[Federal Register Volume 77, Number 246 (Friday, December 21, 2012)]
[Rules and Regulations]
[Pages 75739-75764]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-30698]



[[Page 75739]]

Vol. 77

Friday,

No. 246

December 21, 2012

Part III





Environmental Protection Agency





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40 CFR Part 63





 National Emission Standards for Hazardous Air Pollutants for Chemical 
Manufacturing Area Sources; Final Rule

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

[[Page 75740]]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 63

[EPA-HQ-OAR-2008-0334; FRL-9725-9]
RIN 2060-AQ89


National Emission Standards for Hazardous Air Pollutants for 
Chemical Manufacturing Area Sources

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule; lift stay of final rule.

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SUMMARY: On January 30, 2012, the EPA proposed revisions to several 
provisions of the final National Emission Standards for Hazardous Air 
Pollutants for Chemical Manufacturing Area Sources. The proposed 
revisions were made, in part, in response to a petition for 
reconsideration received by the Administrator following the 
promulgation of the October 29, 2009, final rule (``2009 final rule''). 
In this action, the EPA is finalizing those amendments, lifting the 
stay of the title V permit requirement issued on March 14, 2011, and 
lifting the stay of the final rule issued on October 25, 2012. In 
addition, this final action includes revisions to the EPA's approach 
for addressing malfunctions and standards applicable during startup and 
shutdown periods. This final action also includes amendments and 
technical corrections to the final rule to clarify applicability and 
compliance issues raised by stakeholders subject to the 2009 final 
rule. The revisions to the final rule do not reduce the level of 
environmental protection or emissions control on sources regulated by 
this rule but provide flexibility and clarity to improve 
implementation. This action also extends the compliance date for 
existing sources and the EPA's final response to all issues raised in 
the petition for reconsideration.

DATES: The stay of subpart VVVVVV and the stay of paragraph (e) of 40 
CFR 63.11494 are lifted as of December 21, 2012. This final rule is 
effective on December 21, 2012.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. EPA-HQ-OAR-2008-0334. All documents in the docket are 
listed in the www.regulations.gov index. Although listed in the index, 
some information is not publicly available, e.g., confidential business 
information or other information whose disclosure is restricted by 
statute. Certain other material, such as copyrighted material, will be 
publicly available only in hard copy. Publicly available docket 
materials are available either electronically in www.regulations.gov or 
in hard copy at the EPA Docket Center, EPA West Building, Room 3334, 
1301 Constitution Ave. NW., Washington, DC. The Public Reading Room is 
open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding 
legal holidays. The telephone number for the Public Reading Room is 
(202) 566-1744, and the telephone number for the Docket Center is (202) 
566-1742.

FOR FURTHER INFORMATION CONTACT: Mr. Nick Parsons, Sector Policies and 
Programs Division (E143-01), Office of Air Quality Planning and 
Standards, U.S. Environmental Protection Agency, Research Triangle 
Park, North Carolina 27711; telephone number: (919) 541-5372; fax 
number: (919) 541-0246; email address: parsons.nick@epa.gov.

SUPPLEMENTARY INFORMATION:
    Acronyms and Abbreviations. Several acronyms and terms used to 
describe industrial processes are included in this final action. While 
this may not be an exhaustive list, to ease the reading of this 
preamble and for reference purposes, the following terms and acronyms 
are defined here:

CAA Clean Air Act
CEMS Continuous Emission Monitoring System
CFR Code of Federal Regulations
CMAS Chemical Manufacturing Area Source
CMPU Chemical Manufacturing Process Unit
COMS Continuous Opacity Monitoring System
CPMS Continuous Parameter Monitoring System
EPA Environmental Protection Agency
FESOP Federally Enforceable State Operating Permit
GACT Generally Available Control Technology
HAP Hazardous Air Pollutants
HON National Emission Standards for Organic Hazardous Air Pollutants 
From the Synthetic Organic Chemical Manufacturing Industry
ICR Information Collection Request
lb/yr Pounds Per Year
MACT Maximum Achievable Control Technology
MON National Emission Standards for Hazardous Air Pollutants: 
Miscellaneous Organic Chemical Manufacturing
MSDS Material Safety Data Sheet
NESHAP National Emissions Standards for Hazardous Air Pollutants
NOCS Notice of Compliance Status
NTTAA National Technology Transfer and Advancement Act
OECA Office of Enforcement and Compliance Assurance
OMB Office of Management and Budget
ppmv Parts Per Million by Volume
RCRA Resource Conservation and Recovery Act
SARU Sulfuric Acid Regeneration Unit
SSM Startup, Shutdown and Malfunction
tpy Tons Per Year
TTN Technology Transfer Network
UMRA Unfunded Mandates Reform Act
VCS Voluntary Consensus Standards
VOC Volatile Organic Compound
WWW World Wide Web

    Organization of This Document. The following outline is provided to 
aid in locating information in this preamble.

I. General Information
    A. Executive Summary
    B. Does this action apply to me?
    C. How do I obtain a copy of this document and other related 
information?
    D. Judicial Review
II. Background Information
III. Summary of Final Rule Revisions
    A. Applicability of the Family of Materials Concept
    B. Title V Permitting Requirements
    C. Requirements When Other Rules Overlap With the Final Rule
    D. Requirement To Conduct Direct and Proximal Leak Inspections
    E. Requirement for Covers or Lids on Process Vessels
    F. Requirement To Conduct Leak Inspections When Equipment Is in 
HAP Service
    G. Requirements During Periods of Startup, Shutdown and 
Malfunction
    H. Requirements for Metal HAP Process Vents
    I. Extension of the Compliance Date
    J. Technical Corrections
IV. Summary of Major Changes Since Proposal
    A. Title V Permitting Requirements
    B. Requirement for Covers or Lids on Process Vessels
    C. Requirement To Conduct Leak Inspections When Equipment Is in 
HAP Service
    D. Requirements for Metal HAP Process Vents
    E. Extension of the Compliance Date
    F. Technical Corrections
V. Summary of Comments and Responses
    A. Title V Permitting Requirements
    B. Requirements When Other Rules Overlap With the Final Rule
    C. Requirement To Conduct Direct and Proximal Leak Inspections
    D. Requirement for Covers or Lids on Process Vessels
    E. Requirement To Conduct Leak Inspections When Equipment Is in 
HAP Service
    F. Applicability of the Family of Materials Concept
    G. Requirements for Metal HAP Process Vents
    H. Compliance Date
    I. Technical Corrections
VI. What other actions are we taking?
    A. De Minimis Exemption
    B. Research and Development Interpretation
    C. Pollution Prevention Alternative
VII. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review and 
Executive Order 13563: Improving Regulation and Regulatory Review

[[Page 75741]]

    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination With 
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children From 
Environmental Health Risks and Safety Risks
    H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use
    I. National Technology Transfer and Advancement Act
    J. Executive Order 12898: Federal Actions To Address 
Environmental Justice in Minority Populations and Low-Income 
Populations
    K. Congressional Review Act

A red-line version of the regulatory language that incorporates the 
changes in this action is available in the docket.

I. General Information

A. Executive Summary

1. Purpose of the Regulatory Action
    The EPA issued the NESHAP for the nine chemical manufacturing area 
source categories (40 CFR part 63, subpart VVVVVV) on October 29, 2009 
(74 FR 56008). Pursuant to CAA section 307(d)(7)(B), the EPA received a 
petition for reconsideration on February 12, 2010. The petitioners 
requested that the EPA reconsider six provisions in the final rule. In 
response to this petition, the EPA proposed revisions to several 
provisions of the final rule on January 30, 2012 (77 FR 4522).
    This final action addresses the public comments on the proposal and 
finalizes amendments to subpart VVVVVV. The amendments relate to issues 
raised in the petition for reconsideration and also include technical 
corrections that clarify applicability and compliance issues of the 
final rule. This action also lifts the stay of the title V permit 
requirement that was issued on March 14, 2011 (76 FR 13514) and the 
stay of the final rule that was issued on October 25, 2012 (77 FR 
65135). This action also provides an extension of the compliance date 
for existing sources.
2. Summary of Major Provisions
    The revised final rule lifts the stay on the title V permitting 
requirement and requires that certain chemical manufacturing synthetic 
area sources that installed controls obtain a title V permit. The EPA 
continues to believe that the additional protections provided by a 
title V permit are warranted for the sources subject to title V 
pursuant to this rule for the reasons stated in the rulemaking record. 
See 74 FR 56013-56014, 56034-56039 (October 29, 2009); 77 FR 4525-4527 
(January 30, 2012).
    The EPA is also finalizing several revisions to the final rule to 
improve clarity and provide facilities with greater flexibility. The 
leak inspection requirements are revised such that facilities conduct 
quarterly sensory inspections instead of ``direct and proximal 
(thorough)'' inspections, and that leak inspections may be conducted 
while equipment is in VOC service instead of in organic HAP service. 
The final rule also allows facilities to remove the required cover or 
lid on a process vessel when access is required during manual 
operations. Several definitions, including ``in organic HAP service,'' 
``in metal HAP service,'' ``metal HAP process vent'' and ``family of 
materials'' are clarified and/or revised in the final rule. The EPA is 
also finalizing several technical corrections. Finally, the EPA is 
extending the compliance date for existing sources until March 21, 
2013.
3. Costs and Emissions Reductions
    The costs and emissions reductions associated with this rule have 
not changed from the October 29, 2009, final rule. Table 1 below 
summarizes the costs and emissions reductions of 40 CFR part 63, 
subpart VVVVVV. See section VI of the preamble to the October 29, 2009 
final rule (74 FR 56039-56040) for further discussion of the costs and 
impacts.

            Table 1--Summary of the Costs and Emissions Reductions of 40 CFR Part 63, Subpart VVVVVV
----------------------------------------------------------------------------------------------------------------
                                                                                                     Emissions
                           Requirement                             Capital costs    Annualized      reductions
                                                                        ($)        costs  ($/yr)       (tpy)
----------------------------------------------------------------------------------------------------------------
Batch process vents.............................................        $390,000        $370,000             <43
Continuous process vents........................................         170,000          85,000             <29
Metal HAP process vents.........................................         690,000       1,700,000              41
Storage tanks...................................................          85,000          15,000               5
Heat exchange systems...........................................         640,000         280,000              79
Transfer operations.............................................          75,000          10,000               1
Wastewater systems..............................................         210,000          79,000              51
Management practices............................................         540,000         685,000             N/A
                                                                 -----------------------------------------------
    Total.......................................................       2,800,000       3,200,000             248
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B. Does this action apply to me?

    The regulated categories and entities potentially affected by this 
action include:

[[Page 75742]]



------------------------------------------------------------------------
                                                   Examples of regulated
       Industry category          NAICS code \1\         entities
------------------------------------------------------------------------
Chemical Manufacturing.........             325   Chemical manufacturing
                                                   area sources that use
                                                   as feedstock,
                                                   generate as byproduct
                                                   or produce as
                                                   product, any of the
                                                   hazardous air
                                                   pollutants (HAP)
                                                   subject to this
                                                   subpart except for:
                                                   (1) Processes
                                                   classified in NAICS
                                                   Code 325222, 325314
                                                   or 325413; (2)
                                                   processes subject to
                                                   standards for other
                                                   listed area source
                                                   categories \2\ in
                                                   NAICS Code 325; (3)
                                                   certain fabricating
                                                   operations; (4)
                                                   manufacture of
                                                   photographic film,
                                                   paper and plate where
                                                   material is coated or
                                                   contains chemicals
                                                   (but the manufacture
                                                   of the photographic
                                                   chemicals is
                                                   regulated); and (5)
                                                   manufacture of
                                                   radioactive elements
                                                   or isotopes, radium
                                                   chloride, radium
                                                   luminous compounds,
                                                   strontium and
                                                   uranium.
------------------------------------------------------------------------
\1\ North American Industry Classification System.
\2\ The source categories in NAICS Code 325 for which other area source
  standards apply are: Acrylic Fibers/Modacrylic Fibers Production,
  Chemical Preparation, Carbon Black, Chemical Manufacturing: Chromium
  Compounds, Lead Oxide Production, Polyvinyl Chloride and Copolymers
  Production, Paint and Allied Coatings and Mercury Cell Chlor-Alkali
  Manufacturing.

    This table is not intended to be exhaustive, but rather provides a 
guide for readers regarding entities likely to be regulated by this 
reconsideration action. To determine whether your facility may be 
affected by this final rule, you should examine the applicability 
criteria in 40 CFR 63.11494 of subpart VVVVVV (National Emission 
Standards for Hazardous Air Pollutants for Chemical Manufacturing Area 
Sources). If you have any questions regarding the applicability of the 
final rule to a particular entity, consult either the air permit 
authority for the entity or your EPA regional representative, as listed 
in 40 CFR 63.13.

