

automatically captured and included as part of the comment that 

is placed in the public docket and made available on the 

Internet. If you submit an electronic comment, EPA recommends 

that you include your name and other contact information in the 

body of your comment and with any disk or CD-ROM you submit. If 

EPA cannot read your comment due to technical difficulties and 

cannot contact you for clarification, EPA may not be able to 

consider your comment. Electronic files should avoid the use of 

special characters, any form of encryption, and be free of any 

defects or viruses. For additional information about EPA’s 

public docket, visit the EPA Docket Center homepage at 

http://www.epa.gov/epahome/dockets.htm.

Docket: 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., CBI 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 
The comments reflect interagency review of the draft rule under EOs 12866 and 13563.

They are subject to further policy review.

Page 5 of 93

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, Refining and 

Chemicals Group (E143-01), Sector Policies and Programs 

Division, Office of Air Quality Planning and Standards, 

Environmental Protection Agency, Research Triangle Park, North 

Carolina 27711; telephone number: (919) 541-5372; fax number: 

(919) 541-0246; e-mail address: parsons.nick@epa.gov. 

SUPPLEMENTARY INFORMATION:

Organization of this Document. The following outline is 

provided to aid in locating information in this preamble. 

I. General Information

A. Does this notice of reconsideration apply to me?

B. What should I consider as I prepare my comments to EPA?

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

 information?

II. Background Information

III. Actions We Are Taking

IV. Discussion of Issues for Reconsideration

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
The comments reflect interagency review of the draft rule under EOs 12866 and 13563.

They are subject to further policy review.

Page 6 of 93

V. Requirements during Periods of Startup, Shutdown, and

Malfunctions (SSM)

VI. Requirements for Metal HAP Process Vents

A. Definition of Metal HAP Process Vent

B. Metal HAP Process Vent Standards

VII. Technical Corrections and Clarifications

VIII. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review and

Executive Order 13563: Improving Regulation and Regulatory

Review

B. Paperwork Reduction Act

C. Regulatory Flexibility Act

D. Unfunded Mandates Reform Act

E. Executive Order 13132: Federalism

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

A red-line version of the regulatory language that incorporates 

the changes in this action is available in the docket.

I. General Information

A. Does this notice of reconsideration apply to me?

The regulated categories and entities potentially affected 

by this action include:

Industry 

Category

NAICS 

Code1

Examples of Regulated Entities

Chemical 

Manufacturing

325 Chemical manufacturing area sources that 

use as feedstock, generate as byproduct, or 

produce as product, any of the hazardous 

air pollutants (HAP) subject to this 

subpart except for: (1) processes 

classified in NAICS Code 325222, 325314, or 

325413; (2) processes subject to standards 
The comments reflect interagency review of the draft rule under EOs 12866 and 13563.

They are subject to further policy review.

Page 7 of 93

for other listed area source categories2 in 

NAICS Code 325; (3) certain fabricating 

operations; (4) manufacture of photographic 

film, paper, and plate where material is 

coated or contains chemicals (but the 

manufacture of the photographic chemicals 

is regulated); and (5) manufacture of 

radioactive elements or isotopes, radium 

chloride, radium luminous compounds, 

strontium, and uranium.

1 North American Industry Classification System.

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

source standards apply are: Acrylic Fibers/Modacrylic Fibers 

Production, Chemical Preparation, Carbon Black, Chemical 

Manufacturing: Chromium Compounds, 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 reconsideration action, 

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.

B. What should I consider as I prepare my comments to EPA?

Submitting CBI. Do not submit information that you consider 

to be CBI electronically through http://www.regulations.gov or 
The comments reflect interagency review of the draft rule under EOs 12866 and 13563.

They are subject to further policy review.

Page 8 of 93

E-mail. Send or deliver information identified as CBI to only 

the following address: Mr. Nick Parsons, c/o OAQPS Document 

Control Officer (Room C404-02), U.S. Environmental Protection 

Agency, Research Triangle Park, North Carolina 27711, Attn:

Docket ID No. EPA-HQ-OAR-2008-0334. 

Clearly mark the part or all of the information that you 

claim to be CBI. For CBI information in a disk or CD-ROM that 

you mail to EPA, mark the outside of the disk or CD-ROM as CBI 

and then identify electronically within the disk or CD-ROM the 

specific information that is claimed as CBI. In addition to one 

complete version of the comment that includes information 

claimed as CBI, a copy of the comment that does not contain the 

information claimed as CBI must be submitted for inclusion in 

the public docket. If you submit a disk or CD-ROM that does not 

contain CBI, mark the outside of the disk or CD-ROM clearly that 

it does not contain CBI. Information marked as CBI will not be 

disclosed except in accordance with procedures set forth in 40 

CFR part 2.

If you have any questions about CBI or the procedures for 

claiming CBI, please consult the person identified in the FOR 

FURTHER INFORMATION CONTACT section.

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

information?
The comments reflect interagency review of the draft rule under EOs 12866 and 13563.

They are subject to further policy review.

Page 9 of 93

Docket. The docket number for this action and the final 

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

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

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

WWW through the Technology Transfer Network (TTN) 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. 

II. Background Information

Section 112(d) of the Clean Air Act (CAA) requires 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), EPA issued the NESHAP 

for the nine chemical manufacturing area source (CMAS) 

categories that were listed pursuant to CAA sections 112(c)(3) 
The comments reflect interagency review of the draft rule under EOs 12866 and 13563.

They are subject to further policy review.

Page 10 of 93

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. 

CAA section 112(k)(3)(B) directs 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. EPA implemented this provision in 1999 in the 

Integrated Urban Air Toxics Strategy, (64 FR 38715, July 19, 

1999) (Strategy). Specifically, in the Strategy, 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 EPA to list sufficient 

categories or subcategories of area sources to ensure that area 

sources representing 90 percent of the emissions of the 30 urban 

HAP are subject to regulation. EPA completed this requirement in 

2011 (76 FR 15308, March 21, 2011). The chemical manufacturing 

area source categories were listed to satisfy this requirement
The comments reflect interagency review of the draft rule under EOs 12866 and 13563.

They are subject to further policy review.

Page 11 of 93

for 15 of the 30 urban HAP.

1 Pursuant to CAA section 112(d)(5), 

the NESHAP reflect generally available control technologies or 

management practices (GACT). The NESHAP apply to each chemical 

manufacturing process unit (CMPU) that uses, generates, or 

produces any of the 15 urban HAP for which the area source 

categories were listed (collectively “chemical manufacturing 

urban HAP” or “Table 1 HAP”).

On February 12, 2010, following promulgation of the final 

rule, EPA received a petition for reconsideration from the 

American Chemistry Council (ACC) and the Society of Chemical 

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

this petition is provided in the docket (see Docket ID No. EPAHQ-OAR-2008-0334). Petitioners, pursuant to CAA section 

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

 

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

were listed are identified in table 1 of the final rule.
The comments reflect interagency review of the draft rule under EOs 12866 and 13563.

They are subject to further policy review.

Page 12 of 93

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.” The arguments in support of these

requests are provided in the petition and described briefly 

below. Petitioners also requested that 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, EPA sent a letter to Petitioners

informing them that EPA was granting the request for 

reconsideration on at least one issue 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 EPA considered the request for a stay 

to be moot because the due date for initial notifications had

already passed.
The comments reflect interagency review of the draft rule under EOs 12866 and 13563.

They are subject to further policy review.

Page 13 of 93

III. Actions We Are Taking

In this notice, we are granting reconsideration of, and 

requesting comment on, the six issues raised by Petitioners in 

their petition for reconsideration. Section IV of this preamble 

summarizes these issues and discusses our proposed responses to 

each issue. 

We are also proposing additional provisions related to 

malfunctions and requesting comment on the provisions in the 

final rule that address periods of startup and shutdown. We are 

also proposing amendments to, and taking comment on, the 

standards applicable to metal HAP process vents. Finally, we are

proposing technical corrections to certain applicability and 

compliance provisions in the final rule.

We are seeking public comment only on the issues 

specifically identified in this notice. We will not respond to 

any comments addressing other aspects of the final rule or any 

other related rulemakings.

IV. Discussion of Issues for Reconsideration 

This section of the preamble contains EPA’s basis for our 

proposed responses to the issues identified in the petition for 

reconsideration. We solicit comment on all proposed responses 

and revisions discussed in the following sections.

A. Title V Permitting Requirements
The comments reflect interagency review of the draft rule under EOs 12866 and 13563.

They are subject to further policy review.

Page 14 of 93

EPA proposed to exempt all chemical manufacturing area 

sources from the requirement to obtain a title V permit. In the 

final rule, in response to comments and after a full review of 

the record, EPA stated that it was not finalizing the exemption 

for major sources that became synthetic area sources by 

installing air pollution controls after 1990. Among other 

things, the Agency explained that we made the change, in part,

because we failed to consider the large number of such sources 

in proposing the exemption, and because these sources had 

uncontrolled emissions that made them much more like major 

sources. See 74 FR 56013, October 29, 2009. Petitioners maintain

that the proposed exemption of CMAS facilities from title V 

permitting requirements was fully and correctly justified in the 

preamble to the proposed CMAS rule. The Petitioners also claim:

• EPA’s assertion in the final rule that facilities that 

installed control equipment to become synthetic area 

sources are “generally larger and more sophisticated” than 

other chemical manufacturing area sources contradicts our 

earlier finding in the proposed rule that many of the 

facilities that would be affected by the CMAS rule are 

small entities without the resources to comply with 

permitting requirements. The Petitioners also state that 

approximately 87 percent of SOCMA members and 45 percent of 
The comments reflect interagency review of the draft rule under EOs 12866 and 13563.

They are subject to further policy review.

Page 15 of 93

ACC members are small businesses, which they cite as 

support for the proposed finding.

• The final rule fails to recognize that, in order for a 

facility to be treated as a synthetic area source due to 

the installation of controls, the facility has a legal duty 

to use the equipment because the control requirement must 

be Federally enforceable. Further, the Petitioners state 

that, “In order to have been approved by EPA, a state 

operating permit program that imposes a Federally 

enforceable requirement to use control equipment must 

provide the public with notice and an opportunity to 

comment on draft permits . . . and must also provide for 

emissions reporting and public availability of reported 

information.”

