4522 Federal Register / Vol. 77, No. 19 / Monday, January 30, 2012 / Proposed Rules 

period, the maintenance plan will need to include 

information to support a finding that on-road 

emissions of NOX and direct PM2.5 continue to be 

insignificant during the maintenance period. The 

insignificance finding for the attainment 

demonstration does not automatically continue to 

apply to the maintenance plan. 

analysis will continue to apply for 

required projects under 40 CFR 93.116 

and 93.123(b) of the Transportation 

Conformity Rule. 

Weighing all the factors for an 

insignificance finding, particularly the 

minor contribution of mobile source 

NOX and PM2.5, EPA has determined 

that the NOX and PM2.5 contribution 

from motor vehicles emissions to the 

Annual PM2.5 pollution for the 

Kentucky portion of the Area are 

insignificant. EPA’s insignificance 

finding should be considered and 

specifically noted in the transportation 

conformity documentation that is 

prepared for this area. 

The insignificance determination that 

Kentucky submitted for the HuntingtonAshland Area was developed with 

projected mobile source emissions 

derived using the MOBILE6 motor 

vehicle emissions model. EPA is 

proposing to approve the inventory and 

the insignificance determination 

because this model was the most current 

model available at the time Kentucky 

was performing its analysis. However, 

EPA has now issued an updated motor 

vehicle emissions model known as 

Motor Vehicle Emission Simulator or 

MOVES. In its announcement of this 

model, EPA established a two-year grace 

period for continued use of MOBILE6 

(extending to March 2, 2012), after 

which states (other than California) 

must use MOVES in conformity 

determinations for transportation plans 

and transportation improvement 

programs. 

V. Proposed Action 

EPA is proposing to approve 

Kentucky’s annual PM2.5 attainment 

plan for the Kentucky portion of the 

Huntington-Ashland Area. EPA has 

determined that the SIP meets 

applicable requirements of the CAA, as 

described in the PM2.5 Implementation 

Rule. Specifically, EPA is proposing to 

approve Kentucky’s attainment 

demonstration, including the RACM/ 

RACT analysis; RFP analysis, base-year 

and attainment-year emissions 

inventories; and, for transportation 

conformity purposes, an insignificance 

determination for PM2.5 and NOX for the 

mobile source contribution to ambient 

PM2.5 levels for the Commonwealth’s 

portion of the Huntington-Ashland 

Area. The requirement for a RFP plan is 

satisfied because Kentucky 

demonstrated attainment of the 1997 

PM2.5 NAAQS in the Area by April 

2010. Also, because EPA has 

determined that the Area has attained 

by the attainment date, the contingency 

measures submitted by Kentucky are no 

longer necessary for the HuntingtonAshland Area to meet RFP requirements 

or to attain the annual PM2.5 NAAQS by 

the attainment date. 

VI. Statutory and Executive Order 

Reviews 

Under the CAA, the Administrator is 

required to approve a SIP submission 

that complies with the provisions of the 

Act and applicable federal regulations. 

42 U.S.C. 7410(k); 40 CFR 52.02(a). 

Thus, in reviewing SIP submissions, 

EPA’s role is to approve state choices, 

provided that they meet the criteria of 

the CAA. Accordingly, this proposed 

action merely approves state law as 

meeting federal requirements and does 

not impose additional requirements 

beyond those imposed by state law. For 

that reason, this proposed action: 

• Is not a ‘‘significant regulatory 

action’’ subject to review by the Office 

of Management and Budget under 

Executive Order 12866 (58 FR 51735, 

October 4, 1993); 

• Does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act (44 

U.S.C. 3501 et seq.); 

• Is certified as not having a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act (5 

U.S.C. 601 et seq.); 

• Does not contain any unfunded 

mandate or significantly or uniquely 

affect small governments, as described 

in the Unfunded Mandates Reform Act 

of 1995 (Pub. L. 104–4); 

• Does not have Federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999); 

• Is not an economically significant 

regulatory action based on health or 

safety risks subject to Executive Order 

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

• Is not a significant regulatory action 

subject to Executive Order 13211 (66 FR 

28355, May 22, 2001); 

• Is not subject to requirements of 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (15 U.S.C. 272 note) because 

application of those requirements would 

be inconsistent with the CAA; and 

• Does not provide EPA with the 

discretionary authority to address, as 

appropriate, disproportionate human 

health or environmental effects, using 

practicable and legally permissible 

methods, under Executive Order 12898 

(59 FR 7629, February 16, 1994). 