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

    Docket. The docket number for this action and the final rule (40 
CFR part 63, subpart VVVVVV) is Docket ID No. EPA-HQ-OAR-2008-0334.
    World Wide Web (WWW). In addition to being available in the docket, 
an electronic copy of this action is available on the WWW through the 
Technology Transfer Network (TTN) Web site. Following signature, a copy 
of this notice will be posted on the TTN's policy and guidance page for 
newly proposed or promulgated rules at http://www.epa.gov/ttn/oarpg. 
The TTN provides information and technology exchange in various areas 
of air pollution control.

D. Judicial Review

    Under section 307(b)(1) of the Clean Air Act (CAA), judicial review 
of this final rule is available only by filing a petition for review in 
the United States Court of Appeals for the District of Columbia Circuit 
by February 19, 2013. Under section 307(b)(2) of the CAA, the 
requirements established by this final rule may not be challenged 
separately in any civil or criminal proceedings brought by the EPA to 
enforce these requirements. Section 307(d)(7)(B) of the CAA further 
provides that ``[o]nly an objection to a rule or procedure which was 
raised with reasonable specificity during the period for public comment 
(including any public hearing) may be raised during judicial review.'' 
This section also provides a mechanism for the EPA to convene a 
proceeding for reconsideration, ``[i]f the person raising an objection 
can demonstrate to EPA that it was impracticable to raise such 
objection within [the period for public comment] or if the grounds for 
such objection arose after the period for public comment (but within 
the time specified for judicial review) and if such objection is of 
central relevance to the outcome of this rule.'' Any person seeking to 
make such a demonstration to us should submit a Petition for 
Reconsideration to the Office of the Administrator, U.S. EPA, Room 
3000, Ariel Rios Building, 1200 Pennsylvania Ave. NW., Washington, DC 
20460, with a copy to both the person listed in the preceding FOR 
FURTHER INFORMATION CONTACT section, and the Associate General Counsel 
for the Air and Radiation Law Office, Office of General Counsel (Mail 
Code 2344A), U.S. EPA, 1200 Pennsylvania Ave. NW., Washington, DC 
20460.

II. Background Information

    Section 112(d) of the CAA requires the EPA to establish national 
emission standards for hazardous air pollutants (NESHAP) for both major 
and area sources of HAP that are listed for regulation under CAA 
section 112(c). A major source is any stationary source that emits or 
has the potential to emit 10 tons per year (tpy) or more of any single 
HAP or 25 tpy or more of any combination of HAP. An area source is a 
stationary source that is not a major source.
    On October 29, 2009 (74 FR 56008), the EPA issued the NESHAP for 
the nine chemical manufacturing area source (CMAS) categories that were 
listed pursuant to CAA sections 112(c)(3) and 112(k)(3)(B). The nine 
area source categories are Agricultural Chemicals and Pesticides 
Manufacturing, Cyclic Crude and Intermediate Production, Industrial 
Inorganic Chemical Manufacturing, Industrial Organic Chemical 
Manufacturing, Inorganic Pigments Manufacturing, Miscellaneous Organic 
Chemical Manufacturing, Plastic Materials and Resins Manufacturing, 
Pharmaceutical Production and Synthetic Rubber Manufacturing.
    Section 112(k)(3)(B) of the CAA directs the EPA to identify at 
least 30 HAP that, as a result of emissions from area sources, pose the 
greatest threat to public health in the largest number of urban areas. 
The EPA implemented this provision in 1999 in the Integrated Urban Air 
Toxics Strategy (64 FR 38715, July 19, 1999) (Strategy). Specifically, 
in the Strategy, the EPA identified 30 HAP that pose the greatest 
potential health threat in urban areas and these HAP are referred to as 
the ``30 urban HAP.'' Section 112(c)(3) of the CAA requires the EPA to 
list sufficient categories or subcategories of area sources to ensure 
that area sources representing 90 percent of the area source emissions 
of the 30 urban HAP are subject to regulation. The EPA completed this 
requirement in 2011 (76 FR 15308, March 21, 2011). The nine CMAS 
categories were listed to satisfy this requirement for 15 of the 30 
urban HAP.\1\ Pursuant to CAA section 112(d)(5), the NESHAP reflect 
generally available control technologies or management practices 
(GACT). The NESHAP apply to each chemical manufacturing process unit 
(CMPU) that uses, generates or produces any of the 15 urban HAP for 
which the area source categories were listed (collectively

[[Page 75743]]

``chemical manufacturing urban HAP'' or ``Table 1 HAP'').
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    \1\ The 15 urban HAP for which the chemical manufacturing area 
source categories were listed under CAA section 112(c) are 
identified in table 1 of the final rule.
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    On February 12, 2010, following promulgation of the 2009 final 
rule, the EPA received a petition for reconsideration from the American 
Chemistry Council and the Society of Chemical Manufacturers & 
Affiliates (``Petitioners''). A copy of this petition is provided in 
the docket (see Docket Item No. EPA-HQ-OAR-2008-0334-0098). 
Petitioners, pursuant to CAA section 307(d)(7)(B), requested that the 
EPA reconsider six provisions in the rules: (1) The requirement that 
major sources that installed air pollution controls after 1990, and, as 
a result, became area sources, obtain a title V permit; (2) the 
requirement that sources subject to the final rule and any overlapping 
provision in another rule comply with each provision independently, or 
with the most stringent requirements of each rule; (3) the requirement 
that leak inspections include direct and proximal (thorough) inspection 
of all areas of potential leak within the CMPU; (4) the requirement 
that process vessels in HAP service be equipped with a cover or lid 
that must be in place at all times when the vessel contains HAP, except 
for material addition and sampling; (5) the requirement to conduct leak 
inspections while the equipment is in HAP service; and (6) the 
requirement that a CMPU include all equipment and processes used to 
produce a ``family of materials.'' \2\ The arguments in support of 
these requests are provided in the petition and in the preamble to the 
reconsideration proposed rule revisions (77 FR 4525-4530, January 30, 
2012). Petitioners also requested that the EPA stay the effectiveness 
of these provisions of the rule to save many facilities from needlessly 
having to file the initial notifications required by the final rule.
---------------------------------------------------------------------------

    \2\ The petition also requested that the EPA take comment on 
three additional issues: (1) A de minimis exemption for all sources; 
(2) a revision of the definition of laboratory analysis unit to 
include commercial development activities; and (3) a pollution 
prevention alternative. The EPA did not seek comment on these issues 
in reconsideration as explained below in section VI of this 
preamble.
---------------------------------------------------------------------------

    On June 15, 2010, the EPA sent a letter to the Petitioners 
informing them that the EPA was granting the request for 
reconsideration on at least one of the issues raised in the petition, 
and that the agency would identify the specific issue or issues for 
which it was granting reconsideration in the reconsideration notice 
that would be published in the Federal Register. The letter also 
indicated that the EPA considered the request for a stay to be moot 
because the due date for initial notifications had already passed.
    On January 30, 2012, the EPA published proposed rule revisions that 
included six provisions for which reconsideration was requested. 
Specifically, the EPA: (1) Proposed to narrow the requirement for 
sources to obtain a title V permit to only those synthetic area sources 
that installed a federally-enforceable control device on an affected 
CMPU; (2) sought comment on the overlapping provisions requirement; (3) 
proposed to remove the requirement to conduct direct and proximal 
(thorough) leak inspections; (4) proposed to allow sources to remove 
the cover or lid on a process vessel when manual access is necessary; 
(5) sought comment on allowing leak inspections to be conducted when 
equipment is in volatile organic compound (VOC) service; and (6) 
proposed to clarify the family of materials concept. In addition, the 
EPA also proposed clarifying revisions to the requirements for metal 
HAP process vents, the addition of the affirmative defense provisions 
and numerous technical corrections.
    On October 25, 2012, the EPA published a 60-day stay of the final 
CMAS rule (77 FR 65135). The compliance date for the final CMAS rule 
was October 29, 2012, and it was the EPA's expectation that the 
reconsideration would be finalized in advance of that date. However, 
the EPA was still in the process of finalizing the reconsideration 
action. For that reason, a short stay of the final rule was appropriate 
to allow the EPA the time necessary to complete the reconsideration 
action.

III. Summary of Final Rule Revisions

A. Applicability of the Family of Materials Concept

    The final rule revises the definition of ``family of materials'' in 
40 CFR 63.11502(a) by removing the definition that was incorporated by 
reference to the Miscellaneous Organic Chemical Manufacturing NESHAP 
(MON) and replacing it with a definition in 40 CFR 63.11502(b) specific 
to the CMAS rule. The definition clarifies that the family of materials 
concept applies only to those products whose production involves 
emission of the same Table 1 HAP.

B. Title V Permitting Requirements

    The revised final rule requires synthetic area sources that 
installed a federally-enforceable control device on at least one 
affected CMPU to obtain a title V permit. The final rule lifts the stay 
on the title V permitting requirement (76 FR 13514, March 14, 2011) and 
requires such sources to submit their title V permit application by 
December 21, 2013 or on such earlier date as the title V permitting 
authority requires.

C. Requirements When Other Rules Overlap With the Final Rule

    The revised final rule requires that facilities comply with the 
most stringent requirements when there are overlapping provisions in 
the CMAS rule and other NESHAP. Sources are required to determine which 
of the overlapping requirements applicable to the source are more 
stringent.

D. Requirement To Conduct Direct and Proximal Leak Inspections

    The revised final rule removes the requirement in 40 CFR 
63.11495(a)(3) that facilities conduct a ``direct and proximal 
(thorough)'' leak inspection, and instead requires that facilities 
conduct quarterly sensory inspections of all equipment and process 
vessels, provided that these methods are capable of detecting leaks 
within the CMPU (i.e., the inspector is within sufficient proximity to 
the equipment that leaky equipment can be detected by sight, sound or 
smell). The revised final rule also allows affected facilities to 
conduct leak inspections of equipment in VOC service instead of in 
organic HAP service, provided that leaks can be detected while in VOC 
service. A CMPU that contains metal HAP as particulate must conduct 
leak inspections while the equipment is in metal HAP service.

E. Requirement for Covers or Lids on Process Vessels

    The final rule requires in 40 CFR 63.11495(a)(1) that a cover or 
lid must be in place and closed at all times when a process vessel is 
in organic HAP service or in metal HAP service, except when access is 
required during manual operations such as material addition, removal, 
inspection, sampling and cleaning. Process vessels containing metal HAP 
that are in a liquid solution or other form that will not result in 
particulate emissions of metal HAP (e.g., metal HAP that is in ingot, 
paste, slurry or moist pellet form or other form) are not subject to 
this requirement.
    The definitions of ``in organic HAP service'' and ``in metal HAP 
service'' in 40 CFR 63.11502(b) have been revised to state that a 
process vessel is no longer considered to be in organic HAP service or 
in metal HAP service once it has been emptied to the extent practicable 
and any cleaning has been completed.

[[Page 75744]]

F. Requirement To Conduct Leak Inspections When Equipment Is in HAP 
Service

    The final rule requires in 40 CFR 63.11495(a)(3) that leak 
inspections be conducted while the subject CMPU is operating in organic 
HAP service or in metal HAP service. This provision also allows CMPU 
that do not contain metal HAP as particulate to conduct leak 
inspections when the subject CMPU is in VOC service, provided that 
leaks can be detected while in VOC service. A CMPU that contains metal 
HAP as particulate must conduct leak inspections while the equipment is 
in metal HAP service.