• The final rule is contrary to the decision in Alabama Power 

Co. v. EPA, which held that a source’s potential to emit is 

determined by its design capacity and the anticipated 

functioning of the air pollution control equipment. Thus,

the petitioners claim that whether a facility is a natural 

area source or a synthetic area source (due to either 

operational limits or the use of control devices) should 

not matter for regulatory purposes. 
The comments reflect interagency review of the draft rule under EOs 12866 and 13563.

They are subject to further policy review.

Page 16 of 93

• EPA argued in the area source rules for asphalt 

processing/asphalt roofing manufacturing, and paint and 

allied products manufacturing, that State-delegated 

programs are sufficient to assure compliance, and that it 

is not more difficult for citizens to enforce the NESHAP 

absent a title V permit. According to the Petitioners, 

these statements are equally, if not more, true for

chemical manufacturing synthetic area sources.

• Title V requirements will impose substantial transactional 

and compliance costs on subject facilities, and limit their 

flexibility to respond to market opportunities.

In conclusion, Petitioners suggest that we should exempt 

all chemical manufacturing area sources from the requirement to 

obtain a title V permit consistent with the proposed rule. We 

reviewed our rationale, as stated in the preamble to the final 

rule (74 FR 56013-56014) and summarized below, for the final 

title V permitting requirement for facilities that became 

synthetic area sources by virtue of installing air pollution 

control devices after 1990. We continue to believe that 

requiring title V for the sources identified in the final rule 

is appropriate; therefore, we are not proposing to exempt them 

from the requirement to obtain a title V permit. We are, 

however, making changes to clarify the applicability of the 
The comments reflect interagency review of the draft rule under EOs 12866 and 13563.

They are subject to further policy review.

Page 17 of 93

provision at issue, and we are proposing to add provisions that

inform sources when they must submit a title V permit 

application consistent with the title V regulations at 40 CFR 

part 70 and 40 CFR part 71.

Pursuant to section 502(a) of the CAA, the Administrator 

may “exempt one or more [area] source categories (in whole or in 

part) from the requirements of [title V] if the Administrator 

finds that compliance with such requirements is impracticable, 

infeasible, or unnecessarily burdensome . . . .” In December 

2005, in a national rulemaking, EPA interpreted the term 

“unnecessarily burdensome” in CAA section 502, and developed a 

four-factor balancing test for determining whether title V is 

unnecessarily burdensome for a particular area source category, 

such that an exemption from title V is appropriate. See 70 FR 

75320, December 19, 2005 (Exemption Rule). EPA evaluated the 

chemical manufacturing area source categories pursuant to the 

four-factor balancing test in the proposed rule, and determined 

that title V permitting was unnecessarily burdensome. 73 FR 

58371-58373. However, as stated above, EPA did not finalize the 

exemption for synthetic area sources that became area sources by 

installing air pollution controls after November 15, 1990, in 

part, because the Agency failed to consider the large number of 

such sources in proposing the exemption. 74 FR 56013. We 
The comments reflect interagency review of the draft rule under EOs 12866 and 13563.

They are subject to further policy review.

Page 18 of 93

explained the reasons for our oversight, and then concluded that 

title V was not unnecessarily burdensome, and provided a 

reasoned basis for that conclusion, as discussed below. 74 FR 

56013-56014. 

In the preamble to the final rule, we noted that the 

chemical manufacturing area source categories are different from 

other area source categories we have exempted because the 

categories include a large number of synthetic area sources 

(major sources that installed air pollution controls to become 

area sources) and the sources in the other categories generally 

have very low emissions of HAP before control. We then stated 

that at least 10 percent of the estimated 75 facilities that are 

synthetic area sources for HAP by virtue of installing controls 

have uncontrolled HAP emissions over 100 tpy. We also indicated 

that our information showed that many of the sources are located 

in cities, and often in close proximity to residential and 

commercial centers where large numbers of people live and work. 

We further stated that these synthetic area sources have 

significantly higher emissions potential when uncontrolled than 

the other sources in the chemical manufacturing area source 

categories, and that they are much more like the major sources 

of HAP subject to the Hazardous Organic Chemical Manufacturing 

NESHAP (HON) and the Miscellaneous Organic Chemical 
The comments reflect interagency review of the draft rule under EOs 12866 and 13563.

They are subject to further policy review.

Page 19 of 93

Manufacturing NESHAP (MON). For these reasons, and other reasons 

set forth 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. 

Contrary to the Petitioners’ first assertion, we do not 

believe that there is a conflict between our finding that many

CMAS facilities are small entities that lack the technical and 

financial resources to comply with title V, and our finding that 

CMAS facilities that are synthetic area sources due to the use 

of control devices are generally larger and more sophisticated 

than other facilities covered by the final rule. The fact that 

nearly all SOCMA members are small businesses does not, by 

itself, counter these findings. As we stated in the preamble to 

the final rule, an estimated 450 CMAS facilities have processes 

that would be subject to the rule. Of those, we estimate that 75 

are synthetic area sources by virtue of add on controls, and 

only 47 of these facilities are estimated to need a new title V 
The comments reflect interagency review of the draft rule under EOs 12866 and 13563.

They are subject to further policy review.

Page 20 of 93

permit because the remainder of the sources are already subject 

to title V for other reasons. Of the 47 sources that will 

require a new title V permit, we estimated that at least twothirds of these facilities are large entities. Based on 

information from SOCMA, approximately 270 member companies are 

small businesses. However, it is not clear how many of these 

companies have facilities that are subject to the CMAS rule, how 

many of the subject facilities are synthetic area sources for 

HAP emissions due to the use of control devices, or how many of 

the synthetic area sources for HAP emissions are subject to 

title V permitting requirements for other reasons. The 

information provided by Petitioner ACC is similarly vague on 

this issue.

The Petitioners also argue that the title V requirement is 

not appropriate because: (1) state operating permits that impose 

a Federally enforceable requirement must provide the public with 

notice and the opportunity to comment on the draft permit; (2) 

synthetic area source limits must be Federally enforceable 

pursuant to the definition of “potential to emit” at 40 CFR

63.2, and that it should not matter whether an area source is 

synthetic or natural; (3) EPA has determined in other area 

source rules that State-delegated programs and Federal 

enforceability of the standards is sufficient, and that 
The comments reflect interagency review of the draft rule under EOs 12866 and 13563.

They are subject to further policy review.

Page 21 of 93

determination is equally applicable to the area sources subject 

to title V in this rule; and (4) the requirement to obtain a 

title V permit will impose substantial compliance costs and 

reduce flexibility at the subject facilities. We are not 

proposing changes to the title V permitting requirement based on 

these arguments because we do not believe that they support a 

change in our position. First, while it is true that EPA 

regulations require Federal enforceability of limitations on 

potential to emit HAP, Petitioners did not provide any 

information as to the level of public participation required to 

obtain such limits and whether the level of participation was as 

comprehensive as that required pursuant to title V. Even if 

Petitioners could demonstrate that the level of public 

participation was comparable to that required under title V, our 

determination would not be altered on that issue alone because 

title V has other important requirements that may not apply to 

synthetic area sources that are not subject to title V (e.g., 

the requirement to annually certify compliance with all 

applicable requirements). Second, EPA disagrees that natural and 

synthetic area sources must be treated the same. As stated in 

the preamble to the final rule, “[synthetic area source] 

facilities are generally larger and more sophisticated than the 

natural area sources and sources that took operational limits to 
The comments reflect interagency review of the draft rule under EOs 12866 and 13563.

They are subject to further policy review.

Page 22 of 93

become area sources” (74 FR 56014). Third, we explained in the 

preamble to the final rule that the chemical manufacturing area 

sources are not similar to other area source categories that we 

have exempted because of the large number of synthetic area 

sources that installed add-on controls and the high volume of 

pre-control device HAP emissions from the chemical manufacturing 

area sources that added controls as compared with other area 

sources. As these synthetic area sources have essentially the 

same pre-control device HAP emissions potential as a major 

source chemical manufacturing facility, we believe the title V 

reporting will help insure that these control devices remain in 

place. Finally, Petitioners have provided no information that 

demonstrates that the cost of compliance for affected facilities 

will, in fact, significantly burden the sources subject to the 

title V requirement, or that such requirement will limit 

operational flexibility. We request comments and information 

that address these issues, including information and 

requirements that are required by state operating permit 

programs, so that we can more thoroughly evaluate applicability 

of title V for the identified sources.

As stated above, we are proposing changes to clarify 

applicability of the title V permit requirement to synthetic 

area sources that installed controls. The proposed changes more 
The comments reflect interagency review of the draft rule under EOs 12866 and 13563.

They are subject to further policy review.

Page 23 of 93

clearly identify the sources subject to title V, but we believe 

the changes will not alter the number of sources required to 

obtain a title V permit, if promulgated. We are also proposing 

to include language that informs sources subject to title V 

requirements when they must submit a title V permit application.

EPA is including these new provisions because, on March 14, 

2011, the Agency issued a final rule staying the requirement to 

obtain a title V permit until the final reconsideration rule is 

published in the Federal Register. 76 FR 13514. Because the stay 

will be lifted once the final rule is published in the Federal 

Register, we determined it was necessary to include an 

application deadline for those existing sources currently 

subject to the final rule to avoid confusion as to when title V 

permit applications would be due. The proposed application 

deadline for existing sources provides the full 12 months 

otherwise available to sources newly subject to title V pursuant 

to EPA regulations at 40 CFR part 70 and 40 CFR part 71. See 40 

CFR 70.5(a)(1) and 40 CFR 71.5(a)(1). We also propose to include 

a provision indicating the time available for new sources and 

existing sources that become subject to the rule after the 

effective date to submit a title V permit application.2 We 

solicit comment on these proposed changes to the final rule.

 

2 Existing sources may become subject to the NESHAP for CMAS after the 
The comments reflect interagency review of the draft rule under EOs 12866 and 13563.

They are subject to further policy review.