In addition, this proposed rule does 

not have tribal implications as specified 

by Executive Order 13175 (65 FR 67249, 

November 9, 2000), because the SIP is 

not approved to apply in Indian country 

located in the Commonwealth, and EPA 

notes that it will not impose substantial 

direct costs on tribal governments or 

preempt tribal law. 

List of Subjects 

40 CFR Part 52 

Environmental protection, Air 

pollution control, Intergovernmental 

relations, Reporting and recordkeeping 

requirements, Particulate matter. 

40 CFR Part 81 

Environmental protection, Air 

pollution control. 

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

Dated: January 20, 2012. 

A. Stanley Meiburg, 

Acting Regional Administrator, Region 4. 

[FR Doc. 2012–1938 Filed 1–27–12; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 63 

[EPA–HQ–OAR–2008–0334; FRL–9621–7] 

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, the 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, the EPA is 

reconsidering and requesting comment 


emcdonald on DSK29S0YB1PROD with PROPOSALS
Federal Register / Vol. 77, No. 19 / Monday, January 30, 2012 / Proposed Rules 4523 

on several provisions of the final rule. 

The EPA is also proposing certain 

revisions to its approach for addressing 

malfunctions and taking comment on 

those revisions. The EPA is further 

soliciting comment on the standards 

applicable during startup and shutdown 

periods, as set forth in the final rule. 

Additionally, the 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 March 30, 2012. 

Public Hearing. If anyone contacts 

EPA requesting to speak at a public 

hearing by February 9, 2012, a public 

hearing will be held on February 14, 

2012. 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. 

• Email: a-and-r-Docket@epa.gov, 

Attention Docket ID No. EPA–HQ– 

OAR–2008–0334. 

• Fax: (202) 566–9744, Attention 

Docket ID No. EPA–HQ–OAR–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–OAR–2008– 

0334. The 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 email. The www.regulations.gov Web 

site is an ‘‘anonymous access’’ system, 

which means the EPA will not know 

your identity or contact information 

unless you provide it in the body of 

your comment. If you send an email 

comment directly to the EPA without 

going through www.regulations.gov, 

your email 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, the 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 the EPA cannot read your 

comment due to technical difficulties 

and cannot contact you for clarification, 

the 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 the 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 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; email 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 the 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 

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: 


emcdonald on DSK29S0YB1PROD with PROPOSALS
4524 Federal Register / Vol. 77, No. 19 / Monday, January 30, 2012 / Proposed Rules 

1The 15 urban HAP for which the chemical 

manufacturing area source categories were listed are 

identified in table 1 of the final rule. 

Industry category NAICS 

Code 1 Examples of regulated entities 

Chemical Manufacturing ... 325 Chemical manufacturing area sources that use as feedstock, generate as byproduct or produce as product, any of the hazardous air pollutants (HAP) subject to this subpart except for: (1) Processes classified in NAICS Code 325222, 325314 or 325413; (2) processes subject to standards for other listed 

area source 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. 

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

Chemical Preparation, Carbon Black, Chemical Manufacturing: Chromium Compounds, 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 the EPA? 

Submitting CBI. Do not submit 

information that you consider to be CBI 

electronically through http:// 

www.regulations.gov or email. 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 the 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? 

Docket. The docket number for this 

action and the final rule (40 CFR part 

63, subpart VVVVVV) is Docket ID No. 

EPA–HQ–OAR–2008–0334. 

World Wide Web (WWW). In addition 

to being available in the docket, an 

electronic copy of this action is 

available on the WWW through the 

Technology Transfer Network (TTN) 

Web site. Following signature, a copy of 

this notice will be posted on the TTN’s 

policy and guidance page for newly 

proposed or promulgated rules at 

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

provides information and technology 

exchange in various areas of air 

pollution control. 