G. Requirements During Periods of Startup, Shutdown and Malfunction

    The EPA is adding to the final rule an affirmative defense to civil 
penalties for violations of emission standards that are caused by 
malfunctions. During the comment period of the October 6, 2008, 
proposed rule (``2008 proposal''), the United States Court of Appeals 
for the District of Columbia Circuit vacated two provisions in the 
EPA's CAA section 112 regulations governing the emissions of HAP during 
periods of startup, shutdown and malfunction (SSM). Sierra Club v. EPA, 
551 F.3d 1019 (D.C. Cir. 2008), cert. denied, 130 S. Ct. 1735 (U.S. 
2010). Specifically, the Court vacated the SSM exemption contained in 
40 CFR 63.6(f)(1) and 40 CFR 63.6(h)(1), that are part of a regulation, 
commonly referred to as the ``General Provisions Rule,'' that the EPA 
promulgated under section 112 of the CAA. When incorporated into CAA 
section 112(d) regulations for specific source categories, the 
exemption in these two provisions exempts sources from the requirement 
to comply with otherwise applicable CAA section 112(d) emission 
standards during periods of SSM.
    The 2008 proposal contained references to the vacated provisions. 
Because the provisions were vacated, we removed the references in the 
2009 final rule, and, consistent with Sierra Club v. EPA, established 
standards that applied at all times. In the vacated provisions' place, 
we included alternative standards for startup and shutdown periods for 
continuous process vents. Table 3 to 40 CFR part 63, subpart VVVVVV. 
For batch process vents, we determined that startup and shutdown 
periods were already accounted for in the existing standard and we 
determined that the remaining equipment did not have periods of startup 
and shutdown. See 74 FR 56013, October 29, 2009. We declined to 
establish a different standard for malfunctions, as suggested by 
commenters. See 74 FR 56033, October 29, 2009.
    Further, as explained in the preamble to the 2009 final rule (74 FR 
56033, October 29, 2009), periods of startup, normal operations and 
shutdown are all predictable and routine aspects of a source's 
operations. However, by contrast, malfunction is defined as a ``sudden, 
infrequent, and not reasonably preventable failure of air pollution 
control and monitoring equipment, process equipment or a process to 
operate in a normal or usual manner * * *'' (40 CFR 63.2). The EPA has 
determined that CAA section 112 does not require that emissions that 
occur during periods of malfunction be factored into development of CAA 
section 112 standards. There is nothing in section 112 that directs the 
agency to consider malfunctions in determining the level ``achieved'' 
by the best performing or best controlled sources when setting emission 
standards. Moreover, while the EPA accounts for variability in setting 
emissions standards consistent with the section 112 case law, nothing 
in that case law requires the agency to consider malfunctions as part 
of that analysis. Section 112 uses the concept of ``best controlled'' 
and ``best performing'' unit in defining the level of stringency that 
section 112 performance standards must meet. Applying the concept of 
``best controlled'' or ``best performing'' to a unit that is 
malfunctioning presents significant difficulties, as malfunctions are 
sudden and unexpected events. Similarly, although standards for area 
sources are not required to be set based on ``best performers,'' we 
believe that what is ``generally available'' should not be based on 
periods in which there is a ``failure to operate.''
    Further, accounting for malfunctions would be difficult, if not 
impossible, given the myriad different types of malfunctions that can 
occur across all sources in the categories and given the difficulties 
associated with predicting or accounting for the frequency, degree and 
duration of various malfunctions that might occur. As such, the 
performance of units that are malfunctioning is not ``reasonably'' 
foreseeable. See, e.g., Sierra Club v. EPA, 167 F. 3d 658, 662 (D.C. 
Cir. 1999) (the EPA typically has wide latitude in determining the 
extent of data-gathering necessary to solve a problem. We generally 
defer to an agency's decision to proceed on the basis of imperfect 
scientific information, rather than to ``invest the resources to 
conduct the perfect study.''). See also, Weyerhaeuser v. Costle, 590 
F.2d 1011, 1058 (D.C. Cir. 1978) (``In the nature of things, no general 
limit, individual permit, or even any upset provision can anticipate 
all upset situations. After a certain point, the transgression of 
regulatory limits caused by `uncontrollable acts of third parties,' 
such as strikes, sabotage, operator intoxication or insanity, and a 
variety of other eventualities, must be a matter for the administrative 
exercise of case-by-case enforcement discretion, not for specification 
in advance by regulation.''). In addition, the goal of a best 
controlled or best performing source is to operate in such a way as to 
avoid malfunctions of the source and accounting for malfunctions could 
lead to standards that are significantly less stringent than levels 
that are achieved by a well-performing non-malfunctioning source. The 
EPA's approach to malfunctions is consistent with section 112 and is a 
reasonable interpretation of the statute.
    In the event that a source fails to comply with the applicable CAA 
section 112(d) standards as a result of a malfunction event, the EPA 
would determine an appropriate response based on, among other things, 
the good faith efforts of the source to minimize emissions during 
malfunction periods, including preventative and corrective actions, as 
well as root cause analyses to ascertain and rectify excess emissions. 
The EPA would also consider whether the source's failure to comply with 
the CAA section 112(d) standard was, in fact, ``sudden, infrequent, not 
reasonably preventable'' and was not instead ``caused in part by poor 
maintenance or careless operation.'' 40 CFR 63.2 (definition of 
malfunction).
    Finally, the EPA recognizes that even equipment that is properly 
designed and maintained can sometimes fail, and that such failure can 
sometimes cause a violation of the relevant emission standard. (See, 
e.g., State Implementation Plans: Policy Regarding Excessive Emissions 
During Malfunctions, Startup, and Shutdown (September 20, 1999); Policy 
on Excess Emissions During Startup, Shutdown, Maintenance, and 
Malfunctions (February 15, 1983)).
    The EPA is therefore adding to the final rule an affirmative 
defense to civil penalties for violations of emission standards that 
are caused by malfunctions, consistent with other recent actions by the 
EPA (e.g., the NESHAP for Group I Polymers and Resins and the NESHAP 
for Pharmaceuticals Production. 76 FR 22566 (April 21, 2011)). See 40 
CFR 63.11502 (defining ``affirmative

[[Page 75745]]

defense'' to mean, in the context of an enforcement proceeding, a 
response or defense put forward by a defendant, regarding which the 
defendant has the burden of proof, and the merits of which are 
independently and objectively evaluated in a judicial or administrative 
proceeding). We also have added other regulatory provisions to specify 
the elements that are necessary to establish this affirmative defense; 
the source must prove by a preponderance of the evidence that it has 
met all of the elements set forth in 40 CFR 63.11501(e). See 40 CFR 
22.24. The criteria ensure that the affirmative defense is available 
only where the event that causes a violation of the emission standard 
meets the narrow definition of malfunction in 40 CFR 63.2 (sudden, 
infrequent, not reasonable preventable and not caused by poor 
maintenance and or careless operation). For example, to successfully 
assert the affirmative defense, the source must prove by a 
preponderance of the evidence that the violations ``[w]ere caused by a 
sudden, infrequent, and unavoidable failure of air pollution control 
and monitoring equipment, process equipment, or a process to operate in 
a normal or usual manner* * *.'' The criteria also are designed to 
ensure that steps are taken to correct the malfunction, to minimize 
emissions in accordance with CAA section 63.11501(e), and to prevent 
future malfunctions. For example, the source must prove by a 
preponderance of the evidence that ``[r]epairs were made as 
expeditiously as possible when a violation occurred* * *'' and that 
``[a]ll possible steps were taken to minimize the impact of the 
violation on ambient air quality, the environment and human health* * 
*.'' In any judicial or administrative proceeding, the Administrator 
may challenge the assertion of the affirmative defense, and, if the 
respondent has not met its burden of proving all of the requirements in 
the affirmative defense, appropriate penalties may be assessed in 
accordance with section 113 of the CAA (see also 40 CFR 22.77).
    The EPA included an affirmative defense in this final rule in an 
attempt to balance a tension, inherent in many types of air regulation, 
to ensure adequate compliance while simultaneously recognizing that 
despite the most diligent of efforts, emission limits may be violated 
under circumstances beyond the control of the source. The EPA must 
establish emission standards that ``limit the quantity, rate, or 
concentration of emissions of air pollutants on a continuous basis.'' 
42 U.S.C. 7602(k) (defining ``emission limitation and emission 
standard''). See, generally, Sierra Club v. EPA, 551 F.3d 1019, 1021 
(D.C. Cir. 2008). Thus, the EPA is required to ensure that section 112 
emissions limitations are continuous. The affirmative defense for 
malfunction events meets this requirement by ensuring that even where 
there is a malfunction, the emission limitation is still enforceable 
through injunctive relief. See generally, Luminant Generation Co. LLC 
v. United States EPA, 2012 U.S. App. LEXIS 21223 (5th Cir. Oct. 12, 
2012) (upholding EPA's approval of affirmative defense provisions in a 
CAA State Implementation Plan). While ``continuous'' limitations, on 
the one hand, are required, there is also case law indicating that, in 
many situations, it is appropriate for the EPA to account for the 
practical realities of technology. For example, in Essex Chemical v. 
Ruckelshaus, 486 F.2d 427, 433 (D.C. Cir. 1973), the DC Circuit 
acknowledged that, in setting standards under CAA section 111, 
``variant provisions'' such as provisions allowing for upsets during 
startup, shutdown and equipment malfunction ``appear necessary to 
preserve the reasonableness of the standards as a whole and that the 
record does not support the `never to be exceeded' standard currently 
in force.'' See also, Portland Cement Association v. Ruckelshaus, 486 
F.2d 375 (D.C. Cir. 1973). Though intervening case law such as Sierra 
Club v. EPA and the CAA 1977 amendments call into question the 
relevance of these cases today, they support the EPA's view that a 
system that incorporates some level of flexibility is reasonable. The 
affirmative defense simply provides for a defense to civil penalties 
for violations that are proven to be beyond the control of the source. 
By incorporating an affirmative defense, the EPA has formalized its 
approach to upset events. In a Clean Water Act setting, the Ninth 
Circuit required this type of formalized approach when regulating 
``upsets beyond the control of the permit holder.'' Marathon Oil Co. v. 
EPA, 564 F.2d 1253, 1272-73 (9th Cir. 1977). See also, Mont. Sulphur & 
Chem. Co. v. EPA, 2012 U.S. App. LEXIS 1056 (January 19, 2012) 
(rejecting industry argument that reliance on the affirmative defense 
was not adequate). But see, Weyerhaeuser Co. v. Costle, 590 F.2d 1011, 
1057-58 (D.C. Cir. 1978) (holding that an informal approach is 
adequate). The affirmative defense provisions give the EPA the 
flexibility to both ensure that its emission limitations are 
``continuous'' as required by 42 U.S.C. 7602(k), and account for 
unplanned upsets and thus support the reasonableness of the standard as 
a whole.
    In addition to the affirmative defense provisions described above, 
we are also making several changes throughout the rule and in Table 9 
(the table that specifies applicability of General Provisions to 
subpart VVVVVV of 40 CFR part 63) to specify applicable requirements 
during periods of startup and shutdown and periods of malfunction. For 
example, we are adding new paragraphs in 40 CFR 63.11501(c)(1)(vii) and 
(viii) that would require records of the occurrence and duration of 
malfunctions, as well as records of actions taken to minimize emissions 
during these periods and to fix malfunctioning equipment. We are also 
adding a paragraph in 40 CFR 63.11501(d)(8) that would require 
reporting of information related to each malfunction. Table 9 in the 
final rule states that 63.6(e)(1)(i) does not apply to subpart VVVVVV. 
We are also adding a new paragraph in 40 CFR 63.11495(d) that specifies 
the general duty to minimize emissions applies at all times. In 
addition to the changes in the text of the rule, we are revising the 
entries for 40 CFR 63.6(e)(1)(i), 63.10(b)(2) and 63.10(d)(5) to 
reference the new paragraphs in 40 CFR 63.11495(d), 63.11501(c) and 
63.11501(d). Finally, we are revising Table 9 to state that the 
performance testing requirements in 40 CFR 63.7(e)(1) do not apply. The 
comments to Table 9 for that provision identify the location of the 
applicable performance testing requirements for sources subject to the 
CMAS rule.

H. Requirements for Metal HAP Process Vents

    The revised final rule defines a ``metal HAP process vent'' to 
include only those streams which contain at least 50 parts per million 
by volume (ppmv) metal HAP. Process vents from CMPU that only contain 
metal HAP in a liquid solution or other form that will not result in 
particulate emissions of metal HAP (e.g., metal HAP that is in ingot, 
paste, slurry or moist pellet form or other form) are not required to 
comply with the metal HAP process vent requirements.

I. Extension of the Compliance Date

    The EPA is extending the compliance date for existing sources until 
March 21, 2013.

J. Technical Corrections

    The final rule provides several technical corrections. These

[[Page 75746]]

amendments are being finalized to correct inaccuracies and oversights 
that were previously promulgated. These changes are described in Table 
2 of this preamble. Several of these issues were identified through the 
public comments and the EPA identified others.