Page 24 of 93

Additionally, we are soliciting comment on an alternative 

that would require a facility to obtain a title V permit only if 

emissions from at least one process unit are subject to the 

final rule are (or have been) routed to the control device(s) 

that is required to maintain synthetic area source status at the 

facility. Such a limitation would be consistent with the 

standards in the final rule that are applicable only to the CMPU

that emit one of the chemical manufacturing urban HAP. 

Specifically, because the standards apply only to CMPU that meet 

the specific applicability criteria in the rule, we request 

comment on whether the title V permitting requirement should be 

applicable only if one or more of the CMPU that are subject to 

the final standards are controlled by the air pollution control 

equipment necessary for the facility to maintain area source 

status. 

We are requesting comment with supporting rationale on the 

requirement, as specified in this proposed rule and the 

alternative outlined above. We are also interested in 

information that would allow us to better estimate the burden

under the requirement in this proposed rule and the alternative. 

 

effective date of the standards because the final rule bases applicability on 

the use of chemical manufacturing urban HAP (Table 1 HAP) in a CMPU. 40 CFR 

63.11494. If a source begins using a Table 1 HAP after the effective date, 

the facility will be subject to the CMAS standards, and, if the source is a 

synthetic area source that installed controls, the source will be subject to 

title V.
The comments reflect interagency review of the draft rule under EOs 12866 and 13563.

They are subject to further policy review.

Page 25 of 93

For example, we are interested in results of any surveys that 

document: (1) the percentage and/or number of CMAS facilities 

that are synthetic area sources for HAP emissions because they 

use Federally-enforceable control devices; (2) the percentage 

and/or number of such facilities that are using the control 

devices to control emissions from at least one CMAS CMPU; (3) 

the financial burden of obtaining a title V permit compared to 

sales; and (4) the percentage and/or number of such facilities 

that are not already subject to title V requirements for other 

reasons. We are not taking comment on our decision in the final 

rule to exempt from title V chemical manufacturing areas sources 

that are natural area sources or that took operational limits to 

become area sources. 

B. Requirements when Other Rules Overlap with the Final Rule

Petitioners note that their comments on the proposed rule 

urged EPA to include provisions in the final rule that would 

minimize the burden associated with overlapping provisions 

between the CMAS rule and other rules. Specifically, they 

recommended that the CMAS rule include provisions to allow a 

facility subject to the CMAS rule and any other applicable area 

or major source rule to opt to comply with either, and noted 

that such an approach has been taken in many other rules. In 

response to those comments, we added provisions to address 
The comments reflect interagency review of the draft rule under EOs 12866 and 13563.

They are subject to further policy review.

Page 26 of 93

overlapping requirements in the final rule. See 40 CFR 63.11500. 

However, Petitioners consider the overlapping rule requirements

in the final rule, which specify that a facility may elect to 

comply with the most stringent provisions of the applicable 

rules as an alternative to complying fully with each rule

independently, to be “unprecedented, burdensome, and highly 

problematic.” According to the Petitioners, concerns with the 

alternative are that: (1) there can be uncertainty regarding 

which provision is more stringent; (2) facilities will be at 

risk that EPA or a delegated authority will subsequently 

disagree with the source’s determination; and (3) the effort 

necessary to construct a matrix of applicable requirements and 

determine which are the most stringent will exceed available 

staff and financial resources of many area sources. In addition, 

Petitioners state that complying in every respect with two 

overlapping rules is bound to involve substantial duplication,

and, in some cases, may not be possible due to conflicts between 

the two rules. For these reasons, Petitioners recommend that we 

either propose to eliminate the final language or request 

comment on it. 

We disagree with the Petitioners’ assertion that the 

requirements in the final rule are unprecedented and 

procedurally invalid. In the absence of the language in the 
The comments reflect interagency review of the draft rule under EOs 12866 and 13563.

They are subject to further policy review.

Page 27 of 93

final rule, a facility would be required to comply with all 

applicable requirements in both the CMAS rule and all other 

applicable rules, regardless of whether some equipment is 

subject to more than one rule. The final CMAS rule merely made 

explicit the implicit requirement to comply with all applicable 

standards. It was in response to Petitioners’ comments that the 

Agency provided an overlapping requirements alternative that 

allows a facility to identify and comply with only one set of 

requirements (i.e., the most stringent requirements in the 

overlapping rules). The alternative was intended as a means of 

reducing the compliance burden without diminishing the level of 

environmental protection provided by each rule.

We 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. Furthermore, as noted in the 

economic and control cost impacts analyses (see Docket ID No.

EPA-HQ-OAR-2008-0334-0079), we expect that most CMAS facilities 
The comments reflect interagency review of the draft rule under EOs 12866 and 13563.

They are subject to further policy review.

Page 28 of 93

will be subject to only the management practices in subpart 

VVVVVV. For those sources, we anticipate that it generally will 

not be difficult or burdensome to determine which requirements 

in subpart VVVVVV and an overlapping rule are the most 

stringent. For those sources that are unable to determine the 

more stringent requirement between subpart VVVVVV and an 

overlapping requirement, we believe it would be more appropriate 

to address those situations on a case-by-case basis.

We are granting reconsideration of the overlapping 

provisions requirement in 40 CFR 63.11500 of the final rule to 

allow comment on both the language in the final rule and any 

alternative suggestions. Specifically, we are interested in 

language that would reduce the compliance burden for the CMAS 

rule and any overlapping rules combined, yet assure that all 

requirements in the CMAS rule are met. We are also interested in 

specific examples of requirements in overlapping rules that 

conflict with requirements in the CMAS final rule.

C. Requirement to Conduct Direct and Proximal Leak Inspections

In the final rule, EPA revised the provision for 

inspections to require that facilities conduct a “direct and 

proximal (thorough) inspection of all areas of potential leak 

within the CMPU.” Petitioners object to the requirement in the 

final rule to conduct “direct and proximal (thorough)”
The comments reflect interagency review of the draft rule under EOs 12866 and 13563.

They are subject to further policy review.

Page 29 of 93

inspections because they believe it requires inspections without 

regard to safety or difficulty of access. Petitioners also note 

that areas that are difficult to inspect or unsafe to inspect or 

monitor are exempted from regular inspection requirements in 

other rules, and they point out that, in their comments on the 

proposed CMAS rule, they requested clarification that sensory 

inspections may be done from a distance when equipment is either 

inaccessible or unsafe for close visual inspection. Therefore, 

Petitioners maintain that the Agency should either propose to 

eliminate the direct and proximal inspection requirement or 

request comment on it. 

We have determined that the inspections required in the 

final rule require control that is more stringent than GACT

because we are not aware of any facility conducting direct and 

proximal inspections of all process vessels and equipment. For 

this reason, and to address Petitioners’ concerns, we are 

proposing to delete the requirement for direct and proximal 

inspections. However, we want to assure that sensory inspections 

be performed at distances such that the results are meaningful.

As a result, we are proposing that the amended rule would 

specify that a facility must conduct quarterly sensory 

inspections of all equipment and process vessels, provided these 

methods are capable of detecting leaks within the CMPU (i.e.,
The comments reflect interagency review of the draft rule under EOs 12866 and 13563.

They are subject to further policy review.

Page 30 of 93

the inspector is within sufficient proximity to the equipment 

that leaking equipment can be detected by sight, sound, or 

smell). We are not, however, proposing to exempt equipment that 

is difficult or unsafe to monitor. Rules that provide such 

exemptions do so because they require instrument monitoring that 

relies on being able to locate the instrument probe very close 

to the equipment being inspected (e.g., see 40 CFR part 63, 

subparts TT and UU). Sensory monitoring does not require 

intimate contact with each piece of equipment to be effective at 

identifying leaks. In addition, due to the wide variety of 

design and operating conditions throughout the source category, 

we also are not proposing criteria regarding an acceptable 

distance for inspection or the types of conditions under which 

the inspection may be conducted from a distance. Our intent is 

that each facility should conduct inspections as close as 

practical to the equipment to be able to detect leaks while also 

following procedures contained in site-specific safety plans. 

The proposed requirements would be consistent with sensory 

inspection requirements in 40 CFR part 63, subpart R. We request

comment on both the direct and proximal language in the final 

rule and these proposed revisions. 

D. Requirement for Covers or Lids on Process Vessels
The comments reflect interagency review of the draft rule under EOs 12866 and 13563.

They are subject to further policy review.

Page 31 of 93

We proposed to require process vessels in HAP service be 

closed “except when operator access is necessary.” 73 FR 58377 

(proposed 40 CFR 63.11495(a)). The final rule requires process 

vessels in HAP service to 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.” 40 CFR

63.11495(a)(1). Petitioners contend that compliance with this 

management practice requirement is impossible due to safety 

issues and because it does not consider the need to take 

material out of a vessel or to conduct maintenance. Petitioners

are particularly concerned that the requirement does not appear 

to allow openings for any type of maintenance, even after the 

process is shut down, and only trace levels of HAP are present. 

In subsequent correspondence, Petitioners suggest that their 

concerns would be resolved if we modify the rule so that the 

cover or lid requirement applies only when a process vessel is 

“in use” (which is a concept that they state can be easily 

applied), and clarify that “in use” does not include routine 

cleaning operations. See Docket ID No. EPA-HQ-OAR-2008-0334. 

Petitioners explain that the exclusion for cleaning is needed 

because the definition of a “chemical manufacturing process” 

includes routine cleaning operations, but vessels must be opened 

for cleaning. Therefore, the Petitioners state that we should 
The comments reflect interagency review of the draft rule under EOs 12866 and 13563.

They are subject to further policy review.

Page 32 of 93

either propose changes that would require the use of covers or 

lids only when subject process vessels are in use, or seek 

comments on the requirement as written in the final rule. 

