[Federal Register Volume 75, Number 106 (Thursday, June 3, 2010)]
[Rules and Regulations]
[Pages 31317-31320]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-13384]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 63

[EPA-HQ-OAR-2008-0053; FRL-9158-1]
RIN 2060-AN47


National Emission Standards for Hazardous Air Pollutants: Area 
Source Standards for Paints and Allied Products Manufacturing; 
Amendments

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is taking direct final action on amendments to the paints 
and allied products manufacturing area source rule. With this direct 
final rule, EPA is amending the definition of ``material containing 
hazardous air pollutants.'' It was not EPA's intent to omit the part of 
this definition that addresses non-carcinogens, and this omission could 
potentially and erroneously include facilities as applicable to the 
rule when they should not be covered.
    This action clarifies text of the National Emission Standards for 
Hazardous Air Pollutants: Paints and Allied Products Manufacturing Area 
Source Standards which was published on December 3, 2009. This action 
will not change the level of health protection the final rule provides 
or the standards and other requirements established by the rule.

DATES: This direct final rule is effective on September 16, 2010 
without further notice, unless EPA receives relevant adverse comment by 
July 19, 2010. If EPA receives relevant adverse comment, we will 
publish a timely withdrawal in the Federal Register informing the 
public that the amendments in this rule will not take effect.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2008-0053, by one of the following methods:
    <bullet> Federal eRulemaking Portal: www.regulations.gov: Follow 
the instructions for submitting comments.
    <bullet> Agency Web site: www.epa.gov/oar/docket.html. Follow the 
instructions for submitting comments on the EPA Air and Radiation 
Docket Web site.
    <bullet> E-mail: <a href="/cdn-cgi/l/email-protection#78195519161c550a553c171b131d0c381d0819561f170e"><span class="__cf_email__" data-cfemail="1d7c307c7379306f3059727e7678695d786d7c337a726b">[email protected]</span></a>. Include Docket ID No. EPA-
HQ-OAR-2008-0053 in the subject line of the message.
    <bullet> Fax: Send comments to (202) 566-9744, Attention Docket ID 
No. EPA-HQ-OAR-2008-0053.
    <bullet> Mail: Area Source NESHAP for Paints and Allied Products 
Manufacturing Docket, Environmental Protection Agency, Air and 
Radiation Docket and Information Center, Mailcode: 2822T, 1200 
Pennsylvania Avenue, NW., Washington, DC 20460. Please include a total 
of two copies. In addition, please mail a copy of your comments on the 
information collection provisions to the Office of Information and 
Regulatory Affairs, Office of Management and Budget (OMB), Attn: Desk 
Officer for EPA, 725 17th Street, NW., Washington, DC 20503.
    <bullet> Hand Delivery: EPA Docket Center, Public Reading Room, EPA 
West, Room 3334, 1301 Constitution Avenue, NW., Washington, DC 20460. 
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-
2008-0053. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
http://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 http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site 
is an ``anonymous access'' system, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an e-mail comment directly to EPA without 
going through http://www.regulations.gov, your e-mail address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, EPA 
may not be able to consider your comment. Electronic files should avoid 
the use of special characters, any form of encryption, and be free of 
any defects or viruses.
    Docket: EPA has established a docket for this action under Docket 
ID No. EPA-HQ-OAR-2008-0053. All documents in the docket are listed in 
the Federal Docket Management System index at http://www.regulations.gov. 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 form. Publicly 
available docket materials are available either electronically through 
http://www.regulations.gov or in hard copy at the EPA Docket Center, 
Public Reading Room, EPA West, 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

[[Page 31318]]

legal holidays. The telephone number for the Public Reading Room is 
(202) 566-1744, and the telephone number for the Air Docket is (202) 
566-1742.

FOR FURTHER INFORMATION CONTACT: Melissa Payne, Regulatory Development 
and Policy Analysis Group, Office of Air Quality Planning and Standards 
(C404-05), Environmental Protection Agency, Research Triangle Park, NC 
27711. Telephone number: (919) 541-3609; fax number: (919) 541-0242; e-
mail address: <a href="/cdn-cgi/l/email-protection#4f3f2e36212a61222a23263c3c2e0f2a3f2e61282039"><span class="__cf_email__" data-cfemail="f787968e9992d99a929b9e848496b7928796d9909881">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION: The information presented in this preamble 
is organized as follows:

I. Why is EPA using a direct final rule?
II. Does this action apply to me?
III. Where can I get a copy of this document?
IV. Why are we amending the rule?
V. What amendments are we making to the rule?
VI. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and 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 and Safety Risks
H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use
I. National Technology Transfer and Advancement Act
J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations
K. Congressional Review Act

I. Why is EPA using a direct final rule?

    We are publishing this rule without a prior proposed rule because 
we view this as a non-controversial action and anticipate no adverse 
comment. This action amends the definition of ``material containing 
HAP'' to include non-carcinogens in quantities of 1.0 percent by mass 
or more. It was the intent of EPA to include this complete definition, 
but we inadvertently omitted the language regarding the 1.0 percent 
level for non-carcinogens, as defined by the Occupational Safety and 
Health Administration (OSHA) at 29 CFR 1910.1200(g).
    It was not EPA's intent to omit the part of this definition that 
addresses non-carcinogens, and this omission could potentially and 
erroneously include facilities as applicable to the rule that are not 
part of the source category as defined in the inventory, which took 
into account the Toxics Release Inventory (TRI) de minimis thresholds.
    Because this is an amendment of regulatory language through a rule 
action, a rule redline has been created of the current rule with the 
amendments, and has been placed in the docket to aid the public's 
ability to comment on the regulatory text. If we receive relevant 
adverse comment on this direct final rule, we will publish a timely 
withdrawal in the Federal Register informing the public that the 
amendments in this rule will not take effect. Any parties interested in 
commenting must do so at this time.

II. Does this action apply to me?

    Regulated Entities. The regulated categories and entities 
potentially affected by the final rule include:

------------------------------------------------------------------------
                                                  Examples of regulated
            Category             NAICS code \1\          entities
------------------------------------------------------------------------
Paint & Coating Manufacturing..          325510  Area source facilities
                                                  engaged in mixing
                                                  pigments, solvents,
                                                  and binders into
                                                  paints and other
                                                  coatings, such as
                                                  stains, varnishes,
                                                  lacquers, enamels,
                                                  shellacs, and water
                                                  repellant coatings for
                                                  concrete and masonry.
Adhesive Manufacturing.........          325520  Area source facilities
                                                  primarily engaged in
                                                  manufacturing
                                                  adhesives, glues, and
                                                  caulking compounds.
Printing Ink Manufacturing.....          325910  Area source facilities
                                                  primarily engaged in
                                                  manufacturing printing
                                                  inkjet inks and inkjet
                                                  cartridges.
All Other Miscellaneous                  325998  Area source facilities
 Chemical Product and                             primarily engaged in
 Preparation Manufacturing.                       manufacturing
                                                  indelible ink, India
                                                  ink writing ink, and
                                                  stamp pad ink.
------------------------------------------------------------------------
\1\ North American Industry Classification System.

    This table is not intended to be exhaustive, but rather provides a 
guide for readers regarding entities likely to be affected by this 
action. To determine whether your facility is regulated by this action, 
you should examine the applicability criteria in 40 CFR 63.11599, 
subpart CCCCCCC (NESHAP for Area Sources: Paints and Allied Products 
Manufacturing). If you have any questions regarding the applicability 
of this action to a particular entity, consult either the state 
delegated authority or the EPA regional representative, as listed in 40 
CFR 63.13 of subpart A (General Provisions).

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

    Electronic Access. In addition to being available in the docket, an 
electronic copy of this final action will also be available on the 
Worldwide Web (WWW) through the Technology Transfer Network (TTN). 
Following signature, a copy of this final action will be posted on the 
TTN's policy and guidance page for newly proposed or promulgated rules 
at the following address: http://www.epa.gov/ttn/oarpg/. The TTN 
provides information and technology exchange in various areas of air 
pollution control.

IV. Why are we amending the rule?

    Our intention in this area source rule was to reflect the TRI de 
minimis thresholds for both carcinogens (0.1 percent HAP concentration) 
and non-carcinogens (1.0 percent HAP concentration) in the definition 
of ``material containing HAP'' however, only the threshold for 
carcinogens is currently reflected. To correct this error, we are 
amending the rule to add the 1.0 percent concentration threshold for 
non-carcinogens.
    These concentration levels are consistent with the OSHA Hazard 
Communication Standard requirements for development of a Material 
Safety Data Sheet (MSDS), which is how paints and allied products 
manufacturers receive information on the toxicity of the raw materials 
they use (See 29 FR 1910.1200(g)). The concentration level for 
hazardous chemicals is 1.0 percent, unless the chemical is an OSHA-
defined carcinogen. The concentration level for OSHA-defined 
carcinogens is 0.1 percent. We inadvertently omitted mentioning the 1.0 
percent for non-carcinogens portion of the definition in the definition 
for ``material containing HAP'' in the area source standards for Paints 
and Allied Products Manufacturing (40 FR 63.11607).