 Table 2--Miscellaneous Technical Corrections to 40 CFR Part 63, Subpart
                                 VVVVVV
------------------------------------------------------------------------
                                                         Description of
              Section of subpart VVVVVV                    correction
------------------------------------------------------------------------
40 CFR 63.11494(a)(3)................................  We are finalizing
                                                        several changes
                                                        to this
                                                        paragraph.
                                                        First, we are
                                                        clarifying that
                                                        the 0.1-percent
                                                        and 1.0-percent
                                                        concentration
                                                        thresholds are
                                                        on a mass basis
                                                        of the
                                                        individual Table
                                                        1 HAP. Second,
                                                        we are
                                                        clarifying that
                                                        all Table 1 HAP,
                                                        except for
                                                        quinoline,
                                                        manganese, and
                                                        trivalent
                                                        chromium
                                                        compounds, are
                                                        considered
                                                        carcinogenic,
                                                        probably
                                                        carcinogenic or
                                                        possibly
                                                        carcinogenic.
                                                        Therefore, the
                                                        concentration
                                                        threshold of 1.0
                                                        weight percent
                                                        applies only to
                                                        quinoline,
                                                        manganese, and
                                                        trivalent
                                                        chromium
                                                        compounds, and
                                                        the threshold of
                                                        0.1 weight
                                                        percent applies
                                                        to all other
                                                        Table 1 HAP.
                                                        Third, we are
                                                        clarifying
                                                        applicability of
                                                        CMPU that
                                                        generate a Table
                                                        1 HAP byproduct.
                                                        If Table 1 HAP
                                                        are generated as
                                                        a byproduct, the
                                                        changes clarify
                                                        that the CMPU is
                                                        subject to the
                                                        rule if the
                                                        concentration of
                                                        the Table 1 HAP
                                                        in any liquid
                                                        stream in the
                                                        CMPU exceeds the
                                                        same thresholds
                                                        that apply to
                                                        feedstocks.
                                                        Specifically, if
                                                        quinoline is
                                                        generated as a
                                                        byproduct, then
                                                        the CMPU is
                                                        subject if the
                                                        quinoline
                                                        concentration in
                                                        any liquid
                                                        stream in the
                                                        CMPU exceeds 1.0
                                                        percent by
                                                        weight.
                                                        Similarly, if
                                                        hydrazine or any
                                                        other organic
                                                        Table 1 HAP is
                                                        generated as a
                                                        byproduct, then
                                                        the process is
                                                        subject if the
                                                        individual
                                                        concentration of
                                                        these compounds
                                                        in any liquid
                                                        stream is
                                                        greater than 0.1
                                                        percent by
                                                        weight. In
                                                        addition, we are
                                                        clarifying that
                                                        if hydrazine or
                                                        any other
                                                        organic Table 1
                                                        HAP is generated
                                                        as a byproduct,
                                                        then the process
                                                        is subject if
                                                        the individual
                                                        concentration of
                                                        these compounds
                                                        in any batch
                                                        process vent or
                                                        continuous
                                                        process vent is
                                                        greater than 0.1
                                                        percent by
                                                        weight. Finally,
                                                        we are
                                                        consolidating
                                                        paragraphs
                                                        (a)(1) and (3)
                                                        to eliminate
                                                        redundancy.
40 CFR 63.11494(c)(1)(vii)...........................  We are adding a
                                                        new paragraph
                                                        that lists lead
                                                        oxide production
                                                        at lead acid
                                                        battery
                                                        manufacturing
                                                        facilities in
                                                        those operations
                                                        for which this
                                                        subpart does not
                                                        apply. These
                                                        sources are
                                                        covered by 40
                                                        CFR part 63,
                                                        subpart PPPPPP--
                                                        NESHAP for Lead
                                                        Acid Battery
                                                        Manufacturing
                                                        Area Sources.
40 CFR 63.11494(d)...................................  We are clarifying
                                                        that a CMPU
                                                        using only Table
                                                        1 metal HAP is
                                                        not subject to
                                                        any requirements
                                                        for wastewater
                                                        systems or heat
                                                        exchange
                                                        systems. Only
                                                        organic HAP are
                                                        subject to
                                                        wastewater and
                                                        heat exchange
                                                        system
                                                        requirements.
40 CFR 63.11495(a)(3)................................  We are splitting
                                                        this section
                                                        into an
                                                        introductory
                                                        section with
                                                        five
                                                        subsections. One
                                                        sentence that
                                                        contains two
                                                        concepts has
                                                        also been split
                                                        into two
                                                        separate
                                                        sentences. The
                                                        requirements,
                                                        however, have
                                                        not changed.
40 CFR 63.11496(c)...................................  We are adding an
                                                        example of
                                                        emission
                                                        contributions to
                                                        subtract when
                                                        determining the
                                                        TRE index value
                                                        of individual
                                                        streams before
                                                        they are
                                                        combined.
40 CFR 63.11496(d)...................................  We are revising
                                                        the title of
                                                        this paragraph
                                                        and clarifying
                                                        that the mass
                                                        emission rate of
                                                        halogen atoms
                                                        must be
                                                        calculated in
                                                        accordance with
                                                        Sec.
                                                        63.115(d)(2)(v),
                                                        or alternatively
                                                        you may
                                                        designate an
                                                        emission stream
                                                        as halogenated.
40 CFR 63.11496(e)...................................  We are adding a
                                                        new paragraph
                                                        that clarifies
                                                        that CEMS
                                                        requirements and
                                                        data reduction
                                                        requirements for
                                                        CEMS specified
                                                        in Sec.
                                                        63.2450(j)
                                                        apply.
40 CFR 63.11496(f)(3)(i)(C)..........................  We are editing
                                                        this paragraph
                                                        to add the
                                                        acronym ``CMS.''
40 CFR 63.11496(f)(3)(ii)............................  We are editing
                                                        the first
                                                        sentence in this
                                                        paragraph to
                                                        remove the
                                                        unnecessary word
                                                        ``report.''
40 CFR 63.11496(f)(3)(ii)............................  We are clarifying
                                                        that if a source
                                                        elects to
                                                        conduct an
                                                        engineering
                                                        assessment to
                                                        demonstrate
                                                        initial
                                                        compliance with
                                                        the standards
                                                        for metal HAP
                                                        process vents,
                                                        then the design
                                                        evaluation must
                                                        be conducted at
                                                        representative
                                                        operating
                                                        conditions for
                                                        the CMPU.
40 CFR 63.11494(g)(2)................................  We are clarifying
                                                        that you may
                                                        elect to conduct
                                                        a design
                                                        evaluation
                                                        instead of a
                                                        performance test
                                                        to determine
                                                        initial
                                                        compliance with
                                                        an outlet
                                                        concentration
                                                        emission limit.
40 CFR 63.11494(g)(4)(i).............................  We are clarifying
                                                        that you may
                                                        measure caustic
                                                        strength of the
                                                        scrubber
                                                        effluent for any
                                                        halogen scrubber
                                                        within a CMPU
                                                        subject to this
                                                        rule.
40 CFR 63.11494(g)(5)................................  We are clarifying
                                                        that 40 CFR
                                                        63.996(c)(2)(ii)
                                                        and
                                                        63.998(c)(1)(ii)
                                                        (E) do not apply
                                                        for the purposes
                                                        of this subpart.
40 CFR 63.11494(g)(8)................................  We are adding a
                                                        new paragraph
                                                        that clarifies
                                                        when the initial
                                                        demonstration
                                                        requirements for
                                                        process
                                                        condensers
                                                        applies.
40 CFR 63.11497......................................  We are adding a
                                                        paragraph to
                                                        this section
                                                        clarifying that
                                                        the halogenated
                                                        vent stream
                                                        provisions also
                                                        apply to
                                                        affected storage
                                                        tanks.
40 CFR 63.11498(a)(2), 63.11502(b), and Table 6......  We are adding a
                                                        definition of
                                                        ``hazardous
                                                        waste
                                                        treatment'' in
                                                        40 CFR
                                                        63.11502(b) to
                                                        mean treatment
                                                        in either (1) a
                                                        RCRA-permitted
                                                        incinerator,
                                                        process heater,
                                                        boiler, or
                                                        underground
                                                        injection well,
                                                        or (2) an
                                                        incinerator,
                                                        process heater,
                                                        or boiler
                                                        complying with
                                                        40 CFR part 63,
                                                        subpart EEE. We
                                                        are also adding
                                                        corresponding
                                                        changes to Table
                                                        6 to subpart
                                                        VVVVVV.
                                                        Specifically,
                                                        for each
                                                        wastewater
                                                        stream, Item 1.a
                                                        would require
                                                        either
                                                        wastewater
                                                        treatment or
                                                        hazardous waste
                                                        treatment. In
                                                        addition, Item
                                                        2.b would be
                                                        edited to use
                                                        the new term
                                                        ``hazardous
                                                        waste
                                                        treatment'' and
                                                        to allow for
                                                        hard piping of
                                                        wastewater
                                                        streams to a
                                                        point of
                                                        transfer to
                                                        onsite hazardous
                                                        waste treatment.
                                                        The changes to
                                                        Item 1.a also
                                                        make it clear
                                                        that the
                                                        treatment
                                                        conducted to
                                                        meet Item 2.b
                                                        would satisfy
                                                        the requirements
                                                        of Item 1.a.
40 CFR 63.11500(a) and Table 5.......................  We are adding a
                                                        paragraph to 40
                                                        CFR 63.11500(a)
                                                        to clarify that
                                                        that offsite
                                                        reloading and
                                                        cleaning
                                                        facilities that
                                                        are subject to
                                                        40 CFR 1253(f)
                                                        and comply with
                                                        the monitoring,
                                                        recordkeeping,
                                                        and reporting
                                                        requirements in
                                                        any other
                                                        subpart of part
                                                        63 are
                                                        considered to be
                                                        in compliance
                                                        with the
                                                        monitoring,
                                                        recordkeeping,
                                                        and reporting
                                                        requirements of
                                                        40 CFR
                                                        63.1253(f)(7)(ii
                                                        ) or (iii). We
                                                        are also adding
                                                        corresponding
                                                        changes to Table
                                                        5 to subpart
                                                        VVVVVV to
                                                        clarify which
                                                        requirements
                                                        apply to owners
                                                        or operators of
                                                        offsite cleaning
                                                        or reloading
                                                        facilities.
40 CFR 63.11501(b)...................................  We are revising
                                                        this paragraph
                                                        to allow sources
                                                        to submit their
                                                        notice of
                                                        compliance
                                                        status (NOCS)
                                                        reports no later
                                                        than 60 days
                                                        after the
                                                        applicable
                                                        compliance date.
40 CFR 63.11501(c)(4)(i).............................  We are replacing
                                                        the incorrect
                                                        word
                                                        ``dimension''
                                                        with the correct
                                                        word
                                                        ``dimensions.''

[[Page 75747]]

 
40 CFR 63.11502(a)...................................  We are inserting
                                                        references to
                                                        the definitions
                                                        of the terms
                                                        ``batch
                                                        operation,''
                                                        ``continuous
                                                        operation,'' and
                                                        ``isolated
                                                        intermediate''
                                                        in 40 CFR
                                                        63.2550 of the
                                                        MON. We are also
                                                        inserting a
                                                        reference to the
                                                        definition of
                                                        ``control
                                                        device'' in 40
                                                        CFR 63.111 of
                                                        the Hazardous
                                                        Organic Chemical
                                                        Manufacturing
                                                        NESHAP (HON).
40 CFR 63.11502(b)...................................  We are modifying
                                                        the definition
                                                        of ``batch
                                                        process vent''
                                                        to clarify that
                                                        vents from batch
                                                        operations are
                                                        considered to be
                                                        batch process
                                                        vents.
40 CFR 63.11502(b)...................................  We are adding a
                                                        definition for
                                                        the term
                                                        ``engineering
                                                        assessment''
                                                        consistent with
                                                        40 CFR
                                                        63.1257(d)(2)(ii
                                                        ), but which has
                                                        been revised to
                                                        include the
                                                        appropriate
                                                        references for
                                                        this rule.
40 CFR 63.11502(b)...................................  We are adding a
                                                        definition for
                                                        the term ``point
                                                        of
                                                        determination''
                                                        consistent with
                                                        40 CFR 63.111 of
                                                        the HON, but
                                                        which has been
                                                        revised to
                                                        include the
                                                        appropriate
                                                        references for
                                                        this rule.
40 CFR 63.11502(b)...................................  We are modifying
                                                        the definition
                                                        of ``product''
                                                        to remove
                                                        ``isolated
                                                        intermediates''
                                                        from the list of
                                                        materials that
                                                        are not
                                                        considered
                                                        products.
40 CFR 63.11502(b)...................................  We are adding a
                                                        definition for
                                                        the term
                                                        ``uncontrolled
                                                        emissions'' that
                                                        reads:
                                                        ``Uncontrolled
                                                        emissions means
                                                        organic HAP or
                                                        metal HAP
                                                        process vent
                                                        emissions, as
                                                        applicable, at
                                                        the outlet of
                                                        the last
                                                        recovery device,
                                                        if any, and
                                                        prior to any
                                                        control device.
                                                        In the absence
                                                        of both recovery
                                                        devices and
                                                        control devices,
                                                        uncontrolled
                                                        emissions are
                                                        the emissions
                                                        discharged to
                                                        the
                                                        atmosphere.''
Table 3..............................................  We are replacing
                                                        the reference to
                                                        40 CFR
                                                        63.982(c)(2) in
                                                        item 1.a with
                                                        the correct
                                                        reference to 40
                                                        CFR 63.982(c).
Table 3..............................................  We are adding an
                                                        item to this
                                                        table for
                                                        continuous
                                                        process vents
                                                        with a TRE >1.0
                                                        but <=4.0. This
                                                        item clarifies
                                                        that these
                                                        continuous
                                                        process vents
                                                        are required to
                                                        comply with 40
                                                        CFR 63.982(e) if
                                                        a recovery
                                                        device is used
                                                        to maintain a
                                                        TRE >1.0 but
                                                        <=4.0.
Table 5..............................................  We are replacing
                                                        the reference to
                                                        40 CFR
                                                        63.982(c)(1) in
                                                        item 1.b with
                                                        the correct
                                                        reference to 40
                                                        CFR 63.982(c).
                                                        We are also
                                                        removing the
                                                        requirement in
                                                        item 1.b.ii to
                                                        comply with the
                                                        inspection
                                                        requirements in
                                                        40 CFR 63.11495
                                                        for closed vent
                                                        systems.
Table 8..............................................  We are revising
                                                        item 1.a.i to
                                                        clarify that the
                                                        reference to
                                                        monthly
                                                        monitoring for
                                                        the first 6
                                                        months in 40 CFR
                                                        63.104(b)(1)
                                                        does not apply.
Table 9..............................................  We are revising
                                                        the entry to 40
                                                        CFR 63.8(c)(4)
                                                        to state that
                                                        this paragraph
                                                        does apply, but
                                                        only for CEMS.
                                                        The requirements
                                                        for CPMS are
                                                        contained in 40
                                                        CFR part 63,
                                                        subpart SS, and
                                                        requirements for
                                                        COMS do not
                                                        apply.
Table 9..............................................  We are revising
                                                        the entry for 40
                                                        CFR 63.8(g)(5)
                                                        to clarify that
                                                        the data
                                                        reduction
                                                        requirements for
                                                        CEMS are
                                                        specified in 40
                                                        CFR 63.2450(j)
                                                        and that CPMS
                                                        requirements are
                                                        specified in 40
                                                        CFR part 63,
                                                        subpart SS.
Table 9..............................................  We are adding an
                                                        entry for 40 CFR
                                                        63.9(i) to state
                                                        that this
                                                        paragraph
                                                        applies to
                                                        subpart VVVVVV.
------------------------------------------------------------------------

IV. Summary of Major Changes Since Proposal

    The EPA received 19 public comment letters on the proposed 
revisions to the CMAS final rule. In addition, the EPA received six 
comments and sets of materials from industry representatives following 
the close of the comment period. After consideration of these comments, 
the EPA is making several changes to the final rule. Following are the 
major changes to the standards since the proposal. The rationale for 
these and other significant changes can be found in this section, in 
section V of this preamble, and in the National Emission Standards for 
Hazardous Air Pollutant Emissions for Chemical Manufacturing Area 
Source--Reconsideration: Summary of Public Comments and Responses, in 
the CMAS rule docket (EPA-HQ-OAR-2008-0334).