We are granting reconsideration of the requirement to use a 

cover or lid on process vessels because the Petitioners comments 

indicate that the requirement can be interpreted as requiring 

control more stringent than we intended. The proposed rule

specified that “all process equipment in which organic HAP is 

used to process material must be covered when in use, and 

closure mechanisms on other openings and access points in 

process equipment must be in the closed position during 

operation, except when operator access is necessary.” 73 FR 

58377 (proposed 40 CFR 63.11495(a)). The intent of the 

requirement for covers in the proposed rule was to ensure that 

processes do not operate with open-top vessels. The purpose of 

the cover is to minimize emissions from surface evaporation, but 

not necessarily to have a tight seal between the cover and the 

vessel. For the final rule, we tried to clarify what “in use” 

and “operator access” meant by specifying that the cover (or 

lid) “must be in place at all times when the vessel contains 

HAP, except for material addition and sampling.” However, as the 

Petitioners have pointed out, the revised language can be 

interpreted as prohibiting removal of the cover, even when only 
The comments reflect interagency review of the draft rule under EOs 12866 and 13563.

They are subject to further policy review.

Page 33 of 93

traces of HAP remain in the vessel after it has been drained, 

which would prohibit opening to perform maintenance or manual

cleaning. Requiring use of the cover in this way is not GACT, 

and it was not our intent.

To address the Petitioners’ issues, we are proposing to 

revise 40 CFR 63.11495(a)(1) in the final rule to read as 

follows: “Each process vessel must be equipped with a cover or 

lid that must be closed whenever the vessel 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.” We note that allowing 

opening of a process vessel for material removal clarifies that 

process vessels, such as filter presses, may be opened in order 

to remove the filter cake. 

The proposed change also would exempt manual cleaning 

operations from the requirement to maintain closed covers and 

lids while a process vessel is in organic HAP or metal HAP

service. As the Petitioners noted, the definition of “chemical 

manufacturing process” is drawn from the definition of a 

“miscellaneous organic chemical manufacturing process” in 40 CFR 

63.2550 of the MON. That definition includes “routine cleaning 

operations,” which are described in the preamble to the final 

MON as “cleaning conducted within enclosed equipment between 
The comments reflect interagency review of the draft rule under EOs 12866 and 13563.

They are subject to further policy review.

Page 34 of 93

batches or between campaigns.” The MON preamble goes on to state 

that these operations “often consist of conducting solvent 

rinses through the equipment,” and emissions are characterized 

as part of the emissions from a batch process vent. See 68 FR 

63860, November 10, 2003. Contrary to Petitioner’s assertion, 

this type of cleaning was included as part of the process 

specifically because we considered the vessels to be “in use” 

while it is conducted. We also consider vessels to be in use 

when manual cleaning is performed. To clarify this point, we are 

proposing to revise the definition of “chemical manufacturing 

process” to specify that all cleaning activities are part of the 

process. However, because GACT does not include the use of 

closed covers and lids when performing manual cleaning, we are 

proposing two additional changes. First, we are proposing the 

change noted above to exempt manual cleaning operations from the 

requirement to maintain covers and lids in the closed position 

when the vessel is in organic HAP service or metal HAP service. 

Second, we are proposing to revise the definition of “in organic 

HAP service” to specify that 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 
The comments reflect interagency review of the draft rule under EOs 12866 and 13563.

They are subject to further policy review.

Page 35 of 93

cleaning has been completed. We expect emissions to be minimal 

during manual cleaning operations and when a process vessel is 

no longer in organic HAP service. We are not proposing any 

changes to 40 CFR 63.11494(a)(1) regarding maintenance 

activities because those activities would be conducted after the 

vessel has been drained (and possibly cleaned) and the vessel 

would no longer be in organic HAP service. 

We request comments on both the provisions, as specified in 

the final rule and the proposed changes. Specifically, we 

request comment on whether the proposed changes effectively 

address the issues raised by Petitioners, and clarify the 

requirements without introducing unintended consequences. We 

also request comment on whether a change like that proposed for 

the definition of “in organic HAP service” is needed for the 

definition of “in metal HAP service.” In particular, we request 

comment on whether a change is needed to address when vessels 

that contain metal HAP in the form of particulate are in use, 

and if so, we request information on the types of vessels for 

which the change is needed and recommendations on how the 

language in the definition could be structured. We are also 

requesting comment on possible changes to the requirements for 

cleaning that would include requirements for manual cleaning as 

well as for automated rinses through closed equipment. 
The comments reflect interagency review of the draft rule under EOs 12866 and 13563.

They are subject to further policy review.

Page 36 of 93

E. Requirement to Conduct Leak Inspections when Equipment is in 

HAP Service

Petitioners state that “the final rule can be read to imply 

that the equipment must be in HAP service when the inspection is 

conducted.” Petitioners note that this is in contrast to the 

proposed rule, which would have required quarterly inspections 

without specifying any other conditions. Petitioners stated that 

they did not comment on the proposed language because they

considered it to be reasonable; however, Petitioners contend 

that the apparent requirement in the final rule is problematic 

because batch processors who operate equipment in HAP service 

for short periods of time and have limited operating personnel 

may find it difficult to accomplish the required inspections 

during these narrow windows of time. Petitioners ask for 

clarification about whether this interpretation is correct, and,

if it is, Petitioners state that we should either propose 

reverting to the proposed language, or propose language allowing 

quarterly leak detection and repair inspections when the 

equipment is in volatile organic compound (VOC) service, not 

just HAP service.

Based on our review of this issue, we are proposing some 

editorial changes to 40 CFR 63.11495(a)(3) of the final rule to 

make the rule easier to read and understand. These changes are 
The comments reflect interagency review of the draft rule under EOs 12866 and 13563.

They are subject to further policy review.

Page 37 of 93

described in section VII of this preamble. However, we decided 

not to propose changes as suggested by the Petitioners because 

we have several concerns regarding how inspections can be 

conducted effectively when the process is not operating in HAP 

service. We request comment on both the specific concerns 

described below, as well as all other aspects of the 

requirements in the final rule related to the timing of 

inspections. First, because the configuration of process vessels 

and equipment likely changes from one CMPU to the next, we 

request comment on how sources would track which vessels and 

equipment to inspect in VOC service if we adopted Petitioners’ 

approach and whether this effort would negate any advantages of 

having flexibility to inspect at times other than when the 

subject CMPU is operating in organic HAP service. Second, 

process vessels are generally opened and cleaned when 

reconfiguring to create a different CMPU, and equipment 

connections are also often opened. Therefore, we also request 

comment discussing how inspections in VOC service for a 

different configuration would provide information that is 

relevant to determining whether there are leaks from the subject 

CMPU. Finally, if someone elects to conduct Method 21 monitoring 

rather than sensory inspections, the instrument reading obtained 

would be related to the concentration of organic compound in the 
The comments reflect interagency review of the draft rule under EOs 12866 and 13563.

They are subject to further policy review.

Page 38 of 93

fluid and the response factor of the instrument for that organic 

compound. Thus, we request comment on the need to specify 

criteria for the type of fluid that may be used when conducting 

inspections of vessels and equipment in VOC service (e.g., that 

the VOC concentration must be no less than the total organic 

compound concentration in the subject CMPU when in organic HAP 

service). We will consider adopting the Petitioners approach

after reconsideration if we can adequately address these issues. 

F. Applicability of the Family of Materials Concept

After proposal, the rule was revised in response to 

comments from petitioners and others that argued applicability 

should be established on a CMPU basis instead of facility-wide 

basis. Petitioners specifically suggested that EPA adopt the 

CMPU construct. We defined the CMPU in the final rule to include 

“all process vessels, equipment, and activities necessary to 

operate a chemical manufacturing process that produces a 

material or family of materials . . . . A CMPU consists of one 

or more unit operations and any associated recovery device.” 40 

CFR 63.11494(b). In adopting the CMPU construct, we determined 

that, to adequately characterize the CMPU, the applicability of 

the rule should extend to the “family of materials” because the 

CMPU concept is derived from the MON, and production of a family 

of materials is part of a single process unit in the MON. 
The comments reflect interagency review of the draft rule under EOs 12866 and 13563.

They are subject to further policy review.

Page 39 of 93

Furthermore, as in the MON, the CMAS rule specifies mass 

emission thresholds above which more stringent control of batch 

process vents is required. Petitioners state that it can be 

difficult under the CMAS rule to determine what constitutes a 

family of materials. Petitioners believe that the term “family 

of materials” effectively expands the scope of a CMPU to include 

equipment that is not part of a process that uses or produces 

Table 1 HAP. Petitioners contend that there is no policy 

justification for applying the CMAS rule this broadly. 

Therefore, Petitioners request that EPA interpret the “family of 

materials” term in such a way as to avoid regulating equipment 

that is not used to process a Table 1 HAP. Alternatively, 

Petitioners suggest that EPA propose eliminating the phrase “or 

a family of materials” from the rule. 

The definition of “family of materials” in the MON, and 

referenced in 40 CFR 63.11502 of the CMAS final rule, is as 

follows:

Family of materials means a grouping of materials with the 

same basic composition or the same basic end use or 

functionality produced using the same basic feedstocks with 

essentially identical HAP emission profiles (primary 

constituent and relative magnitude on a pound per pound 

basis) and manufacturing equipment configuration. Examples 
The comments reflect interagency review of the draft rule under EOs 12866 and 13563.

They are subject to further policy review.

Page 40 of 93

of families of materials include multiple grades of the 

same product or different variations of a product (e.g., 

blue, black, and red resins).

As in the MON, the intent of the family of materials 

concept in 40 CFR part 63, subpart VVVVVV is to ensure that 

sources will not be able to improperly avoid installation of 

add-on controls for batch process vent emissions by creating 

separate CMPU for production of essentially the same products 

(i.e., products produced from the same basic raw materials, with 

essentially identical HAP emissions, and using the same 

configuration of manufacturing equipment). For example, a series 

of polymer products that differ only in molecular weight or the 

type of non-HAP additive are considered a family of materials 

when the same primary raw materials are used, the same types of 

HAP are emitted, and the same configuration of production 

equipment is used. However, because the definition of family of 

materials in the final rule uses the term “essentially” 

identical HAP emission profiles, a family of materials 

potentially could include some products whose production does 

not involve Table 1 HAP. Therefore, to clarify the requirements, 

we are proposing to revise the definition of family of materials 

to state that only those products whose production involves 
The comments reflect interagency review of the draft rule under EOs 12866 and 13563.

They are subject to further policy review.

Page 41 of 93

emission of the same Table 1 HAP are to be considered part of a 

family of materials.