[[Page 31319]]

    The amendment will not change the level of health protection the 
rule provides or the standards established by the rule. To quote the 
TRI rule that codified the concentration levels, ``EPA does not expect 
that the processing and use of mixtures containing less than the de 
minimis concentration would, in most instances, contribute 
significantly to the threshold determinations or releases of listed 
toxic chemicals from any given facility.'' (53 FR 4509). In other 
words, mixtures with concentration levels under the de minimis levels 
are not concentrations of concern under TRI.
    Furthermore, this amendment will accurately reflect the regulated 
source category, as non-carcinogens with less than 1.0 percent by mass 
were not intended to be regulated as part of the source category, 
because the source category as defined excluded sources below this 
level. Also, the complete de mimimis threshold definition may encourage 
manufacturers to replace some carcinogenic raw materials with 
noncarcinogenic raw materials. No costs or other impacts are associated 
with this amendment.

V. What amendments are we making to the rule?

    On December 3, 2009 the EPA published the national emission 
standards for hazardous air pollutants (NESHAP) for area source paints 
and allied products manufacturing facilities as subpart CCCCCCC in 40 
CFR part 63 (74 FR 63504). This action corrects the error in this 
regulation.
    As currently written, 40 CFR 63.11607 defines ``material containing 
HAP'' as ``a material containing benzene, methylene chloride, or 
compounds of cadmium, chromium, lead, and/or nickel, in amounts greater 
than or equal to 0.1 percent by weight, as shown in formulation data 
provided by the manufacturer or supplier, such as the Material Safety 
Data Sheet for the material. Benzene and methylene chloride are 
volatile HAP. Compounds of cadmium, chromium, lead and/or nickel are 
metal HAP.'' The correct definition is, ``* * * in amounts greater than 
or equal to 0.1 percent by weight for carcinogens or 1.0 percent by 
weight for non-carcinogens, as shown in * * * (emphasis added). This 
single change provides further clarification to the applicability 
provisions that are referenced in the final rule, as well as accurately 
reflecting the thresholds used in the TRI and reference at the time the 
source category was defined. This action notifies interested parties of 
the corrections.

VI. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

    This action is not a ``significant regulatory action'' under the 
terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is, 
therefore, not subject to review under the Executive Order.

B. Paperwork Reduction Act

    This action does not impose any new information collection burden. 
The proposed amendments result in no changes to the information 
collection requirements of the existing standards of performance and 
will have little or no impact on the information collection estimate of 
projected cost and hour burden made and approved by the Office of 
Management and Budget (OMB) during the development of the existing 
standards of performance. Therefore, the information collection 
requests have not been amended. However, OMB has previously approved 
the information collection requirements contained in the existing 
regulations (subpart CCCCCCC, 40 CFR part 63) under the provisions of 
the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., and has assigned 
OMB control number 2060-0633 (ICR 23487.02). The OMB control numbers 
for EPA's regulations in 40 CFR are listed in 40 CFR part 9.

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 Procedure 
Act or any other statute unless the agency certifies that the rule 
would not have a significant economic impact on a substantial number of 
small entities. Small entities include small businesses, small not-for-
profit enterprises, and small governmental jurisdictions.
    For the purposes of assessing the impacts of this direct final rule 
on small entities, a small entity is defined as: (1) A small business 
that meets the Small Business Administration size standards for small 
businesses found at 13 CFR 121.201; (2) a small governmental 
jurisdiction that is a government of a city, county, town, school 
district, or special district with a population of less than 50,000; 
and (3) a small organization that is any not-for-profit enterprise 
which is independently owned and operated and is not dominant in its 
field.
    After considering the economic impacts of this direct final rule on 
small entities, I certify that this action will not have a significant 
economic impact on a substantial number of small entities. Although 
this direct final rule will not have a significant economic impact on a 
substantial number of small entities, EPA nonetheless has tried to 
reduce the impact of this rule on small entities. If adopted, the 
amended definition for ``material containing HAP'' will not adversely 
impact small entities, as the thresholds for the noncarcinogenic HAP 
are below the TRI levels of concern for this source category.