A. Title V Permitting Requirements

    In the proposed rule revisions, we proposed to narrow the 
applicability of title V permitting requirements for certain synthetic 
area sources subject to the final rule. Specifically, under the 
proposal, only those sources that installed a federally-enforceable 
control device on an affected CMPU in order to become an area source 
would be subject to the requirement to obtain a title V permit. The EPA 
received public comments on this issue from industry representatives 
and two states during the public comment period. Public commenters were 
generally opposed to the EPA requiring any affected source to obtain a 
title V permit. The commenters were concerned that the burden of 
obtaining a title V permit was not warranted given the level of public 
participation already required by, and other requirements associated 
with, a Federally Enforceable State Operating Permit (FESOP) that 
sources with a federally-enforceable control device must already 
obtain. However, commenters stated that if the EPA should choose to 
require certain sources to obtain a title V permit, then they supported 
limiting the requirement to apply to only those sources that installed 
a federally-enforceable control device on an affected CMPU.
    As a preliminary matter, we note that section 502(a) of the CAA 
requires all area sources subject to CAA section 112 standards to 
obtain a title V permit unless the EPA makes a finding that title V is 
impracticable, infeasible or unnecessarily burdensome. The EPA did not 
exempt CMAS synthetic area sources that installed controls to limit HAP 
emissions because we believe that the limited burden resulting from the 
applicability of title V to these area sources is outweighed by the 
benefits of the title V permit. The EPA also continues to maintain that 
``while there is some burden on the affected facilities, we think that 
the burden is not significant because these facilities are generally 
larger and more sophisticated than the natural area sources and sources 
that took operational limits to become area sources.'' 74 FR 56014.
    In the final rule revisions, we have made slight revisions to the 
proposed changes to the title V permit requirement to further clarify 
the applicability of title V to CMAS sources. Specifically, we have 
revised the rule to make clear that the installation of a federally-
enforceable air pollution control device on an affected CMPU triggers 
the title V permit requirement for any synthetic area source subject to 
the final rule if the air pollution controls installed on the affected 
CMPU are required to maintain the source's emissions at area source 
levels. The EPA continues to believe that the additional protections 
provided by a title V permit

[[Page 75748]]

are warranted for CMAS synthetic area sources that installed controls 
because they are generally larger, more sophisticated and have higher 
HAP emissions before control than natural area sources and synthetic 
area sources that took operational limits. See 74 FR 56013-56014, 
56034-56039 (October 29, 2009); 77 FR 4525-4527 (January 30, 2012).
    If a synthetic area source is subject to the CMAS rule and it has 
installed a federally-enforceable control device on an affected CMPU in 
order to become an area source, it is subject to title V and it must 
obtain a permit. Under 40 CFR 70.3(c)(2), for any non-major source 
subject to title V, the permitting authority must include in the permit 
all applicable requirements that apply to emissions units (i.e., the 
CMPU) that trigger applicability of title V. 40 CFR 70.3(c)(2); see 
also 40 CFR 70.2 (defining ``applicable requirement''). Thus, the state 
title V permitting authority may require a source subject to title V 
pursuant to the CMAS rule to include in the title V permit only the 
applicable requirements that apply to the CMPU(s) that cause the source 
to be subject to title V.
    Additionally, based on the comments submitted by industry, we 
appreciate industry's concern that, due to the nature of chemical 
manufacturing, specifically specialty and batch chemical manufacturing, 
the industry needs operational flexibility and that some types of 
operational changes involving the affected CMPU could be subject to 
frequent title V revisions. There are several flexible permitting 
techniques available to sources through the title V permitting program, 
such as Alternative Operating Scenarios and Approved Replicable 
Methodologies. See 74 FR 51418 (October 6, 2009). We therefore 
encourage sources to consider the viability of establishing flexibility 
upfront in their respective title V permits as a way to avoid permit 
revisions, without sacrificing compliance assurance or operational 
flexibility.

B. Requirement for Covers or Lids on Process Vessels

    In the proposed rule revisions, we requested comment on whether a 
change was needed for the definition of ``in metal HAP service'' to 
make it consistent with the proposed revisions to the definition of 
``in organic HAP service.'' Public commenters were generally in favor 
of these proposed revisions.
    In the final rule revisions, we have revised the definition of ``in 
metal HAP service'' to state that, consistent with the revised 
definition of ``in organic HAP service,'' a process vessel is no longer 
in metal HAP service after the vessel has been emptied to the extent 
practicable (i.e., a vessel with liquid left on process vessel walls or 
as bottom clingage, but not in pools, due to floor irregularity, is 
considered completely empty) and any cleaning has been completed. We 
have also revised the requirement that a cover or lid must be in place 
and closed at all times when a process vessel is in organic HAP service 
or in metal HAP service to not apply for CMPU using only metal HAP that 
are in a liquid solution or other form that the source determines will 
not result in particulate emissions of metal HAP (e.g., metal HAP that 
is in ingot, paste, slurry or moist pellet form or other form).

C. Requirement To Conduct Leak Inspections When Equipment Is in HAP 
Service

    We solicited comment on whether to permit leak inspections to be 
conducted when equipment was in VOC service, rather than just when it 
was in organic HAP service or in metal HAP service. Public commenters 
were generally in favor of allowing leak inspections to be conducted 
while equipment was in VOC service.
    In the final rule revisions, we are allowing facilities to conduct 
leak inspections of equipment in VOC service, provided that leaks can 
be detected while in VOC service. A CMPU that contains metal HAP as 
particulate must conduct leak inspections while the equipment is in 
metal HAP service. We have also added a corresponding definition of 
``in VOC service'' to mean that a process vessel or piece of equipment 
either contains or contacts a fluid that contains VOC.

D. Requirements for Metal HAP Process Vents

    In the proposed rule revisions, we solicited comment on whether the 
definition of ``metal HAP process vent'' was applicable to all types of 
equipment from which metal HAP are emitted. The original rule defined a 
metal HAP process vent as ``the point of discharge to the atmosphere 
(or inlet to a control device, if any) of a metal HAP-containing gas 
stream from any CMPU at an affected source,'' regardless of the 
concentration of metal HAP in the stream. Public commenters were 
generally in favor of defining a metal HAP process vent as containing 
at least 50 ppmv metal HAP, consistent with the MON.
    In the final rule revisions, we have revised the definition of 
``metal HAP process vent'' to include only those streams which contain 
at least 50 ppmv metal HAP. We have also revised the final rule to 
state that process vents from CMPU that only contain metal HAP in a 
liquid solution or other form that will not result in particulate 
emissions of metal HAP (e.g., metal HAP that is in ingot, paste, slurry 
or moist pellet form or other form) are not required to comply with the 
metal HAP process vent requirements.

E. Extension of the Compliance Date

    In the proposed rule revisions, we did not propose to revise the 
compliance date for the final rule, which was October 29, 2012. Under 
CAA section 112, the compliance date may be no more than 3 years after 
the effective date of the final rule, which for the CMAS rule was 
October 29, 2009. Public commenters were concerned that due to the 
expected short period of time between the promulgation of the final 
rule amendments and the existing October 29, 2012, compliance date, 
there would not be sufficient time for facilities to review the revised 
rule requirements and certify compliance by the compliance date. The 
commenters were particularly concerned with determining compliance 
because the proposed changes to the family of materials concept may 
affect applicability of the final standards to CMPU located at sources 
subject to the CMAS rule. It was the EPA's expectation that the 
reconsideration would be finalized in advance of October 29, 2012, 
compliance date. However, the EPA was still in the process of 
finalizing the reconsideration action, and on October 25, 2012, the EPA 
published a 60-day stay of the final CMAS rule (77 FR 65135).
    In the final rule, the EPA is extending the compliance date for 
existing sources until March 21, 2013. We agree that existing sources 
should have additional time to evaluate applicability in light of the 
amendments to the rule since publication of the final reconsideration 
action is occurring so close to the existing source compliance date. We 
think this short extension will provide sources the necessary time to 
determine applicability and take the actions necessary to comply with 
the final rule. The EPA is not revising the compliance date for new 
sources.

F. Technical Corrections

    In the proposed rule revisions, we proposed in 40 CFR 
63.11494(a)(3) a technical correction that the concentration thresholds 
for applicability of Table 1 HAP present in feedstocks or any liquid 
streams (process or waste) were to be

[[Page 75749]]

determined on a collective Table 1 HAP basis. In addition, we also 
proposed to specify that a CMPU is subject to the CMAS rule if the 
collective concentration of Table 1 HAP exceeded 50 ppmv in any process 
vent stream. Public commenters were concerned that by revising the rule 
to determine applicability based on collective Table 1 HAP 
concentration and a 50 ppmv threshold, the applicability of the rule 
would be greatly expanded beyond its original scope.
    In the final rule revisions, we have revised this language to 
clarify that the concentration thresholds for applicability of Table 1 
HAP are to be determined on an individual Table 1 HAP concentration, 
rather than a collective concentration. In addition, we have also 
clarified that the 0.1 percent by weight threshold for Table 1 HAP 
present in liquid streams (process or waste) also applies to Table 1 
HAP present in any continuous process or batch process vent, rather 
than the proposed 50 ppmv threshold.
    We are not finalizing this proposed change because we did not fully 
consider the implications of the proposed change. We included the 
proposed change in the technical corrections section of the proposed 
rule on the belief that it was a technical change, but, in fact, the 
change, if finalized, would have had significant consequences. The 
proposed change would have likely lead to a considerable expansion of 
the applicability of the rule. In addition, sources would no longer 
have been able to determine applicability by reviewing their Material 
Safety Data Sheets (MSDS) as the 2009 final rule provides because the 
MSDS does not indicate the amount of emissions below the 0.1 percent 
threshold. This would mean that sources would have to go to 
considerable lengths at considerable cost in testing very low levels of 
HAP to even determine whether the final rule applies to their CMPUs, 
which is not what the EPA intended.

V. Summary of Comments and Responses

    This section contains a summary of major comments and responses and 
rationale for changes made to the proposed rule. The EPA received many 
comments covering numerous topics. The EPA's responses to those 
comments can be found either in this preamble or in the National 
Emission Standards for Hazardous Air Pollutant Emissions for Chemical 
Manufacturing Area Source--Reconsideration: Summary of Public Comments 
and Responses, in the CMAS rule docket (EPA-HQ-OAR-2008-0334).