We also want to clarify the family of materials concept as 

it relates to production of isolated intermediates. A chemical 

manufacturing process is defined, in part, as “all equipment 

which collectively functions to produce a product or isolated 

intermediate.” An isolated intermediate is defined, in part, as 

“a product of a process that is stored before subsequent 

processing.” (As discussed in section VI of this preamble, we 

are proposing to add a definition of “isolated intermediate” 

that is consistent with the definition in the MON.) Even if an 

isolated intermediate and final product are produced using the 

same manufacturing equipment configuration and have the same 

Table 1 HAP emissions, they generally cannot be part of a family 

of materials because the definition specifies production of all 

products in the family must involve the same basic feedstocks. 

This condition would not be met if an isolated intermediate is 

used as a feedstock in later production of a final product. 

Furthermore, the definition of family of materials specified 

that all products in the family must have the same basic 

composition, end use, or functionality. This condition also 

would not be met in a situation where the isolated intermediate 

is transformed in the process to produce the final product. 
The comments reflect interagency review of the draft rule under EOs 12866 and 13563.

They are subject to further policy review.

Page 42 of 93

We are requesting comment on all aspects of the family of 

materials concept, including the proposed change. We are 

particularly interested in descriptions of situations where 

someone thinks it would apply, but should not, and we request

suggestions for additional changes that would make it easier to 

understand, apply, and enforce. We are not, however, accepting 

comments on the use of the CMPU as the basis for determining 

applicability of the CMAS final rule.

V. Requirements During Periods of Startup, Shutdown, and 

Malfunction (SSM)

During the comment period of the proposed rule, the United 

States Court of Appeals for the District of Columbia Circuit 

vacated two provisions in 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 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 
The comments reflect interagency review of the draft rule under EOs 12866 and 13563.

They are subject to further policy review.

Page 43 of 93

the otherwise applicable CAA section 112(d) emission standard 

during periods of SSM. 

The proposed CMAS rule contained references to the vacated 

provisions. Because the provisions were vacated, we removed the

references in the final rule, and, in their 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. 74 FR 56013. We declined 

to establish a different standard for malfunctions, as suggested 

by commenters. 74 FR 56033.

Further, as explained in the preamble to the final rule (74 

FR 56033), 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). Nothing in CAA section 112(d) or in case law 

requires that EPA anticipate and account for the innumerable 

types of potential malfunction events in setting emission 
The comments reflect interagency review of the draft rule under EOs 12866 and 13563.

They are subject to further policy review.

Page 44 of 93

standards. See 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.”)

Further, it is reasonable to interpret CAA section 112(d) as not 

requiring EPA to account for malfunctions in setting emissions 

standards.

We believe it would be impracticable to take malfunctions 

into account in setting CAA section 112(d) standards for 

chemical manufacturing area sources. As noted above, by 

definition, malfunctions are sudden and unexpected events, and 

it would be difficult to set a standard that takes into account 

the myriad different types of malfunctions that can occur across 

all sources in the categories. Moreover, malfunctions can vary 

in frequency, degree, and duration, further complicating 

standard setting. See, e.g., Sierra Club v EPA, 167 F. 3d 658, 

662 (D.C. Cir. 1999) (EPA typically has wide latitude in 

determining the extent of data-gathering necessary to solve a 
The comments reflect interagency review of the draft rule under EOs 12866 and 13563.

They are subject to further policy review.

Page 45 of 93

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.").

In the event that a source fails to comply with the 

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

malfunction event, EPA would determine an appropriate response 

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

source to minimize emissions during malfunction periods, 

including preventative and corrective actions, as well as root 

cause analyses to ascertain and rectify excess emissions. EPA 

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

the CAA section 112(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, EPA recognizes that even equipment that is 

properly designed and maintained can sometimes fail, and that 

such failure can sometimes cause an exceedance of the relevant 

emission standard or other violation. (See, e.g., State 

Implementation Plans: Policy Regarding Excessive Emissions 

During Malfunctions, Startup, and Shutdown (Sept. 20, 1999); 

Policy on Excess Emissions During Startup, Shutdown, 

Maintenance, and Malfunctions (Feb. 15, 1983)). EPA is,
The comments reflect interagency review of the draft rule under EOs 12866 and 13563.

They are subject to further policy review.

Page 46 of 93

therefore, proposing to add to the final rule an affirmative 

defense to civil penalties for exceedances of emission limits or 

other violations of applicable standards that are caused by 

malfunctions. See 40 CFR 63.11502 (defining “affirmative 

defense” to mean, in the context of an enforcement proceeding, a 

response or defense put forward by a defendant, regarding which 

the defendant has the burden of proof, and the merits of which 

are independently and objectively evaluated in a judicial or 

administrative proceeding). We also are proposing 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 an exceedance of the emission limit 

meets the narrow definition of malfunction in 40 CFR 63.2 

(sudden, infrequent, not reasonable preventable and not caused 

by poor maintenance and or careless operation). For example, to 

successfully assert the affirmative defense, the source must 

prove by a preponderance of the evidence that excess emissions 

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

of air pollution control and monitoring equipment, process 

equipment, or a process to operate in a normal or usual 
The comments reflect interagency review of the draft rule under EOs 12866 and 13563.

They are subject to further policy review.

Page 47 of 93

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 the applicable emission 

limitations were being exceeded...” and that “[a]ll possible steps 

were taken to minimize the impact of the excess emissions on 

ambient air quality, the environment and human health....” In any 

judicial or administrative proceeding, the Administrator may 

challenge the assertion of the affirmative defense, and, if the 

respondent has not met its burden of proving all of the 

requirements in the affirmative defense, appropriate penalties 

may be assessed in accordance with section 113 of the CAA (see 

also 40 CFR 22.77).

EPA included an affirmative defense in the final rule in an 

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

regulation, to ensure adequate compliance while simultaneously 

recognizing that despite the most diligent of efforts, emission 

limits may be exceeded under circumstances beyond the control of 

the source. 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 
The comments reflect interagency review of the draft rule under EOs 12866 and 13563.

They are subject to further policy review.

Page 48 of 93

“emission limitation and emission standard”). See, e.g., Sierra 

Club v. EPA, 551 F.3d 1019, 1021 (D.C. Cir. 2008). Thus, EPA is 

required to ensure that section 112 emissions limitations are 

continuous. The affirmative defense for malfunction events meets 

this requirement by ensuring that even where there is a 

malfunction, the emission limitation is still enforceable 

through injunctive relief. While “continuous” limitations, on 

the one hand, are required, there is also caselaw indicating 

that in many situations it is appropriate for EPA to account for 

the practical realities of technology. For example, in Essex 

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

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

section 111 “variant provisions” such as provisions allowing for 

upsets during startup, shutdown, and equipment malfunction 

“appear necessary to preserve the reasonableness of the 

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

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

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

(D.C.Cir. 1973). Though intervening caselaw such as Sierra Club

v. EPA and the CAA 1977 amendments undermine the relevance of 

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

incorporates some level of flexibility is reasonable. The 

affirmative defense simply provides for a defense to civil 
The comments reflect interagency review of the draft rule under EOs 12866 and 13563.

They are subject to further policy review.

Page 49 of 93

penalties for excess emissions that are proven to be beyond the 

control of the source. By incorporating an affirmative defense, 

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

Water Act setting, the Ninth Circuit required this type of 

formalized approach when regulating “upsets beyond the control 

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

1272-73 (9th Cir. 1977). But see, Weyerhaeuser Co. v. Costle, 590 

F.2d 1011, 1057-58 (D.C. Cir. 1978) (holding that an informal 

approach is adequate). The affirmative defense provisions give 

the EPA the flexibility to both ensure that its emission 

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

and account for unplanned upsets and thus support the 

reasonableness of the standard as a whole.

EPA has attempted to ensure that we have not incorporated 

into proposed regulatory language any provisions that are 

inappropriate, unnecessary, or redundant in the absence of the 

SSM exemption. We are specifically seeking comment on whether 

there are any such provisions that we have inadvertently 

incorporated or overlooked. We are also seeking comment on the 

inclusion of the affirmative defense provisions. Finally, we 

solicit comment on provisions in the final rule applicable to 

startup and shutdown periods for continuous and batch process 

vents.
The comments reflect interagency review of the draft rule under EOs 12866 and 13563.

They are subject to further policy review.

Page 50 of 93

In addition to the affirmative defense provisions described 

above, we are also proposing 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 

proposing to add 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 proposing to add 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 proposing to add 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 proposed 

changes in the text of the rule, entries for 40 CFR 

63.6(e)(1)(i), 63.10(b)(2), and 63.10(d)(5) also would be 

changed to reference the new paragraphs in 40 CFR 63.11495(d), 

63.11501(c), and 63.11501(d). Finally, we are proposing to 

revise Table 9 to state that the performance testing 

requirements in 40 CFR 63.7(e)(1) do not apply. The comments to 
The comments reflect interagency review of the draft rule under EOs 12866 and 13563.

They are subject to further policy review.

Page 51 of 93

Table 9 for that provision identify the location of the 

applicable performance testing requirements for CMAS sources.

VI. Requirements for Metal HAP Process Vents

A. Definition of Metal HAP Process Vent

A metal HAP process vent is defined in the final rule as 

“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.” We are requesting comment on the 

applicability of this definition to all types of equipment from 

which metal HAP are emitted. We are particularly interested in 

comments on how well it applies to chemical manufacturing 

processes in comparison to the definitions for batch and 

continuous process vents, which have been used in HON, MON, and 

several other MACT standards for chemical manufacturing.

B. Metal HAP Process Vent Standards

Since promulgation, we determined that the final rule does 

not clearly explain how the rule applies when the Table 1 metal 

HAP are emitted as a gaseous organo-metallic compound along with 

other organic compounds that are routed to an incinerator for 

control. To clarify our intent, the following discussion 

summarizes the requirements in the final rule for all types of 

metal HAP compounds, including organo-metallic compounds. It 

also identifies potential limitations in these requirements and 
The comments reflect interagency review of the draft rule under EOs 12866 and 13563.

They are subject to further policy review.