II. Background Information 

Section 112(d) of the Clean Air Act 

(CAA) requires the EPA to establish 

national emission standards for 

hazardous air pollutants (NESHAP) for 

both major and area sources of HAP that 

are listed for regulation under CAA 

section 112(c). A major source is any 

stationary source that emits or has the 

potential to emit 10 tons per year (tpy) 

or more of any single HAP or 25 tpy or 

more of any combination of HAP. An 

area source is a stationary source that is 

not a major source. 

On October 29, 2009 (74 FR 56008), 

the EPA issued the NESHAP for the 

nine chemical manufacturing area 

source (CMAS) categories that were 

listed pursuant to CAA sections 

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

source categories are Agricultural 

Chemicals and Pesticides 

Manufacturing, Cyclic Crude and 

Intermediate Production, Industrial 

Inorganic Chemical Manufacturing, 

Industrial Organic Chemical 

Manufacturing, Inorganic Pigments 

Manufacturing, Miscellaneous Organic 

Chemical Manufacturing, Plastic 

Materials and Resins Manufacturing, 

Pharmaceutical Production and 

Synthetic Rubber Manufacturing. 

CAA section 112(k)(3)(B) directs the 

EPA to identify at least 30 HAP that, as 

a result of emissions from area sources, 

pose the greatest threat to public health 

in the largest number of urban areas. 

The EPA implemented this provision in 

1999 in the Integrated Urban Air Toxics 

Strategy, (64 FR 38715, July 19, 1999) 

(Strategy). Specifically, in the Strategy, 

the EPA identified 30 HAP that pose the 

greatest potential health threat in urban 

areas, and these HAP are referred to as 

the ‘‘30 urban HAP.’’ Section 112(c)(3) 

of the CAA requires the EPA to list 

sufficient categories or subcategories of 

area sources to ensure that area sources 

representing 90 percent of the emissions 

of the 30 urban HAP are subject to 

regulation. The EPA completed this 

requirement in 2011 (76 FR 15308, 

March 21, 2011). The chemical 

manufacturing area source categories 

were listed to satisfy this requirement 

for 15 of the 30 urban HAP.1 Pursuant 

to CAA section 112(d)(5), the NESHAP 

reflect generally available control 

technologies or management practices 

(GACT). The NESHAP apply to each 

chemical manufacturing process unit 

(CMPU) that uses, generates or produces 

any of the 15 urban HAP for which the 

area source categories were listed 

(collectively ‘‘chemical manufacturing 

urban HAP’’ or ‘‘Table 1 HAP’’). 

On February 12, 2010, following 

promulgation of the final rule, the 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. EPA–HQ–OAR–2008–0334). 

Petitioners, pursuant to CAA section 

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


emcdonald on DSK29S0YB1PROD with PROPOSALS
Federal Register / Vol. 77, No. 19 / Monday, January 30, 2012 / Proposed Rules 4525 

reconsider six provisions in the rules: 

(1) The requirement that major sources 

that installed air pollution controls after 

1990, and, as a result, became area 

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

requirement that sources subject to the 

final rule and any overlapping provision 

in another rule comply with each 

provision independently, or with the 

most stringent requirements of each 

rule; (3) the requirement that leak 

inspections include direct and proximal 

(thorough) inspection of all areas of 

potential leak within the CMPU; (4) the 

requirement that process vessels in HAP 

service be equipped with a cover or lid 

that must be in place at all times when 

the vessel contains HAP, except for 

material addition and sampling; (5) the 

requirement to conduct leak inspections 

while the equipment is in HAP service; 

and (6) the requirement that a CMPU 

include all equipment and processes 

used to produce a ‘‘family of materials.’’ 

The arguments in support of these 

requests are provided in the petition 

and described briefly below. Petitioners 

also requested that the EPA stay the 

effectiveness of these provisions of the 

rule to save many facilities from 

needlessly having to file the initial 

notifications required by the final rule. 

On June 15, 2010, the EPA sent a 

letter to Petitioners informing them that 

the 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 the EPA considered the 

request for a stay to be moot because the 

due date for initial notifications had 

already passed. 