A. Title V Permitting Requirements

    Comment: Eight commenters objected to the requirement that certain 
synthetic area sources subject to the CMAS rule be required to obtain a 
title V permit. The commenters stated that the requirement would be 
overly burdensome and that it would impose significant additional costs 
on facilities while achieving no additional environmental benefit or 
gains in compliance. The commenters estimate that it will cost a 
facility $25,000-$100,000 to obtain a title V permit.
    In contrast, one commenter stated that the cost of obtaining a 
title V permit instead of a synthetic area source permit in their area 
is comparable due to associated permit fees for synthetic area source 
permits and emission fees for title V permits.
    Response: The EPA disagrees with the commenters that the 
requirement to obtain a title V permit is overly burdensome and we 
maintain that title V is appropriate for the sources that will be 
subject to title V pursuant to this final rule. In the preamble to the 
final rule, we determined that ``requiring additional public 
involvement and compliance assurance requirements through title V is 
important to ensure that these sources are maintaining their emissions 
at the area source level, and, while there is some burden on the 
affected facilities, we think that the burden is not significant 
because these facilities are generally larger and more sophisticated 
than the natural area sources and sources that took operational limits 
to become area sources.'' 74 FR 56014. The cost estimates provided by 
the commenters are very broad and the commenters do not provide any 
information to support the cost estimates that were provided; 
therefore, the EPA is unable to evaluate the validity of these 
estimates.
    Comment: Three commenters expressed concern with the impacts that 
the title V program requirements might impose on a source subject to 
the CMAS rule. In particular, they expressed concern with the ability 
of batch operations that have the need for quick changes to their 
production processes to be able to make such changes rapidly and with 
the necessary permitting flexibility. The commenters stated that by 
requiring a title V permit, the facility will be required to apply for 
a permit modification every time they wanted to manufacture a new 
product, costing them both time and money and placing them at a 
competitive disadvantage.
    Response: We appreciate that the commenters want to maintain 
operational flexibility, but title V permits can and do accommodate 
provisions that provide operational flexibility for batch processing 
(and other) operations. In fact, permitting authorities have been 
incorporating operational flexibility for batch processes into title V 
permits through a variety of mechanisms provided under existing rules. 
These flexibilities have eliminated the need to modify permits when new 
products are manufactured. For example, since 2003, a number of 
specialty chemical manufacturers, who use batch processing, are subject 
to title V permitting under the Miscellaneous Organic NESHAP (MON). To 
accommodate the need for frequent operational changes at these 
facilities, states have issued flexible operating permits that provide 
these sources with the ability to obtain approval in advance for a 
variety of alternative operating scenarios, categories of changes, 
plant-wide applicability limits, or other operating flexibilities that 
enable them to operate in the most effective way while still complying 
with the requirements of the title V program. As the CMAS rule notes, 
batch CMAS sources, like MON sources, can take advantage of similar 
flexibilities and set their continuous monitoring parameters based on 
their projected range of batch scenarios.
    This type of flexibility has been effectively incorporated into 
title V permits to sources in the semiconductor industry for many 
years. Just like the specialty chemical manufacturing industry, the 
semiconductor industry operates in a rapidly changing environment, 
requiring flexibility to make quick changes without the need to go 
through permit modifications. Through the use of advance approvals and 
flexible permits, companies such as Intel have been able to operate in 
a quickly changing environment while complying with the requirements of 
the title V program. Intel currently introduces a new generation of 
semiconductor chips every 12 to 24 months, with each new product cycle 
supported by a major facility revamp. These operational changes are 
time sensitive to meet product release schedules from computer and 
electronics manufacturers and involve highly interdependent and 
sequenced steps. Intel also reported a need to make rapid (and 
sometimes iterative) process and equipment adjustments in production 
processes to improve yield, lower costs, reduce chemical usage, and 
otherwise improve operations. The

[[Page 75750]]

advance approved changes in Intel's flexible permit likely saved the 
plant hundreds of business days associated with making operational and 
process changes to ramp up production for new products, respond to 
market demands, and optimize production processes. Industry estimates 
of the opportunity costs of production downtime and time delays run as 
high as several million dollars in just a few days due to lost sales to 
computer makers and other factors. The estimated 150 to 200 changes per 
year, combined with the otherwise normally expected approval time frame 
of up to 60 days per change, indicate that there would likely have been 
significant delay under a conventional permitting approach. Intel has 
in the past cited its flexible air permit as a vital element enabling 
Intel to double employment during the permit term and to transfer and 
scale-up production of next generation computer chips at plants 
throughout the U.S., retaining and creating thousands of additional 
jobs.
    The EPA is willing to work with companies and state permitting 
authorities to ensure they are aware of the flexibilities already 
available under the title V permitting program that address the 
concerns of the small number of CMAS synthetic area sources that must 
obtain a title V permit.
    Comment: Four commenters stated that the process for obtaining a 
synthetic area source permit and the amount of information contained in 
it are very similar to those of a title V permit. Three of the 
commenters detailed the steps involved in obtaining each type of 
permit, as well as the information contained in each. The commenters 
also stated that both processes provide opportunity for public comment 
on the draft permit and that the facilities may be required to certify 
compliance annually. One of the commenters also provided general 
information on FESOPs and synthetic area source permits issued in 
Illinois and Ohio. Another commenter also provided general information 
on FESOP and synthetic area source permits for 11 states, including 
whether notice and comment is required and what additional oversight is 
conducted by the state. One commenter noted that FESOP programs must be 
approved through State Implementation Programs, which provide an 
opportunity for both the EPA and public comment. Another commenter 
stated that under the North Carolina Division of Air Quality's air 
permitting program, synthetic area sources are already subject to 
annual inspections similar to what title V requires. The commenter also 
stated that sources that have add-on controls typically have lower 
emissions than sources that have taken operational limits to become 
synthetic area sources.
    Response: While the commenters provided broad, general information 
on the requirements of FESOPs as compared to title V permits, none of 
them provided specific examples of these permits for the EPA to 
evaluate and compare to title V permits. Without this specific 
information from each state (as the requirements for a FESOP vary by 
state), the EPA cannot conclude that FESOPs provide the same level of 
information as that of a title V permit. In addition, unlike FESOP 
programs, petitions to object to title V permits may be brought before 
the EPA. As the requirements for public participation for a FESOP vary 
by state, the EPA cannot be assured that all citizens in all states 
would be afforded the same level of public participation that a title V 
permit would provide.
    In addition, title V requires a facility to include in the title V 
permit all applicable requirements that apply to CMAS affected units, 
not just the CMPU requirements that trigger applicability of title V, 
so that the public will be able to assess a source's compliance with 
all requirements that apply to CMAS affected units by reviewing the 
title V permit. The public is provided access to compliance 
demonstration information submitted to state permitting authorities and 
there is no indication in the comments that such information is 
available pursuant to state FESOP programs.
    Furthermore, even though certain states, such as North Carolina, 
may require that a synthetic area source be subject to additional 
inspections, this requirement varies by state and only a title V permit 
would assure that these additional inspections are required for all 
CMAS synthetic area sources required to obtain a title V permit. 
Finally, we do not agree with the assertion that sources that install 
control devices necessarily have lower emissions than those that have 
taken operational limits to maintain area source status, as both types 
of synthetic area sources are subject to the same requirement to 
maintain emissions below 10 tpy of any single HAP or 25 tpy of any 
combination of HAP. It is the potential level of emissions from the 
synthetic area source absent controls or operational limits that we 
considered when comparing the two types of synthetic area sources. In 
the 2009 final rule and the reconsideration proposed rule revisions, we 
noted that one reason why we were not exempting synthetic area sources 
that installed controls from title V is because we believe the sources 
are ``generally larger and more sophisticated'' than natural area 
sources and the synthetic area sources that took operational limits. 
See 77 FR 4525; 74 FR 56014. We also stated that we believe the 
uncontrolled HAP emissions from synthetic area sources that installed 
controls are generally much higher than the natural area sources and 
synthetic area sources that took operational limits. Id. The commenters 
did not provide any information that causes us to question our 
conclusions.
    Comment: Four commenters stated that requiring synthetic area 
sources that installed control devices to obtain a title V permit would 
create a disincentive for facilities to maintain their synthetic area 
source status by either voluntarily reducing their emissions or 
installing add-on controls in lieu of taking production limits, which 
would have a negative impact on air quality.
    Response: The EPA disagrees that requiring title V permits would 
discourage facilities from maintaining their synthetic area source 
status, as facilities would in most, if not all, cases be subject to 
existing NESHAP applicable to chemical manufacturing major sources if 
they did not maintain synthetic area source status. For example, these 
sources would likely be subject to the HON or the MON, both of which 
require more frequent inspections and more stringent control of 
emissions. The EPA believes that avoiding these additional requirements 
would still provide incentive for facilities to maintain their 
synthetic area source status. In addition, all major sources of HAP 
subject to NESHAP are required to obtain a title V permit so the 
sources would still be required to comply with title V.
    Comment: One commenter stated that it is punitive to require title 
V permits for sources that have already made a capital investment to 
achieve area source status and avoid title V permits in the past. The 
commenter stated that the EPA is ignoring the environmental benefit 
associated with the installation of federally-enforceable control 
devices by focusing on the uncontrolled potential of these sources.
    Response: Pursuant to section 502(a) of the CAA, all area sources 
subject to CAA section 112 standards are required to obtain a title V 
permit unless the EPA makes a finding that title V is impracticable, 
infeasible or unnecessarily burdensome. Thus, there is no basis to 
support the statement that title V is punitive in nature and the EPA 
disagrees that requiring title V permits for synthetic area sources 
that installed

[[Page 75751]]

control devices is punitive. Furthermore, we are not ignoring the 
environmental benefit of controlling HAP emissions by requiring title V 
for certain CMAS sources.
    In most, if not all, cases, synthetic area sources that installed 
controls would be subject to existing NESHAP applicable to major 
sources if they did not take synthetic area source limits and those 
standards are set at the maximum achievable control technology (MACT) 
level. Since MACT standards are technology based standards established 
based on the performance of the best performing source(s), it is likely 
the commenter would have had to achieve a comparable level of emissions 
reductions even if they had not taken the synthetic area source limit. 
While the EPA appreciates the environmental benefit attained by 
facilities that have installed these control devices to become area 
sources, we still believe that title V permitting is appropriate to, 
among other things, ensure: that synthetic area sources that installed 
controls are maintaining their emissions at the permitted level; that 
the public is able to review and evaluate the source's permit and 
compliance; that there is adequate monitoring, recordkeeping and 
reporting; and that the source's management is required to certify 
compliance with the CAA requirements applicable to the source.
    Comment: Three commenters stated that if the EPA should choose to 
finalize the title V permit requirement, they supported the decision to 
limit this requirement to only facilities that have installed controls 
on an affected CMPU subject to the CMAS rule.
    Response: The EPA has finalized revisions to the title V permit 
requirement; however, the EPA has made some revisions to the title V 
permit requirement to further clarify the applicability of title V to 
CMAS sources. The final rule only requires title V permits for 
facilities that have installed a federally-enforceable control device 
on at least one affected CMPU and the air pollution control device is 
required to maintain the source's emissions at area source levels.
    Comment: One commenter expressed concern that while the language of 
the original final rule made it clear that their facility was exempted 
from the title V requirement, the proposed revisions made it ambiguous 
as to whether the facility would be required to obtain a title V 
permit. The commenter believed that the revised provisions for 
obtaining a title V permit would no longer exclude sources that were 
never a major source, and could instead be interpreted to mean that any 
synthetic area source, regardless of whether it was previously major or 
area, that installed a federally-enforceable control device on an 
affected CMPU would be subject to the title V permit requirement. The 
commenter requested that this requirement only apply to sources that 
became a synthetic area source as a direct result of installing the 
federally-enforceable control device.
    Response: In response to comments on the proposed rule, the EPA has 
revised the final rule language to clarify the scope of the title V 
permit requirement. Specifically, the final rule requires a title V 
permit for any synthetic area source subject to the CMAS rule that 
would be a major source but for the installation of a federally-
enforceable control device on at least one affected CMPU. The final 
title V requirement language affords no consideration to the purpose of 
the installed control device, other than it being necessary to maintain 
the source's emissions at area source levels, or the timing of the 
installation of the control device.

B. Requirements When Other Rules Overlap With the Final Rule

    Comment: One commenter stated that it is not always clear what the 
most stringent provisions are when looking at overlapping provisions. 
The commenter requested that the EPA revise the rule to require 
facilities to make their best determination of stringency and submit to 
the appropriate agency for review and comment. The commenter also 
requested that states should be allowed to make streamlined 
determinations on stringency on an overall program stringency basis 
rather than individual rule provisions of overlapping rules.
    Response: The EPA disagrees with the commenter that it is necessary 
to revise the final rule to allow for facilities to submit their 
stringency determinations for review and comment to their permitting 
authority. As the requirements of this section are entirely optional, 
we do not believe it to be appropriate to place additional burden on 
the local permitting authorities to make the determination of what the 
most stringent provisions are. Instead, we believe that this 
responsibility should continue to be placed on the facility. For those 
sources that are unable to determine the more stringent requirements, 
we continue to believe that it is more appropriate to evaluate requests 
for clarification on a case-by-case basis.
    In addition, we also believe that it would be inappropriate for us 
to make a determination of equivalency among the numerous state 
streamlined programs with the requirements of the CMAS rule. As noted 
in the preamble to the proposed rule revisions, ``[w]e did not include 
language that defines the more stringent requirements, as found in 
other rules, due to the great variety in characteristics of CMAS 
processes and the wide variety of compliance options in both the CMAS 
rule and overlapping rules. This variety makes it difficult to develop 
language that would not inadvertently allow a CMAS facility to comply 
with requirements less stringent than those contained in 40 CFR part 
63, subpart VVVVVV, or less stringent than the required control level 
in an overlapping rule.'' (77 FR 4528). For these reasons, we are not 
revising these provisions in the final rule.