D. Unfunded Mandates Reform Act

    This direct final does not contain a Federal mandate that may 
result in expenditures of $100 million or more for State, local, and 
tribal governments, in the aggregate, or to the private sector in any 
one year. This direct final is not expected to impact State, local, or 
tribal governments. Thus, this rule would not be subject to the 
requirements of sections 202 and 205 of the Unfunded Mandates Reform 
Act (UMRA).
    This final rule would also not be subject to the requirements of 
section 203 of UMRA because it contains no regulatory requirements that 
might significantly or uniquely affect small governments.

E. Executive Order 13132: Federalism

    This direct final rule does not have federalism implications. It 
will not have substantial direct effects on the States, on the 
relationship between the national government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government, as specified in Executive Order 13132. This direct final 
rule does not impose any requirements on State and local governments. 
Thus, Executive Order 13132 does not apply to this rule.

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    This action does not have tribal implications, as specified in 
Executive Order 13175 (65 FR 67249, November 9, 2000). This direct 
final rule imposes no requirements on tribal governments; thus, 
Executive Order 13175 does not apply to this action.

G. Executive Order 13045: Protection of Children From Environmental 
Health and Safety Risks

    EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997) 
as applying to those regulatory actions that concern health or safety 
risks, such that the analysis required under section 5-501 of the Order 
has the potential to

[[Page 31320]]

influence the regulation. This action is not subject to EO 13045 
because the final rule is based solely on technology performance.

H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

    This direct final rule 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.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law 104-113 (15 U.S.C. 272 note) 
directs EPA to use voluntary consensus standards in its regulatory 
activities, unless to do so would be inconsistent with applicable law 
or otherwise impractical. Voluntary consensus standards are technical 
standards (e.g., materials specifications, test methods, sampling 
procedures, and business practices) that are developed or adopted by 
voluntary consensus standards bodies. NTTAA directs EPA to provide 
Congress, through OMB, explanations when the Agency decides not to use 
available and applicable voluntary consensus standards.

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.
    EPA has determined that this direct final rule would not have 
disproportionately high and adverse human health or environmental 
effects on minority or low-income populations because this rule will 
not change the level of health protection the rule provides to all 
affected populations, including any minority or low-income population.

K. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801, et seq., as added by 
the Small Business Regulatory Enforcement Fairness Act of 1996, 
generally provides that before a rule may take effect, the agency 
promulgating the rule must submit a rule report, which includes a copy 
of the rule, to each House of Congress and to the Comptroller General 
of the United States. EPA will submit a report containing this direct 
final rule and other required information to the U.S. Senate, the U.S. 
House of Representatives, and the Comptroller General of the United 
States prior to publication of this final rule in the Federal Register. 
A major rule cannot take effect until 60 days after it is published in 
the Federal Register. This direct final rule is not a ``major rule'' as 
defined by 5 U.S.C. 804(2). This direct final rule will be effective on 
September 16, 2010.

List of Subjects in 40 CFR Part 63

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Hazardous substances, Intergovernmental 
relations, Reporting and recordkeeping requirements.

    Dated: May 27, 2010.
Lisa P. Jackson,
Administrator.

0
For the reasons set out in the preamble, title 40, chapter I, part 63, 
subpart CCCCCCC of the Code of Federal Regulations is amended as 
follows:

PART 63--[AMENDED]

0
1. The authority citation for part 63 continues to read as follows:

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

Subpart CCCCCCC--[Amended]

0
2. Section 63.11607 is amended by revising the definition of Material 
containing HAP to read as follows:


Sec.  63.11607  What definitions apply to this subpart?

* * * * *
    Material containing HAP means a material containing benzene, 
methylene chloride, or compounds of cadmium, chromium, lead, and/or 
nickel, in amounts greater than or equal to 0.1 percent by weight for 
carcinogens, as defined by the Occupational Safety and Health 
Administration at 29 CFR 1910.1200(d)(4), or 1.0 percent by weight for 
non-carcinogens, as shown in formulation data provided by the 
manufacturer or supplier, such as the Material Safety Data Sheet for 
the material. Benzene and methylene chloride are volatile HAP. 
Compounds of cadmium, chromium, lead and/or nickel are metal HAP.
* * * * *
[FR Doc. 2010-13384 Filed 6-2-10; 8:45 am]
BILLING CODE 6560-50-P


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