Page 52 of 93

requests information to enable better characterization of 

affected CMPU.

Table 4 to 40 CFR part 63, subpart VVVVVV specifies that an 

owner or operator of an affected CMPU with metal HAP emissions 

equal to or greater than 400 pounds per year (lb/yr) must reduce 

the metal HAP emissions by at least 95 percent. The emission 

limit specified in Table 4 to subpart VVVVVV does not 

differentiate between compounds that are emitted as particulate 

and compounds that are emitted as vapor or as liquid droplets, 

or between organic and inorganic compounds. All Table 1 metal 

HAP compounds in all phases are subject. Thus, in the case of a

CMPU that uses an organo-metallic Table 1 metal HAP compound, 

both the 400 lb/yr threshold and 95-percent emission limit 

apply. Although combustion would change the type of Table 1 

metal HAP compound(s) emitted, it would not destroy the metal 

itself and likely would not reduce the mass by 95 percent. Thus, 

if the uncontrolled metal HAP emissions are greater than 400 

lb/yr, additional control of the metal HAP would be required 

either upstream or downstream of the incinerator.

To demonstrate initial compliance, the owner or operator 

must conduct either a performance test or an engineering 

assessment (except new sources using a baghouse as a control 

device are required to conduct a performance test). If the owner 
The comments reflect interagency review of the draft rule under EOs 12866 and 13563.

They are subject to further policy review.

Page 53 of 93

or operator elects to conduct a performance test for a CMPU from 

which the metal HAP are emitted as a vapor, then the test must

be conducted using Method 29 because the other specified 

alternative, Method 5, is not applicable. To demonstrate ongoing 

compliance, the owner or operator must develop and operate in 

accordance with a site-specific monitoring plan. This 

requirement applies for any type of control device used to 

control metal HAP emissions.

Although the metal HAP requirements apply to all Table 1 

metal HAP as described above, the 400 lb/yr threshold was 

developed, primarily, based on information from CMPU where the 

metal HAP is emitted as particulate. In general, these 

facilities processed ores and/or manufactured solid materials 

such as pigments, catalysts, or manganese dioxide. Some metal 

HAP at certain steps in some processes are liquids or dissolved 

in solvents, but these metal HAP compounds typically have very 

low vapor pressures and emissions; the bulk of the metal HAP 

emissions are particulates from operations such as grinding, 

mixing, calcining, drying, and packaging. In addition, the 

control cost impacts were developed assuming the metal HAP are 

emitted in the form of particulate (See Docket ID No. EPA-HQOAR-2008-0334-0005). Therefore, we are requesting comment on 

whether there are reasons GACT for processes that emit gaseous 
The comments reflect interagency review of the draft rule under EOs 12866 and 13563.

They are subject to further policy review.

Page 54 of 93

Table 1 metal HAP should be different from GACT, as specified in 

the final rule. We are particularly interested in information on 

the types of processes that emit gaseous Table 1 metal HAP, the 

range in uncontrolled emissions from such processes, the types 

of emission points (i.e., are these emission points consistent 

with the definition of “metal HAP process vent”), the types of 

control devices used to control such emissions, and whether 

those processes also emit particulate metal HAP.

VII. Technical Corrections and Clarifications

We are proposing several technical corrections. These 

amendments are being proposed to correct inaccuracies and 

oversights that were promulgated in the final rule. These 

proposed changes are described in Table 1 of this preamble. We 

request comment on all of these proposed changes.

Table 1. 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 proposing several changes to 

this paragraph. First, we are proposing 

to clarify that the 0.1-percent and 

1.0-percent concentration thresholds 

are on a mass basis of the compound 

containing the Table 1 HAP. Second, we 

are proposing to clarify that all Table 

1 HAP, except for quinoline and 

manganese compounds, are considered 

carcinogenic, probably carcinogenic, or 

possibly carcinogenic. Therefore, the

concentration threshold of 1.0 weight 
The comments reflect interagency review of the draft rule under EOs 12866 and 13563.

They are subject to further policy review.

Page 55 of 93

percent applies only to quinoline and 

manganese compounds, and the threshold 

of 0.1 weight percent applies to all 

other Table 1 HAP. Third, because it is 

not clear under the final rule whether 

an emission stream that contains a 

Table 1 HAP as a gaseous byproduct is a 

“process fluid,” we are proposing 

changes to clarify applicability of 

CMPU that generate a Table 1 HAP 

byproduct. If Table 1 HAP are generated 

as byproduct, the proposed 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 collective 

concentration of these compounds in any 

liquid stream is greater than 0.1 

percent by weight. In addition, the 

proposed changes also specify that a 

CMPU is subject if the collective 

concentration of these Table 1 HAP 

exceeds 50 parts per million by volume

in any process vent stream. This 

threshold was specified because this 

concentration defines a process vent,

and such emissions streams are subject

to control. Finally, we are proposing 

to consolidate paragraphs (a)(1) and 

(3) to eliminate redundancy. 

40 CFR 

63.11494(c)(1)(vii)

We are proposing to add a new paragraph 

that would list 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 
The comments reflect interagency review of the draft rule under EOs 12866 and 13563.

They are subject to further policy review.

Page 56 of 93

part 63, subpart PPPPPP – NESHAP for 

Lead Acid Battery Manufacturing Area 

Sources. 

40 CFR 63.11494(d) We are proposing to clarify 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. We are proposing this 

change based on the fact that most 

metal HAP compounds have a very low 

vapor pressure and would not volatilize 

from wastewater or cooling water. 

However, given our discussion of 

organo-metallic compounds in section 

VI.B of this preamble, we are also 

requesting comment on whether this 

change should be limited to only 

certain types or classes of metal HAP 

compounds for wastewater systems, heat 

exchange systems, or both types of 

systems.

40 CFR 

63.11495(a)(3)

To clarify and improve the readability 

of this section, we are proposing to 

split it into an introductory section 

with five subsections. One sentence 

that contains two concepts also would 

be split into two separate sentences. 

The requirements, however, have not 

changed.

40 CFR 

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

We are proposing to edit this paragraph 

to add the acronym “CMS.”

40 CFR 

63.11496(f)(3)(ii)

We are proposing to edit the first 

sentence in this paragraph to remove 

the unnecessary word “report.”

40 CFR 

63.11496(f)(3)(ii)

To demonstrate initial compliance with 

the emissions limit for HAP metals, 40 

CFR 63.11496(f)(3)(ii) in the final 

rule requires either a performance test 

or engineering assessment. This 

paragraph in the final rule also 

specifies that a performance test must 

be conducted under representative 
The comments reflect interagency review of the draft rule under EOs 12866 and 13563.

They are subject to further policy review.

Page 57 of 93

process operating conditions, but it 

does not specify conditions under which 

an engineering assessment must be 

conducted. To correct this oversight, 

and maintain consistency with the 

conditions under which performance 

testing must be conducted, we are 

proposing to modify 40 CFR 

63.11496(f)(3)(ii) to clarify 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 

63.11498(a)(2), 

63.11502(b), and 

Table 6

Other rules, such as the HON, specify 

that discharge of wastewater to a 

Resource Conservation and Recovery Act 

(RCRA)-permitted underground injection 

well is a treatment (i.e., control) 

option for wastewater streams. We 

intended to include the same option in 

40 CFR part 63, subpart VVVVVV. 

However, “wastewater treatment” is 

defined in 40 CFR 63.11502 as 

procedures that remove or reduce HAP, 

which does not clearly include 

discharge to an underground injection 

well. To clarify this point, we are 

proposing to add a definition of 

“hazardous waste treatment” in 40 CFR 

63.11502(b) to mean treatment in a 

RCRA-permitted incinerator, process 

heater, boiler, or underground 

injection well. The specific language 

in the proposed definition is 

consistent with 40 CFR 63.138(h) of the 

HON wastewater provisions. We are also 

proposing 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 
The comments reflect interagency review of the draft rule under EOs 12866 and 13563.

They are subject to further policy review.

Page 58 of 93

be edited to use the new term 

“hazardous waste treatment.” The 

proposed 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 

63.11501(c)(4)(i)

We are proposing to replace the 

incorrect word “dimension” with the 

correct word “dimensions.”

40 CFR 63.11502(a) We are proposing to insert a reference 

to the definition of the term “isolated 

intermediate” in 40 CFR 63.2550 of the 

MON because this term is used in the 

definitions of several other terms in 

40 CFR 63.11502.

40 CFR 63.11502(b) We are proposing to modify the 

definition of “product” to remove 

“isolated intermediates” from the list 

of materials that are not considered 

products. This change would make the 

definition of product consistent with 

the definitions of chemical 

manufacturing process and isolated 

intermediate. A chemical manufacturing 

process is defined as all equipment 

which collectively functions to produce 

a product or isolated intermediate. 

Isolated intermediate is defined as a 

product of a process that is stored 

before subsequent processing.

40 CFR 63.11502(b) We are proposing to add a definition 

for the term “uncontrolled emissions” 

because the control threshold for batch 

process vents and metal HAP process 

vents in 40 CFR 63.11496(a) and (f) use 

this term. The proposed definition 

would read as follows: “Uncontrolled 

emissions means process vent emissions 

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 
The comments reflect interagency review of the draft rule under EOs 12866 and 13563.

They are subject to further policy review.

Page 59 of 93

atmosphere.”

VIII. 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, 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 rule have 

been submitted for approval to the Office of Management and 

Budget (OMB) under the Paperwork Reduction Act, 44 U.S.C. 3501 

et seq. The Information Collection Request (ICR) document 

prepared by EPA has been assigned EPA ICR number 2323.01. 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 
The comments reflect interagency review of the draft rule under EOs 12866 and 13563.

They are subject to further policy review.

Page 60 of 93

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

all operators subject to national emission standards. These 

recordkeeping and reporting requirements are specifically 

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

information submitted to EPA pursuant to the recordkeeping and 

reporting requirements for which a claim of confidentiality is 

made is safeguarded according to Agency policies set forth in 40 

CFR part 2, subpart B.