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 

the 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 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, the 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: 

• The 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 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 the 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 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 synthetic area sources that installed 

controls to become area sources is 

appropriate; therefore, we are not 

proposing to exempt such sources from 

the requirement to obtain a title V 

permit. We are, however, making 

changes to the applicability of the 

provision at issue. Instead of requiring 

a title V permit for all synthetic area 

sources that installed air pollution 

controls in order to become an area 

source, regardless of whether the 

controls were installed on an affected 

CMPU, we are now proposing to only 

require a title V permit for a synthetic 

area source if air pollution controls were 

installed on at least one CMPU subject 

to the final rule in order to become an 

area source. 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. We are also 


emcdonald on DSK29S0YB1PROD with PROPOSALS
4526 Federal Register / Vol. 77, No. 19 / Monday, January 30, 2012 / Proposed Rules 

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, the EPA interpreted the 

term ‘‘unnecessarily burdensome’’ in 

CAA section 502, and developed a fourfactor 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). 

The 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, 

the 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 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 

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 estimated that 75 are synthetic area 

sources by virtue of add-on controls, 

and only 47 of these facilities were 

estimated to need a new title V permit 

because the remainder of the sources are 

already subject to title V for other 

reasons. Of the 47 sources that would 

require a new title V permit under the 

requirement in the final rule, we 

estimated that at least two-thirds of 

these facilities are large entities. Since 

we do not know whether the add-on 

controls at these 75 facilities are 

installed on a CMPU subject to the final 

rule, we cannot estimate the total 

number of facilities that would be 

required to obtain a new title V permit 

under this proposed revision to the title 

V permit requirement. However, we 

believe that it would be less than the 47 

facilities that would have required a 

new title V permit under the final rule 

requirement. 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) the EPA has determined in 

other area source rules that statedelegated programs and Federal 

enforceability of the standards is 

sufficient, and that 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 the 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, the 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 

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 


emcdonald on DSK29S0YB1PROD with PROPOSALS
Federal Register / Vol. 77, No. 19 / Monday, January 30, 2012 / Proposed Rules 4527 

2Existing sources may become subject to the 

NESHAP for CMAS after the 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. 

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 that the title V 

permit requirement will help ensure 

that these control devices remain in 

place and that these sources maintain 

their area source status. Since it is 

possible that the non-operation, failure 

or underperformance of a single control 

device could result in a source within 

this category exceeding the major source 

emission threshold (10 tpy or more of 

any single HAP or 25 tpy or more of any 

combination of HAP), we believe that 

the additional scrutiny that permitting 

authorities place on sources with title V 

permits is warranted. 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 the applicability of the title 

V permit requirement to synthetic area 

sources that installed controls. The 

proposed changes more clearly identify 

the sources subject to title V as those 

that route (or have routed) emissions 

from at least one process unit subject to 

the final rule to a control device(s) that 

is required to maintain synthetic area 

source status at the facility, which will 

likely reduce the number of sources 

required to obtain a title V permit, if 

promulgated. 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 also proposing to include 

language that informs sources subject to 

title V requirements when they must 

submit a title V permit application. The 

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 the 

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. 

Additionally, we are soliciting 

comment on the promulgated final rule 

requirement that required a facility to 

obtain a title V permit if emissions from 

any process unit are (or have been) 

routed to the control device(s) that is 

required to maintain synthetic area 

source status at the facility. 

We are requesting comment with 

supporting rationale on the requirement, 

as specified in this proposed rule and 

the promulgated final rule requirement 

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. 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 federallyenforceable 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 the 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 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 the 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 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 


emcdonald on DSK29S0YB1PROD with PROPOSALS
4528 Federal Register / Vol. 77, No. 19 / Monday, January 30, 2012 / Proposed Rules 

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 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, the 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)’’ 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 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 

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 

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 


emcdonald on DSK29S0YB1PROD with PROPOSALS
Federal Register / Vol. 77, No. 19 / Monday, January 30, 2012 / Proposed Rules 4529 

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 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 

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 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. 

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 

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 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 


emcdonald on DSK29S0YB1PROD with PROPOSALS
4530 Federal Register / Vol. 77, No. 19 / Monday, January 30, 2012 / Proposed Rules 

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 the 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. 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 the 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 the 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 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 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 VII 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. 