C. Requirement To Conduct Direct and Proximal Leak Inspections

    Comment: Four commenters supported the proposed revisions to remove 
the requirement to conduct ``direct and proximal'' leak inspections and 
stated that the proposed sight, sound or smell inspections are 
appropriate.
    Response: The EPA has finalized the proposed revisions to the leak 
detection requirements.

D. Requirement for Covers or Lids on Process Vessels

    Comment: Three commenters requested that the EPA clarify that for 
metal HAP precipitate, or metal HAP in solution, the requirement to 
install a cover or lid on process vessels in metal HAP service does not 
apply. The commenters cited the low potential for emissions from these 
low vapor pressure metal HAP solutions as rationale for not imposing 
this requirement on such units. One commenter estimated that without 
this change, their facility would have to invest over $1,000,000 in 
covers/lids for their clarifiers, which are used to gravity-separate 
solids from solution and have very low potential for emissions. One 
commenter cited 40 CFR part 63, subpart CCCCCCC as an example of an 
area source rule that does not require this for metal HAP in solution. 
The commenter also provided examples of regulatory text that could be 
used in the CMAS rule.
    Response: The EPA agrees with the commenters that the requirement 
to install a cover or lid for process vessels in metal HAP service is 
unnecessary for metal HAP in solution. As there is very little or no 
potential for air emissions to occur from these solutions, the rule 
need not require the process vessel to be covered. As such, we have 
revised the final rule to state that process vessels

[[Page 75752]]

that only contain metal HAP in a liquid solution or other form that 
will not result in particulate emissions of metal HAP (e.g., metal HAP 
that is in ingot, paste, slurry or moist pellet form or other form) are 
not required to comply with the cover/lid requirement.

E. Requirement To Conduct Leak Inspections When Equipment Is in HAP 
Service

    Comment: Three commenters suggested that leak inspections should be 
permitted to be conducted when equipment is in non-HAP (i.e., VOC) 
service. Two commenters cited the limited personnel available to 
conduct leak inspections and the limited time windows for when 
equipment is in HAP service and inspections may be conducted as 
rationale.
    One commenter noted that there is little difference between 
detecting leaks for streams in VOC vs. HAP service, as many HAP and 
non-HAP solvents have similar vapor and odor thresholds and both can be 
detected adequately by sight, sound or smell. The commenter also stated 
that since the MON allows for sources to assume that equipment is in 
HAP service, then the CMAS rule should permit it as well.
    Response: The EPA agrees with the commenters that conducting leak 
inspections when equipment is in VOC service is acceptable for the 
reasons described above, and has revised the final rule to reflect this 
option, provided that leaks can be detected while in VOC service. As it 
may be very difficult for some facilities to conduct their inspections 
while equipment is in HAP service due to the limited amount of time 
and/or personnel available, this alternative will provide facilities 
with flexibility in conducting inspections while maintaining the same 
level of emissions reductions. This option does not apply to CMPU that 
contain metal HAP as particulate. For those units, the inspections must 
be conducted while the unit is in metal HAP service.

F. Applicability of the Family of Materials Concept

    Comment: Two commenters supported the proposed revisions to the 
definition of ``family of materials.''
    Response: The EPA has finalized the proposed revisions to this 
definition.

G. Requirements for Metal HAP Process Vents

    Comment: Two commenters stated that the definition of metal HAP 
process vent should be revised to better reflect GACT for these 
emission points. The commenters state that in sulfuric acid 
regeneration units (SARUs), metal HAP are already controlled to >95 
percent within the process itself and that it would be unreasonable to 
require an additional 95 percent control for metal HAP vents. The 
commenters recommend that a metal HAP process vent be defined as 
containing at least 50 ppmv metal HAP (similar to the batch and 
continuous process vents definitions), or that all vents from SARUs be 
excluded.
    Response: The EPA agrees with the commenters that a metal HAP 
process vent should be defined as containing at least 50 ppmv metal 
HAP, consistent with the definitions of batch and continuous process 
vents. In reviewing other rules that regulate the chemical sector 
(e.g., the MON) and define a process vent as containing at least 50 
ppmv, the EPA found that it applied to process vents containing any 
HAP, not just organic HAP. As such, the EPA has revised the final rule 
to define a metal HAP process vent as containing at least 50 ppmv metal 
HAP.
    Comment: One commenter requested that the EPA exempt process vents 
from CMPU using metal HAP in solution from the requirements for metal 
HAP process vents. The commenter cites the low potential for emissions 
from these low vapor pressure metal HAP solutions as rationale for 
exempting them. One commenter cited 40 CFR part 63, subpart CCCCCCC as 
an example of an area source rule that exempts metal HAP in solution. 
The commenter also provided examples of regulatory text that could be 
used in the CMAS rule.
    Response: The EPA agrees with the commenter that it is not 
necessary to subject process vents from CMPU using metal HAP in 
solution to the requirements for metal HAP process vents. As the CMAS 
rule requires that CMPU process vents with total metal HAP emissions of 
less than 400 pounds/year (lb/yr) maintain records demonstrating that 
total metal HAP emissions are less than 400 lb/yr, and it is unlikely 
that process vents from CMPU handling only metal HAP in solution would 
ever exceed this value due to the little or no potential for air 
emissions to occur, this requirement results in an unnecessary 
recordkeeping burden for the facility. As such, we have revised the 
final rule to state that process vents from CMPU that only contain 
metal HAP in a liquid solution or other form that will not result in 
particulate emissions of metal HAP (e.g., metal HAP that is in ingot, 
paste, slurry or moist pellet form or other form) are not required to 
comply with the metal HAP process vent requirements.

H. Compliance Date

    Comment: Four commenters requested that the EPA extend the 
compliance date for a period of time ranging from 18 months to 3 years. 
The commenters all stated that the potential expansion of the 
applicability of the final rule would require additional time for 
sources to re-evaluate whether they would be subject to the rule. One 
commenter also cited the uncertainty surrounding the family of 
materials concept as finalized in the original rule and the fact that 
the EPA did not address the de minimis threshold issue that the 
Petitioners raised in their petition for reconsideration as reasons for 
extending the compliance date. The commenters stated that the EPA has 
the legal authority to extend the compliance date, citing the 
circumstances under which the EPA did so in the Boiler MACT 
reconsideration.
    Response: The EPA agrees that a short extension of the compliance 
date is warranted for existing sources, not an extension of 18 months 
to 3 years. Given the amount of uncertainty regarding the applicability 
of the family of materials concept in the 2009 final rule, the EPA 
believes that with the revised definition of ``family of materials'' in 
these amendments, sources will need the short extension to evaluate 
applicability and determine the appropriate compliance approach. As 
such, the EPA believes it is reasonable to provide some additional 
period of time for facilities to review the revised final rule and 
determine which CMPU are subject to the requirements.

I. Technical Corrections

    Comment: Six commenters objected to the proposed revision to base 
CMPU applicability on a collective 0.1 percent by weight (for 
carcinogens) or 1.0 percent by weight (for non-carcinogens) 
concentration, rather than an individual compound concentration. The 
commenters stated that this proposed change goes beyond being a 
``technical correction'' as described in the proposal preamble, as it 
would significantly expand the scope of the rule and increase the 
compliance burden for facilities.
    Two commenters stated that going to a collective HAP concentration 
would be inconsistent with the Toxics Release Inventory and the 
Occupational Safety and Health Administration Hazard Communication 
rules upon which the 0.1 percent and 1.0 percent thresholds were based 
and would be inconsistent with the definition of ``product'' in the 
CMAS rule.

[[Page 75753]]

    Three commenters also noted that by having to use the collective 
concentration, facilities would no longer be able to use MSDS to 
determine applicability because MSDS are not provided for compounds at 
concentrations below 0.1 percent.
    Response: The EPA agrees with the commenters that it is not 
appropriate to use a collective HAP concentration in determining 
applicability. It was not the EPA's intent to expand the applicability 
of the CMAS rule, but rather to clarify when it applied. As explained 
above and in section IV.F of this preamble, the commenters brought up 
numerous issues that the EPA had not considered when proposing this 
revision that would make determining applicability and complying with 
the rule extremely difficult. The expansion of the applicability was 
inadvertent and the final rule has not been revised as proposed.
    Comment: Five commenters objected to the proposed revision to 
determine CMPU applicability based on a collective 50 ppmv 
concentration. The commenters state that, similar to the proposed 
revision to the 0.1/1.0 percent thresholds, this revision would 
significantly expand the scope of the rule, as 50 ppmv is a much lower 
concentration than the 0.1/1.0 percent concentration thresholds that 
had already been established. Additionally, the commenters stated that 
facilities would no longer be able to rely upon MSDS for determining 
applicability and the revision goes beyond being a ``technical 
correction'' as described in the proposal preamble.
    Response: The EPA agrees with the commenters that it is not 
appropriate to establish a collective 50 ppmv concentration threshold 
for determining applicability. It was not the EPA's intent to expand 
the applicability of the CMAS rule, but rather to make the 
applicability consistent with the definitions of batch and continuous 
process vents. As explained above and in section IV.F of this preamble, 
the commenters brought up numerous issues that the EPA had not 
considered when proposing this revision, which would have inadvertently 
expanded the applicability of the rule. The expansion of the 
applicability was inadvertent and the EPA has not revised the final 
rule as proposed.

VI. What other actions are we taking?

    In addition to requesting reconsideration of the above issues, the 
petition for reconsideration also requested the EPA take comment on 
three additional issues: (1) A de minimis exemption for all sources 
potentially subject to the rule; (2) a Petitioner proposed 
interpretation of the CAA section 112(c)(7) definition of ``research or 
laboratory facilities'' that would include commercial development 
activities; and (3) a pollution prevention alternative. The EPA is 
denying reconsideration of these issues because they failed to meet the 
standard for reconsideration under CAA section 307(d)(7)(B), and the 
EPA determined that reconsideration was not otherwise appropriate. 
Specifically, on these issues, the Petitioners have failed to show the 
following: That it was impracticable to raise their objections during 
the comment period; and/or that their concern is of central relevance 
to the outcome of the rules. We have concluded that no clarifications 
to the underlying rules are warranted for these issues.
    Section 307(d)(7)(B) of the CAA states that ``[o]nly an objection 
to a rule or procedure which was raised with reasonable specificity 
during the period for public comment (including any public hearing) may 
be raised during judicial review. If the person raising an objection 
can demonstrate to the Administrator that it was impracticable to raise 
such objection within such time or if the grounds for such objection 
arose after the period for public comment (but within the time 
specified for judicial review) and if such objection is of central 
relevance to the outcome of the rule, the Administrator shall convene a 
proceeding for reconsideration of the rule and provide the same 
procedural rights as would have been afforded had the information been 
available at the time the rule was proposed. If the Administrator 
refuses to convene such a proceeding, such person may seek review of 
such refusal in the United States court of appeals for the appropriate 
circuit (as provided in subsection (b)).''
    As to the first procedural criterion for reconsideration, a 
petitioner must show why the issue could not have been presented during 
the comment period, either because it was impracticable to raise the 
issue during that time or because the grounds for the issue arose after 
the period for public comment (but within 60 days of publication of the 
final action). In the EPA's view, an objection is of central relevance 
to the outcome of the rule only if it provides substantial support for 
the argument that the promulgated regulation should be revised. See, 
e.g., the EPA's Denial of the Petition to Reconsider the Endangerment 
and Cause of Contribute Findings for the Greenhouse Gases under Section 
202 of the Clean Air Act, 75 FR 49561 (August 13, 2010). See also, 75 
FR 49556, 49560-49563 (August 13, 2010), and 76 FR 4780, 4786-4788 
(January 26, 2011) for additional discussion of the standard for 
reconsideration under CAA section 307(d)(7)(B).

A. De Minimis Exemption

    Petitioners stated that the EPA should revise the CMAS final rule 
to include an across-the-board de minimis exemption for sources. The 
Petitioners argued that reconsideration would allow commenters to 
explain how, even with a de minimis exemption, the EPA could meet its 
statutory obligations.
    This issue was contained in public comments submitted in response 
to the CMAS proposed rule published on October 6, 2008 (73 FR 58352). 
The EPA's responses to the comments are presented in section V.A of the 
preamble to the final rule (74 FR 56016-56018) and section 3.2 (pp. 3-
3-3-4) of the October 2009 Response to Comments Regarding National 
Emission Standards for Hazardous Air Pollutants for Chemical 
Manufacturing Area Sources document (See Docket Item No. EPA-HQ-OAR-
2008-0334-0087).
    The comments received on this issue demonstrate that the public had 
ample opportunity to comment on this issue and indeed did so. The EPA 
responded to those comments and sees no substantive reason to revisit 
this issue. Therefore, because the Petitioners did not demonstrate that 
it was impracticable to comment on this issue during the comment period 
on the proposed rule and the Petitioners did comment on it during the 
comment period for the 2008 proposal, the EPA is denying 
reconsideration of this issue.