For this proposed rule, EPA is adding affirmative defense 

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

an estimate of the relative magnitude of the burden associated 

with an assertion of the affirmative defense position adopted by 

a source, EPA has provided administrative adjustments to this 

ICR to show what the notification, recordkeeping and reporting 

requirements associated with the assertion of the affirmative 

defense might entail. EPA’s estimate for the required 

notification, reports and records for any individual incident, 

including the root cause analysis, totals $3,141 and is based on 

the time and effort required of a source to review relevant 

data, interview plant employees, and document the events 

surrounding a malfunction that has caused an exceedance of an 

emissions limit. The estimate also includes time to produce and 

retain the record and reports for submission to EPA. EPA 
The comments reflect interagency review of the draft rule under EOs 12866 and 13563.

They are subject to further policy review.

Page 61 of 93

provides this illustrative estimate of this burden because these 

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

source chooses to take advantage of the affirmative defense.

Given the variety of circumstances under which malfunctions 

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

maintenance practices, we cannot reliably predict the severity 

and frequency of malfunction-related excess emissions events for 

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

basis currently for estimating the number of malfunctions that 

would qualify for an affirmative defense. Current historical 

records would be an inappropriate basis, as source owners or 

operators previously operated their facilities in recognition 

that they were exempt from the requirement to comply with

emissions standards during malfunctions. Of the number of excess 

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 subpart VVVVVV over the 
The comments reflect interagency review of the draft rule under EOs 12866 and 13563.

They are subject to further policy review.

Page 62 of 93

3-year period covered by this ICR. We expect to gather 

information on such events in the future and will revise this 

estimate as better information becomes available. The annual 

monitoring, reporting, and recordkeeping burden for this 

collection (averaged over the first 3 years after the effective 

date of the standards) for these amendments to subpart VVVVVV is 

estimated to be $3,141 per year. This includes 30 labor hours 

per year at a total labor cost of $3,141 per year. There is no 

change in annual burden to the Federal government for these 

amendments.

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

required to respond to, a collection of information unless it 

displays a currently valid OMB control number. The OMB control 

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

part 9. When these ICRs are approved by OMB, the Agency will 

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

Register to display the OMB control numbers for the approved 

information collection requirements contained in the final 

rules.

To comment on the Agency's need for this information, the 

accuracy of the provided burden estimates, and any suggested 

methods for minimizing respondent burden, EPA has established a 

public docket for this rule, which includes this ICR, under 
The comments reflect interagency review of the draft rule under EOs 12866 and 13563.

They are subject to further policy review.

Page 63 of 93

Docket ID number EPA-HQ-OAR-2008-0334. Submit any comments 

related to the ICR to EPA and OMB. See the ADDRESSES section at 

the beginning of this notice for where to submit comments to 

EPA. Send comments to OMB at the Office of Information and 

Regulatory Affairs, Office of Management and Budget, 725 17th 

Street, NW, Washington, DC 20503, Attention: Desk Office for 

EPA. Since OMB is required to make a decision concerning the ICR 

between 30 and 60 days after [INSERT THE DATE OF PUBLICATION OF 

THIS PROPOSED RULE IN THE FEDERAL REGISTER], a comment to OMB is 

best assured of having its full effect if OMB receives it by 

[INSERT THE DATE 30 DAYS AFTER THE DATE OF PUBLICATION IN THE 

FEDERAL REGISTER]. The final rule will respond to any OMB or 

public comments on the information collection requirements 

contained in this proposal.

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. 
The comments reflect interagency review of the draft rule under EOs 12866 and 13563.

They are subject to further policy review.

Page 64 of 93

For purposes of assessing the impacts of this proposed rule

on small entities, small entity is defined as: (1) a small 

business as defined by the Small Business Administration’s

regulations at 13 CFR 121.201(less than 500, 750, or 1,000 

employees, depending on the specific NAICS Code under 

subcategory 325); (2) a small governmental jurisdiction that is 

a government of a city, county, town, school district or special 

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

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

independently owned and operated and is not dominant in its 

field.

After considering the economic impacts of this proposed 

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

a significant economic impact on a substantial number of small 

entities. This proposed rule will not impose any new 

requirements on any small entities because it does not impose 

any additional regulatory requirements beyond those already 

promulgated in the final rule. We continue to be interested in 

the potential impacts of the proposed rule on small entities and 

welcome comments on issues related to such impacts.

D. Unfunded Mandates Reform Act

This action contains no Federal mandates under the 

provisions of Title II of the Unfunded Mandates Reform Act of 
The comments reflect interagency review of the draft rule under EOs 12866 and 13563.

They are subject to further policy review.

Page 65 of 93

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

governments or the private sector. This proposed rule imposes no 

enforceable duty on any State, local, or tribal governments or 

the private sector. Therefore, this proposed 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 proposes 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 proposed 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.

In the spirit of Executive Order 13132, and consistent with 

EPA policy to promote communications between EPA and State and 
The comments reflect interagency review of the draft rule under EOs 12866 and 13563.

They are subject to further policy review.

Page 66 of 93

local governments, EPA specifically solicits comment on this 

proposed action from State and local officials.

F. Executive Order 13175: Consultation and Coordination with 

Indian Tribal Governments

This proposed 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 proposed rule.

EPA specifically solicits additional comment on this 

proposed action from tribal officials.

G. Executive Order 13045: Protection of Children from 

Environmental Health Risks and Safety Risks

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 proposed rule is not subject to 

Executive Order 13045 because it is based solely on technology 

performance. 
The comments reflect interagency review of the draft rule under EOs 12866 and 13563.

They are subject to further policy review.

Page 67 of 93

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 EPA to use voluntary consensus 

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

would be inconsistent with applicable law or otherwise 

impractical. VCS are technical standards (e.g., materials 

specifications, test methods, sampling procedures, and business

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

directs EPA to provide Congress, through OMB, explanations when 

the Agency decides not use available and applicable VCS.

This proposed rulemaking does not involve technical 

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

J. Executive Order 12898: Federal Actions to Address 

Environmental Justice in Minority Populations and Low-Income 

Populations
The comments reflect interagency review of the draft rule under EOs 12866 and 13563.

They are subject to further policy review.

Page 68 of 93

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

establishes Federal executive policy on environmental justice. 

Its main provision directs Federal agencies, to the greatest 

extent practicable and permitted by law, to make environmental 

justice part of their mission by identifying and addressing, as 

appropriate, disproportionately high and adverse human health or 

environmental effects of their programs, policies, and 

activities on minority populations and low-income populations in 

the United States.

EPA has determined that this proposed rule will not have 

disproportionately high and adverse human health or 

environmental effects on minority or low-income populations

because it increases 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. The 

amendments do not relax the control measures on sources 

regulated by the rules, and, therefore, will not cause emissions 

increases from these sources.
The comments reflect interagency review of the draft rule under EOs 12866 and 13563.

They are subject to further policy review.

National Emission Standards for Hazardous Air Pollutants for 

Chemical Manufacturing Area Sources--Page 69 of 93

List of Subjects in 40 CFR Part 63

Environmental protection, Administrative practice and 

procedure, Air pollution control, Hazardous substances.

Dated:

Lisa P. Jackson,

Administrator.
The comments reflect interagency review of the draft rule under EOs 12866 and 13563.

They are subject to further policy review.

Page 70 of 93

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

part 63 of the Code of Federal Regulations is proposed to be 

amended as follows:

PART 63--[AMENDED]

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

follows:

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

Subpart VVVVVV—[AMENDED]

2. Section 63.11494 is amended by:

a. Revising paragraph (a);

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

c. Revising the last sentence in paragraph (d); and 

d. Revising paragraph (e) 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.
The comments reflect interagency review of the draft rule under EOs 12866 and 13563.

They are subject to further policy review.

Page 71 of 93

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

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

quinoline and/or manganese compounds at a concentration greater 

than 1.0 percent by weight, or other Table 1 HAP at a collective 

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 compounds other than 

quinoline are generated as byproduct and are present in the CMPU 

in any liquid stream (process or waste) at a collective 

concentration greater than 0.1 percent by weight.

(iv) Hydrazine and/or any Table 1 organic compounds are 

generated as byproduct and are present in the CMPU in any 
The comments reflect interagency review of the draft rule under EOs 12866 and 13563.

They are subject to further policy review.

Page 72 of 93

process vent stream at a collective concentration greater than 

50 parts per million by volume (ppmv).

(v) Hydrazine or any Table 1 organic compound 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 source subject to this subpart that installed a 

Federally-enforceable control device on a CMPU by the first 

substantive compliance date of an otherwise applicable MACT 

standard, and, as a result, became an area source under 40 CFR 

part 63, is required to obtain a permit under 40 CFR part 70 or 

40 CFR part 71. For existing sources subject to title V, as a 

result of this rule, a complete title V permit application must 
The comments reflect interagency review of the draft rule under EOs 12866 and 13563.

They are subject to further policy review.

Page 73 of 93

be submitted no later than 12 months after date of publication 

of the final rule amendments in the Federal Register if the 

source is subject to this rule on that date. New sources and 

existing sources that become subject to this rule after date of 

publication of the final rule amendments in the Federal Register

must submit a complete title V permit application no later than 

12 months after becoming subject to 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.

* * * * *

3. Section 63.11495 is amended by:

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

b. Adding paragraph (c) heading; and 

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

§63.11495 What are the management practices and other 

requirements?

(a) * * *

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

lid that must be closed at all times when it is in organic HAP 
The comments reflect interagency review of the draft rule under EOs 12866 and 13563.

They are subject to further policy review.

Page 74 of 93

service or metal HAP service, except for manual operations that 

require access, such as material addition and removal, 

inspection, sampling, and cleaning.

* * * * *

(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.

(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 
The comments reflect interagency review of the draft rule under EOs 12866 and 13563.

They are subject to further policy review.

Page 75 of 93

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. * * *

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

maintain any affected source, including associated air pollution 

control equipment and monitoring equipment, in a manner 

consistent with safety and good air pollution control practices 

for minimizing emissions. Determination of whether such 
The comments reflect interagency review of the draft rule under EOs 12866 and 13563.

They are subject to further policy review.

Page 76 of 93

operation and maintenance procedures are being used will be 

based on information available to the Administrator, which may 

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

operation and maintenance procedures, review of operation and 

maintenance records, and inspection of the source.