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 the 

EPA’s CAA section 112 regulations 

governing the emissions of HAP during 

periods of startup, shutdown and 

malfunction (SSM). Sierra Club v. EPA, 

551 F.3d 1019 (D.C. Cir. 2008), cert. 

denied, 130 S. Ct. 1735 (U.S. 2010). 

Specifically, the Court vacated the SSM 

exemption contained in 40 CFR 

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

part of a regulation, commonly referred 

to as the ‘‘General Provisions Rule,’’ that 

the EPA promulgated under section 112 

of the CAA. When incorporated into 

CAA section 112(d) regulations for 

specific source categories, the 

exemption in these two provisions 

exempts sources from the requirement 

to comply with 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 


emcdonald on DSK29S0YB1PROD with PROPOSALS
Federal Register / Vol. 77, No. 19 / Monday, January 30, 2012 / Proposed Rules 4531 

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 the EPA anticipate and 

account for the innumerable types of 

potential malfunction events in setting 

emission 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 the 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) (the EPA typically has 

wide latitude in determining the extent 

of data-gathering necessary to solve a 

problem. We generally defer to an 

agency’s decision to proceed on the 

basis of imperfect scientific information, 

rather than to ‘‘invest the resources to 

conduct the perfect study.’’). 

In the event that a source fails to 

comply with the applicable CAA section 

112(d) standards as a result of a 

malfunction event, the EPA would 

determine an appropriate response 

based on, among other things, the good 

faith efforts of the source to minimize 

emissions during malfunction periods, 

including preventative and corrective 

actions, as well as root cause analyses 

to ascertain and rectify excess 

emissions. The EPA would also 

consider whether the source’s failure to 

comply with the CAA section 112(d) 

standard was, in fact, ‘‘sudden, 

infrequent, not reasonably preventable’’ 

and was not instead ‘‘caused in part by 

poor maintenance or careless 

operation.’’ 40 CFR 63.2 (definition of 

malfunction). 

Finally, the EPA recognizes that even 

equipment that is properly designed and 

maintained can sometimes fail, and that 

such failure can sometimes cause 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)). The EPA is, 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 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). 

The EPA included an affirmative 

defense in the final rule in an attempt 

to balance a tension, inherent in many 

types of air regulation, to ensure 

adequate compliance while 

simultaneously recognizing that despite 

the most diligent of efforts, emission 

limits may be exceeded under 

circumstances beyond the control of the 

source. The EPA must establish 

emission standards that ‘‘limit the 

quantity, rate, or concentration of 

emissions of air pollutants on a 

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

(defining ‘‘emission limitation and 

emission standard’’). See, e.g., Sierra 

Club v. EPA, 551 F.3d 1019, 1021 (DC 

Cir. 2008). Thus, the EPA is required to 

ensure that section 112 emissions 

limitations are continuous. The 

affirmative defense for malfunction 

events meets this requirement by 

ensuring that even where there is a 

malfunction, the emission limitation is 

still enforceable through injunctive 

relief. While ‘‘continuous’’ limitations, 

on the one hand, are required, there is 

also case law indicating that, in many 

situations, it is appropriate for the EPA 

to account for the practical realities of 

technology. For example, in Essex 

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

433 (DC Cir. 1973), the District of 

Columbia Circuit Court 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 (DC Cir. 

1973). Though intervening case law 

such as Sierra Club v. EPA and the CAA 

1977 amendments undermine the 

relevance of these cases today, they 

support the EPA’s view that a system 

that incorporates some level of 

flexibility is reasonable. The affirmative 

defense simply provides for a defense to 

civil penalties for excess emissions that 

are proven to be beyond the control of 

the source. By incorporating an 


emcdonald on DSK29S0YB1PROD with PROPOSALS
4532 Federal Register / Vol. 77, No. 19 / Monday, January 30, 2012 / Proposed Rules 

affirmative defense, the EPA has 

formalized its approach to upset events. 

In a Clean Water Act setting, the Ninth 

Circuit required this type of formalized 

approach when regulating ‘‘upsets 

beyond the control of the permit 

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

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

see, Weyerhaeuser Co. v. Costle, 590 

F.2d 1011, 1057–58 (DC 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. 

The 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. 