4. Section 63.11496 is amended by revising paragraphs

(f)(3)(i)(C), (f)(3)(ii) and (g)(1) to read as follows:

§63.11496 What are the standards and compliance requirements for 

process vents?

* * * * *

(f) * * *

(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 
The comments reflect interagency review of the draft rule under EOs 12866 and 13563.

They are subject to further policy review.

Page 77 of 93

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.
The comments reflect interagency review of the draft rule under EOs 12866 and 13563.

They are subject to further policy review.

Page 78 of 93

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

Administrator, such records as may be necessary to determine the 

conditions of performance tests.

* * * * *

5. 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, or Table 6, Item 2.c to this subpart.

* * * * *

6. Section 63.11501 is amended by:

a. Revising the section heading;

b. Revising the second sentence in paragraph (c) 

introductory text, and paragraph (c)(1) introductory text;

c. Adding paragraphs (c)(1)(vii) and (c)(1)(viii);

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

e. Adding paragraph (c)(8);
The comments reflect interagency review of the draft rule under EOs 12866 and 13563.

They are subject to further policy review.

Page 79 of 93

d. Revising the second sentence in paragraph (d) 

introductory text;

e. Adding paragraph (d)(8); and

f. Adding paragraph (e) to read as follows:

§63.11501 What are the notification, recordkeeping, and 

reporting requirements, and how may I assert an affirmative 

defense for exceedance of emission limit during malfunction?

* * * * *

(c) * * * 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 occurrence and duration of each 

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

pollution control and monitoring equipment.

(viii) Records of actions taken during periods of 

malfunction to minimize emissions in accordance with 

§63.11495(d), including corrective actions to restore 
The comments reflect interagency review of the draft rule under EOs 12866 and 13563.

They are subject to further policy review.

Page 80 of 93

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, duration, 

and a brief description for each type of malfunction which 

occurred during the reporting period, and which caused or may 

have caused any applicable emission limitation to be exceeded.

The report must include an estimate of the volume of regulated 

pollutants emitted and attributed to the malfunction, with a 
The comments reflect interagency review of the draft rule under EOs 12866 and 13563.

They are subject to further policy review.

Page 81 of 93

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 exceedance of emission limit 

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 

exceedances of such standards that are caused by malfunction, as 

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

however, if you fail to meet your burden of proving all of the 

requirements in the affirmative defense. The affirmative defense 

is not available for claims for injunctive relief.

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

enforce such a limit, you must timely meet the notification 

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

by a preponderance of evidence that:

(i) The excess emissions:

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

failure of air pollution control and monitoring equipment, 
The comments reflect interagency review of the draft rule under EOs 12866 and 13563.

They are subject to further policy review.

Page 82 of 93

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

manner; and

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

proper design, or better operation and maintenance practices; 

and 

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

been foreseen and avoided, or planned for; and 

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

inadequate design, operation, or maintenance; and

(ii) Repairs were made as expeditiously as possible when 

the applicable emission limitations were being exceeded. Offshift and overtime labor were used, to the extent practicable to 

make these repairs; and

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

emissions (including any bypass) were minimized to the maximum 

extent practicable during periods of such emissions; and

(iv) If the excess emissions resulted from a bypass of 

control equipment or a process, then the bypass was unavoidable 

to prevent loss of life, personal injury, or severe property 

damage; and
The comments reflect interagency review of the draft rule under EOs 12866 and 13563.

They are subject to further policy review.

Page 83 of 93

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

the excess emissions on ambient air quality, the environment and 

human health; and

(vi) All emissions monitoring and control systems were kept 

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

good air pollution control practices; and

(vii) All of the actions in response to the excess 

emissions were documented by properly signed, contemporaneous 

operating logs; and

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

manner consistent with good practices for minimizing emissions; 

and

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

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

primary causes of the malfunction and the excess emissions 

resulting from the malfunction event at issue. The analysis must

also specify, using best monitoring methods and engineering 

judgment, the amount of excess emissions that were the result of 

the malfunction. 

(2) Notification. If you experience an exceedance of your

emission limit(s) during a malfunction, you must notify the 

Administrator by telephone or facsimile (FAX) transmission as 
The comments reflect interagency review of the draft rule under EOs 12866 and 13563.

They are subject to further policy review.

Page 84 of 93

soon as possible, but no later than 2 business days after the 

initial occurrence of the malfunction, if you wish to avail 

yourself of an affirmative defense to civil penalties for that 

malfunction. If you seek to assert an affirmative defense, you

must also submit a written report to the Administrator within 45

days of the initial occurrence of the exceedance of the 

standard(s) in §§63.11495 through 63.11499 to demonstrate, with 

all necessary supporting documentation, that it has met the 

requirements set forth in paragraph (e)(1) of this section. You

may seek an extension of this deadline for up to 30 days by 

submitting a written request to the Administrator before the 

expiration of the 45-day period. Until a request for extension 

has been approved by the Administrator, you are subject to the 

requirement to submit such report within 45 days of the initial 

occurrence of the exceedance.

7. Section 63.11502 is amended by:

a. Adding in alphabetical order the term “Isolated 

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

materials (§63.2550)” in paragraph (a); and

b. Adding in alphabetical order definitions for 

“Affirmative defense,” “Family of materials,” “Hazardous waste 

treatment,” and “Uncontrolled emissions,” revising paragraph (1) 
The comments reflect interagency review of the draft rule under EOs 12866 and 13563.

They are subject to further policy review.

Page 85 of 93

of the definition of “Chemical manufacturing process,” and

revising the definitions for “In organic HAP service” and 

“Product” in paragraph (b) to read as follows:

§63.11502 What definitions apply to this subpart?

(a) * * *

Isolated intermediate (§63.2550)

* * * * *

(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.

* * * * *

Chemical manufacturing process * * *

(1) All cleaning operations;

* * * * *

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 comments reflect interagency review of the draft rule under EOs 12866 and 13563.

They are subject to further policy review.

Page 86 of 93

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 the owner or 

operator has been issued a final permit under 40 CFR part 270 

and complies with the requirements of 40 CFR part 264, subpart 

O, or has certified compliance with the interim status 

requirements of 40 CFR part 265, subpart O;

(2) A process heater or boiler for which you either have 

been issued a final permit under 40 CFR part 270 and comply with 

the requirements of 40 CFR part 266, subpart H, or for which you 

have certified compliance with the interim status requirements 

of 40 CFR part 266, subpart H; or

(3) An underground injection well for which the owner or 

operator has been issued a final permit under 40 CFR part 270 or 

40 CFR part 144 and complies with the requirements of 40 CFR 

part 122.

* * * * *
The comments reflect interagency review of the draft rule under EOs 12866 and 13563.

They are subject to further policy review.

Page 87 of 93

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.

* * * * *

Product means a compound or chemical which is manufactured 

as the intended product of the CMPU. Products include coproducts. By-products, impurities, wastes, and trace 

contaminants are not considered products.

* * * * *

Uncontrolled emissions means process vent emissions 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 6 to Subpart VVVVVV of Part 63—[AMENDED]
The comments reflect interagency review of the draft rule under EOs 12866 and 13563.

They are subject to further policy review.

Page 88 of 93

8. Table 6 to subpart VVVVVV of part 63 is amended 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.

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 comments reflect interagency review of the draft rule under EOs 12866 and 13563.

They are subject to further policy review.

Page 89 of 93

the organic phase(s).

b. Hard pipe the 

entire wastewater

stream to onsite 

hazardous waste 

treatment, or

hard pipe the entire 

wastewater stream to 

a point of transfer

to offsite hazardous 

waste treatment.

i. Keep records of 

the wastewater 

streams subject to 

this requirement and 

the disposition of 

the wastewater 

streams.

9. 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 a new entry for 63.7(a)(2), (b), (d), (e)(2)-

(e)(3);

d. Adding a new entry for 63.7(e)(1);

e. Removing the entry for 63.8(a)(1), (a)(4), (b), (c)(1)-

(c)(3), (f)(1)-(5);

f. Adding new entries for 63.8(a)(1), (a)(4), (b), 

(c)(1)(ii), (c)(2)-(c)(3), (f)(1)-(5), and 63.8(c)(1)(i) and 

63.8(c)(1)(iii);

g. Removing the entry for 63.8(c)(6)-(c)(8), (d), (e), 

(f)(6);
The comments reflect interagency review of the draft rule under EOs 12866 and 13563.

They are subject to further policy review.

Page 90 of 93

h. Adding new entries for 63.8(c)(6)-(c)(8), (d)(1)-(d)(2), 

(e), (f)(6) and 63.8(d)(3);

i. Removing the entry for 63.10(b)(2)(i)—(b)(2)(v);

j. 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)—(v);

k. Removing the entry for 63.10(c)(7)-(c)(8), (c)(10)-

(c)(12), (c)(15);

l. 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

m. Revising the entry for 63.10(d)(5) to 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 

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 
The comments reflect interagency review of the draft rule under EOs 12866 and 13563.

They are subject to further policy review.

Page 91 of 93

Facilities, 

and Conduct 

of 

Performance 

Tests

§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)(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 
The comments reflect interagency review of the draft rule under EOs 12866 and 13563.

They are subject to further policy review.

Page 92 of 93

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.

* * * * * * *

63.10(b)(2)(i) Recordkeepin

g 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

)

Recordkeepin

g of 

Malfunctions

No See 

§63.11501(c)(1)(vii) 

and (viii) for 

recordkeeping of (1) 

occurrence and 

duration and (2) 

actions taken during 

malfunction.

63.10(b)(2)(ii

i)

Maintenance 

Records

Yes

63.10(b)(2)(iv

) and (v)

Actions 

Taken to 

Minimize 

Emissions 

During SSM

No

* * * * * * *

63.10(c)(7)-

(8)

Additional 

Recordkeepin

g 

Requirements 

for CMS –

Identifying 

Exceedances 

and Excess 

Emissions

Yes
The comments reflect interagency review of the draft rule under EOs 12866 and 13563.

They are subject to further policy review.

Page 93 of 93

63.10(c)(10) Recordkeepin

g 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.

* * * * * * *