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 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 HAPcontaining 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 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 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–HQ–OAR–2008– 

0334–0005). Therefore, we are 

requesting comment on whether there 

are reasons GACT for processes that 

emit gaseous 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 


emcdonald on DSK29S0YB1PROD with PROPOSALS
Federal Register / Vol. 77, No. 19 / Monday, January 30, 2012 / Proposed Rules 4533 

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 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 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 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 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. 


emcdonald on DSK29S0YB1PROD with PROPOSALS
4534 Federal Register / Vol. 77, No. 19 / Monday, January 30, 2012 / Proposed Rules 

TABLE 1—MISCELLANEOUS TECHNICAL CORRECTIONS TO 40 CFR PART 63, SUBPART VVVVVV—Continued 

Section of subpart VVVVVV Description of correction 

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 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, the EPA submitted this 

action to the Office of Management and 

Budget (OMB) for review under 

Executive Order 12866 and Executive 

Order 13563 (76 FR 3821, January 21, 

2011), and any changes made in 

response to OMB recommendations 

have been documented in the docket for 

this action. 

B. Paperwork Reduction Act 

The information collection 

requirements in this 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 the 

EPA has been assigned EPA ICR number 

2323.03. The information collection 

requirements are not enforceable until 

OMB approves them. 

The information requirements are 

based on notification, recordkeeping 

and reporting requirements in the 

NESHAP General Provisions (40 CFR 

part 63, subpart A), which are 

mandatory for all operators subject to 

national emission standards. These 

recordkeeping and reporting 

requirements are specifically authorized 

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

7414). All information submitted to the 

EPA pursuant to the recordkeeping and 

reporting requirements for which a 

claim of confidentiality is made is 

safeguarded according to agency 

policies set forth in 40 CFR part 2, 

subpart B. 

For this proposed rule, the EPA is 

adding affirmative defense to the 

estimate of burden in the ICR. To 

provide the public with an estimate of 

the relative magnitude of the burden 

associated with an assertion of the 

affirmative defense position adopted by 

a source, the EPA has provided 

administrative adjustments to this ICR 

to show what the notification, 

recordkeeping and reporting 

requirements associated with the 

assertion of the affirmative defense 

might entail. The EPA’s estimate for the 

required notification, reports and 

records for any individual incident, 

including the root cause analysis, totals 

$2,958 and is based on the time and 

effort required of a source to review 

relevant data, interview plant 

employees, and document the events 

surrounding a malfunction that has 

caused an exceedance of an emissions 

limit. The estimate also includes time to 

produce and retain the record and 

reports for submission to the EPA. The 

EPA provides this illustrative estimate 

of this burden because these costs are 

only incurred if there has been a 

violation and a source chooses to take 

advantage of the affirmative defense. 

Given the variety of circumstances 

under which malfunctions could occur, 

as well as differences among sources’ 

operation and maintenance practices, 

we cannot reliably predict the severity 

and frequency of malfunction-related 

excess emissions events for a particular 

source. It is important to note that the 

EPA has no basis currently for 

estimating the number of malfunctions 

that would qualify for an affirmative 

defense. Current historical records 

would be an inappropriate basis, as 

source owners or operators previously 

operated their facilities in recognition 

that they were exempt from the 

requirement to comply with emissions 

standards during malfunctions. Of the 

number of excess emissions events 

reported by source operators, only a 

small number would be expected to 

result from a malfunction (based on the 

definition above), and only a subset of 

excess emissions caused by 

malfunctions would result in the source 

choosing to assert the affirmative 

defense. Thus, we believe the number of 

instances in which source operators 

might be expected to avail themselves of 

the affirmative defense will be 

extremely small. For this reason, we 

estimate no more than 2 or 3 such 

occurrences for all sources subject to 40 

CFR part 63, subpart VVVVVV over the 

3-year period covered by this ICR. We 

expect to gather information on such 

events in the future and will revise this 

estimate as better information becomes 

available. 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 the EPA’s regulations in 40 

CFR are listed in 40 CFR part 9. When 

these ICR 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, the EPA has 

established a public docket for this rule, 

which includes this ICR, under Docket 

ID number EPA–HQ–OAR–2008–0334. 

Submit any comments related to the ICR 

to the EPA and OMB. See the ADDRESSES


emcdonald on DSK29S0YB1PROD with PROPOSALS
Federal Register / Vol. 77, No. 19 / Monday, January 30, 2012 / Proposed Rules 4535 

section at the beginning of this notice 

for where to submit comments to the 

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 the EPA. Since OMB is 

required to make a decision concerning 

the ICR between 30 and 60 days after 

March 30, 2012, a comment to OMB is 

best assured of having its full effect if 

OMB receives it by February 29, 2012. 

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. 

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 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 the 

EPA and state and local governments, 

the 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. 

The 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 

The EPA interprets Executive Order 

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

applying to those regulatory actions that 

concern health or safety risks, such that 

the analysis required under section 5– 

501 of the Executive Order has the 

potential to influence the regulation. 

This proposed rule is not subject to 

Executive Order 13045 because it is 

based solely on technology 

performance. 

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 104– 

113, 12(d) (15 U.S.C. 272 note) directs 

the EPA to use voluntary consensus 

standards (VCS) in its regulatory 

activities, unless to do so would be 

inconsistent with applicable law or 

otherwise impractical. VCS are 

technical standards (e.g., materials 

specifications, test methods, sampling 

procedures and business practices) that 

are developed or adopted by VCS 

bodies. NTTAA directs the 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, 

the EPA did not consider the use of any 

VCS. 

J. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

Executive Order 12898 (59 FR 7629, 

February 16, 1994) establishes Federal 

executive policy on environmental 

justice. Its main provision directs 

Federal agencies, to the greatest extent 

practicable and permitted by law, to 

make environmental justice part of their 

mission by identifying and addressing, 

as appropriate, disproportionately high 

and adverse human health or 

environmental effects of their programs, 

policies and activities on minority 

populations and low-income 

populations in the United States. 

The EPA has determined that this 

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 


emcdonald on DSK29S0YB1PROD with PROPOSALS
4536 Federal Register / Vol. 77, No. 19 / Monday, January 30, 2012 / Proposed Rules 

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. 

List of Subjects in 40 CFR Part 63 

Environmental protection, 

Administrative practice and procedure, 

Air pollution control, Hazardous 

substances. 

Dated: January 13, 2012. 

Lisa P. Jackson, 

Administrator. 

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. 

(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 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 an affected 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 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 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 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 


emcdonald on DSK29S0YB1PROD with PROPOSALS
Federal Register / Vol. 77, No. 19 / Monday, January 30, 2012 / Proposed Rules 4537 

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 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 or 

engineering assessment must be 

conducted under representative 

operating conditions, and sampling for 

each performance test must be 

conducted at both the inlet and outlet of 

the control device. Upon request, you 

shall make available to the 

Administrator such records as may be 

necessary to determine the conditions of 

performance tests. If you own or operate 

an existing affected source, you are not 

required to conduct a performance test 

if a prior performance test was 

conducted within the 5 years prior to 

the effective date using the same 

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

of this section, and, either no process 

changes have been made since the test, 

or, if you can demonstrate that the 

results of the performance test, with or 

without adjustments, reliably 

demonstrate compliance despite process 

changes. 

* * * * * 

(g) * * * 

(1) Requirements for Performance 

Tests. (i) The requirements specified in 

§§ 63.2450(g)(1) through (4) apply 

instead of, or in addition to, the 

requirements specified in 40 CFR part 

63, subpart SS. 

(ii) Upon request, you shall make 

available to the Administrator, such 

records as may be necessary to 

determine the conditions of 

performance tests. 

* * * * * 

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); 

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 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 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: 


emcdonald on DSK29S0YB1PROD with PROPOSALS
4538 Federal Register / Vol. 77, No. 19 / Monday, January 30, 2012 / Proposed Rules 

(A) Were caused by a sudden, 

infrequent and unavoidable failure of air 

pollution control and monitoring 

equipment, process equipment, or a 

process to operate in a normal or usual 

manner; and 

(B) Could not have been prevented 

through careful planning, proper design, 

or better operation and maintenance 

practices; and 

(C) Did not stem from any activity or 

event that could have been foreseen and 

avoided, or planned for; and 

(D) Were not part of a recurring 

pattern indicative of inadequate design, 

operation or maintenance; and 

(ii) Repairs were made as 

expeditiously as possible when the 

applicable emission limitations were 

being exceeded. Off-shift and overtime 

labor were used, to the extent 

practicable to make these repairs; and 

(iii) The frequency, amount and 

duration of the excess emissions 

(including any bypass) were minimized 

to the maximum extent practicable 

during periods of such emissions; and 

(iv) If the excess emissions resulted 

from a bypass of control equipment or 

a process, then the bypass was 

unavoidable to prevent loss of life, 

personal injury or severe property 

damage; and 

(v) All possible steps were taken to 

minimize the impact of the excess 

emissions on ambient air quality, the 

environment and human health; and 

(vi) All emissions monitoring and 

control systems were kept in operation, 

if at all possible, consistent with safety 

and good air pollution control practices; 

and 

(vii) All of the actions in response to 

the excess emissions were documented 

by properly signed, contemporaneous 

operating logs; and 

(viii) At all times, the 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 submit 

a written report to the Administrator 

within 45 business 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 additional business days by 

submitting a written request to the 

Administrator before the expiration of 

the 45 business-day period. Until a 

request for an extension has been 

approved by the Administrator, you are 

subject to the requirement to submit 

such report within 45 business days. 

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) 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 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. 

* * * * * 

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 co-products. Byproducts, 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] 

8. Table 6 to subpart VVVVVV of part 

63 is revised to read as follows: 


emcdonald on DSK29S0YB1PROD with PROPOSALS
Federal Register / Vol. 77, No. 19 / Monday, January 30, 2012 / Proposed Rules 4539 

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

SYSTEMS

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

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

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

treatment or hazardous waste treatment.

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

treatment that it receives. Multiple wastewater streams with similar characteristics 

and from the same type of activity in a 

CMPU may be grouped together for recordkeeping purposes. 

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

and separate organic and water phases.

a. Use a decanter, steam stripper, thin film 

evaporator, or distillation unit to separate 

the water phase from the organic phase(s); 

or 

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

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

waste either onsite or offsite, and 

iii. Keep records of the wastewater streams 

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

b. Hard pipe the entire wastewater 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); 

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 Facilities, 

and Conduct of Performance Tests.

Yes/No ....................... Requirements apply if conducting test for metal HAP control; requirements in §§ 63.997(c)(1), (d), (e) and § 63.999(a)(1) apply, as 

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

hydrogen halide and halogen HAP control device. 

63.7(e)(1) ..................... Performance Testing .. No ............................... See § 63.11496(f)(3)(ii) if conducting a test for metal HAP emissions. See §§ 63.11496(g) and 63.997(e)(1) if conducting a test 

for continuous process vents or for hydrogen halide and halogen 

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

test for batch process vents. 

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

(c)(1)(ii), (c)(2)–(c)(3), 

(f)(1)–(5).

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

63.8(c)(1)(i) .................. General Duty to Minimize Emissions and 

CMS Operation.

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


emcdonald on DSK29S0YB1PROD with PROPOSALS
4540 Federal Register / Vol. 77, No. 19 / Monday, January 30, 2012 / Proposed Rules 

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

Continued 

Citation Subject Applies to Subpart 

VVVVVV Explanation 

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 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) ................ Recordkeeping of Occurrence and Duration of Startups and 

Shutdowns.

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

of each startup and shutdown for continuous process vents that 

are subpart to Table 3 to this subpart. 

63.10(b)(2)(ii) ............... Recordkeeping of Malfunctions.No ............................... See § 63.11501(c)(1)(vii) and (viii) for recordkeeping of (1) occurrence and duration and (2) actions taken during malfunction. 

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

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

* * * * * * * 

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

Identifying 

Exceedances and 

Excess Emissions.

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

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

and Cause of Malfunctions.

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

requirements. 

63.10(c)(11) ................. Recording Corrective 

Actions.

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

requirements. 

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

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

* * * * * * * 

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

*******

[FR Doc. 2012–1610 Filed 1–27–12; 8:45 am] 

BILLING CODE 6560–50–P 


emcdonald on DSK29S0YB1PROD with PROPOSALS