B. Research and Development Interpretation

    Petitioners stated that the EPA should take comment on an 
interpretation of ``research and laboratory facility'' in the CMAS 
final rule that would exempt equipment associated with ``research'' or 
``laboratory'' activities as those terms are defined by the 
Petitioners. The Petitioners were concerned that, without an 
interpretation of the CAA section 112(c)(7) exemption for research and 
development facilities, the CMAS rule may pose a substantial compliance 
challenge for some sources.
    This issue was contained in public comments submitted in response 
to the CMAS proposed rule published on October 6, 2008 (73 FR 58352). 
The EPA's responses to the comments are presented in section 3.5.3 (pp. 
3-11) of the October 2009 Response to Comments Regarding National 
Emission Standards for Hazardous Air Pollutants

[[Page 75754]]

for Chemical Manufacturing Area Sources document (See Docket Item No. 
EPA-HQ-OAR-2008-0334-0087).
    The comments received on this issue demonstrate that the public had 
ample opportunity to comment on this issue and indeed did so. The EPA 
responded to those comments and sees no substantive reason to revisit 
this issue. Therefore, because the Petitioners did not demonstrate that 
it was impracticable to comment on this issue during the comment period 
on the proposed rule and the Petitioners did comment on it during the 
comment period for the 2008 proposal, the EPA is denying 
reconsideration of this issue.

C. Pollution Prevention Alternative

    Petitioners stated that the EPA should revise the CMAS final rule 
to include a pollution prevention alternative. The Petitioners argued 
that there would be broad interest in this alternative and that data 
would be made available for the EPA to specify requirements for such an 
alternative.
    This issue was contained in public comments submitted in response 
to the CMAS proposed rule published on October 6, 2008 (73 FR 58352). 
The EPA's responses to the comments are presented in section 4.7 (pp. 
4-7--4-8) of the October 2009 Response to Comments Regarding National 
Emission Standards for Hazardous Air Pollutants for Chemical 
Manufacturing Area Sources document (See Docket Item No. EPA-HQ-OAR-
2008-0334-0087).
    The comments received on this issue demonstrate that the public had 
ample opportunity to comment on this issue, and indeed did so. The EPA 
responded to those comments and sees no substantive reason to revisit 
this issue. Therefore, because the Petitioners did not demonstrate that 
it was impracticable to comment on this issue during the comment period 
on the proposed rule and the Petitioners did comment on it during the 
comment period for the 2008 proposal, the EPA is denying 
reconsideration of this issue.

VII. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 13563: Improving Regulation and Regulatory Review

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is a ``significant regulatory action'' because it may raise 
novel legal or policy issues. Accordingly, the EPA submitted this 
action to the Office of Management and Budget (OMB) for review under 
Executive Order 12866 and Executive Order 13563 (76 FR 3821, January 
21, 2011), and any changes made in response to OMB recommendations have 
been documented in the docket for this action.

B. Paperwork Reduction Act

    The information collection requirements in this final rule have 
been submitted for approval to the OMB under the Paperwork Reduction 
Act, 44 U.S.C. 3501, et seq. The Information Collection Request (ICR) 
document prepared by the EPA has been assigned EPA ICR Number 2323.05. 
The information collection requirements are not enforceable until OMB 
approves them.
    The information requirements are based on notification, 
recordkeeping and reporting requirements in the NESHAP General 
Provisions (40 CFR part 63, subpart A), which are mandatory for all 
operators subject to national emission standards. These recordkeeping 
and reporting requirements are specifically authorized by section 114 
of the CAA (42 U.S.C. 7414). All information submitted to the EPA 
pursuant to the recordkeeping and reporting requirements for which a 
claim of confidentiality is made is safeguarded according to agency 
policies set forth in 40 CFR part 2, subpart B.
    For this final rule, the EPA is adding affirmative defense to the 
estimate of burden in the ICR. To provide the public with an estimate 
of the relative magnitude of the burden associated with an assertion of 
the affirmative defense position adopted by a source, the EPA has 
provided administrative adjustments to this ICR to show what the 
notification, recordkeeping and reporting requirements associated with 
the assertion of the affirmative defense might entail. The EPA's 
estimate for the required notification, reports and records for any 
individual incident, including the root cause analysis, totals $2,958 
and is based on the time and effort required of a source to review 
relevant data, interview plant employees and document the events 
surrounding a malfunction that has caused an exceedance of an emissions 
limit. The estimate also includes time to produce and retain the record 
and reports for submission to the EPA. The EPA provides this 
illustrative estimate of this burden because these costs are only 
incurred if there has been a violation and a source chooses to take 
advantage of the affirmative defense.
    Given the variety of circumstances under which malfunctions could 
occur, as well as differences among sources' operation and maintenance 
practices, we cannot reliably predict the severity and frequency of 
malfunction-related excess emissions events for a particular source. It 
is important to note that the EPA has no basis currently for estimating 
the number of malfunctions that would qualify for an affirmative 
defense. Current historical records would be an inappropriate basis, as 
source owners or operators previously operated their facilities in 
recognition that they were exempt from the requirement to comply with 
emissions standards during malfunctions. Of the number of excess 
emissions events reported by source operators, only a small number 
would be expected to result from a malfunction (based on the definition 
above), and only a subset of excess emissions caused by malfunctions 
would result in the source choosing to assert the affirmative defense. 
Thus, we believe the number of instances in which source operators 
might be expected to avail themselves of the affirmative defense will 
be extremely small. For this reason, we estimate no more than 2 or 3 
such occurrences for all sources subject to 40 CFR part 63, subpart 
VVVVVV over the 3-year period covered by this ICR. We expect to gather 
information on such events in the future and will revise this estimate 
as better information becomes available.
    An agency may not conduct or sponsor, and a person is not required 
to respond to, a collection of information unless it displays a 
currently valid OMB control number. The OMB control numbers for the 
EPA's regulations in 40 CFR are listed in 40 CFR part 9. When this ICR 
is approved by OMB, the agency will publish a technical amendment to 40 
CFR part 9 in the Federal Register to display the OMB control number 
for the approved information collection requirements contained in this 
final rule.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act generally requires an agency to 
prepare a regulatory flexibility analysis of any rule subject to notice 
and comment rulemaking requirements under the Administrative Procedures 
Act or any other statute unless the agency certifies that the rule will 
not have a significant economic impact on a substantial number of small 
entities. Small entities include small businesses, small organizations 
and small governmental jurisdictions.
    For purposes of assessing the impacts of this final rule on small 
entities, small entity is defined as: (1) A small business as defined 
by the Small Business Administration's regulations at 13 CFR

[[Page 75755]]

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 final rule on small 
entities, I certify that this action will not have a significant 
economic impact on a substantial number of small entities. This final 
rule will not impose any new requirements on any small entities because 
it does not impose any additional regulatory requirements beyond those 
already promulgated.

D. Unfunded Mandates Reform Act

    This action contains no federal mandates under the provisions of 
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 
1531-1538 for state, local or tribal governments or the private sector. 
This final rule imposes no enforceable duty on any state, local or 
tribal governments or the private sector. Therefore, this final rule is 
not subject to the requirements of sections 202 and 205 of the UMRA.
    This action is also not subject to the requirements of section 203 
of UMRA because it contains no regulatory requirements that might 
significantly or uniquely affect small governments. This rule finalizes 
amendments to aid with compliance but does not change the level of the 
standards in the rule.

E. Executive Order 13132: Federalism

    This action does not have federalism implications. It will not have 
substantial direct effects on the states, on the relationship between 
the national government and the states or on the distribution of power 
and responsibilities among the various levels of government, as 
specified in Executive Order 13132. This final rule will not impose 
direct compliance costs on state or local governments and will not 
preempt state law. Thus, Executive Order 13132 does not apply to this 
action.

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

    This final rule does not have tribal implications, as specified in 
Executive Order 13175 (65 FR 67249, November 9, 2000). It will not have 
substantial direct effects on tribal governments, on the relationship 
between the federal government and Indian tribes or on the distribution 
of power and responsibilities between the federal government and Indian 
tribes, as specified in Executive Order 13175. Thus, Executive Order 
13175 does not apply to this final rule.

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

    The EPA interprets Executive Order 13045 (62 FR 19885, April 23, 
1997) as applying to those regulatory actions that concern health or 
safety risks, such that the analysis required under section 5-501 of 
the Executive Order has the potential to influence the regulation. This 
final rule is not subject to Executive Order 13045 because it is based 
solely on technology performance. Further, this action does not relax 
the control measures on sources regulated by the final rule, and, 
therefore, will maintain the level of environmental protection.

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

    This action is not a ``significant energy action'' as defined in 
Executive Order 13211 (66 FR 28355, May 22, 2001), because it is not 
likely to have a significant adverse effect on the supply, distribution 
or use of energy. Further, this action does not change the level of 
standards already in place.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act (NTTAA) of 1995, Public Law No. 104-113, 12(d) (15 U.S.C. 272 note) 
directs the EPA to use voluntary consensus standards (VCS) in its 
regulatory activities, unless to do so would be inconsistent with 
applicable law or otherwise impractical. VCS are technical standards 
(e.g., materials specifications, test methods, sampling procedures and 
business practices) that are developed or adopted by VCS bodies. The 
NTTAA directs the EPA to provide Congress, through OMB, explanations 
when the agency decides not use available and applicable VCS.
    This final rulemaking does not involve technical standards. 
Therefore, the EPA did not consider the use of any VCS.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    Executive Order 12898 (59 FR 7629, February 16, 1994) establishes 
federal executive policy on environmental justice. Its main provision 
directs federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or environmental effects of their programs, 
policies and activities on minority populations and low-income 
populations in the United States.
    The EPA has determined that this final rule, as amended, will not 
have disproportionately high and adverse human health or environmental 
effects on minority or low-income populations because the rule 
amendments maintain the level of environmental protection for all 
affected populations without having any disproportionately high and 
adverse human health or environmental effects on any population, 
including any minority or low-income population. This action does not 
relax the control measures on sources regulated by the final rule, and, 
therefore, will not cause emissions increases from these sources.

K. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A Major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2). This rule will be effective December 21, 2012.

List of Subjects in 40 CFR Part 63

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Hazardous substances.

    Dated: December 14, 2012.
Lisa P. Jackson,
Administrator.

    For the reasons cited in the preamble, title 40, chapter I, part 63 
of the Code

[[Page 75756]]

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 VVVVVV--[AMENDED]

0
2. Lift the stay of subpart VVVVVV published October 25, 2012 (77 FR 
65135).

0
3. In Sec.  63.11494, lift the stay on paragraph (e) published March 
14, 2011 (76 FR 13514).

0
4. Section 63.11494 is amended by:
0
a. Revising paragraph (a);
0
b. Adding paragraph (c)(1)(vii);
0
c. Revising the last sentence in paragraph (d) introductory text;
0
d. Revising paragraphs (e) and (f) to read as follows:


Sec.  63.11494  What are the applicability requirements and compliance 
dates?

    (a) Except as specified in paragraph (c) of this section, you are 
subject to this subpart if you own or operate a chemical manufacturing 
process unit (CMPU) that meets the conditions specified in paragraphs 
(a)(1) and (2) of this section.
    (1) The CMPU is located at an area source of hazardous air 
pollutant (HAP) emissions.
    (2) HAP listed in Table 1 to this subpart (Table 1 HAP) are present 
in the CMPU, as specified in paragraph (a)(2)(i), (ii), (iii), or (iv) 
of this section.
    (i) The CMPU uses as feedstock, any material that contains 
quinoline, manganese, and/or trivalent chromium at an individual 
concentration greater than 1.0 percent by weight, or any other Table 1 
HAP at an individual concentration greater than 0.1 percent by weight. 
To determine the Table 1 HAP content of feedstocks, you may rely on 
formulation data provided by the manufacturer or supplier, such as the 
Material Safety Data Sheet (MSDS) for the material. If the 
concentration in an MSDS is presented as a range, use the upper bound 
of the range.
    (ii) Quinoline is generated as byproduct and is present in the CMPU 
in any liquid stream (process or waste) at a concentration greater than 
1.0 percent by weight.
    (iii) Hydrazine and/or Table 1 organic HAP other than quinoline are 
generated as byproduct and are present in the CMPU in any liquid stream 
(process or waste), continuous process vent, or batch process vent at 
an individual concentration greater than 0.1 percent by weight.
    (iv) Hydrazine or any Table 1 HAP is produced as a product of the 
CMPU.
* * * * *
    (c) * * *
    (1) * * *
    (vii) Lead oxide production at Lead Acid Battery Manufacturing 
Facilities, subject to subpart PPPPPP of this part.
* * * * *
    (d) * * * A CMPU using only Table 1 metal HAP is required to 
control only total CAA section 112(b) metal HAP in accordance with 
Sec.  63.11495 and, if applicable, Sec.  63.11496(f).
* * * * *
    (e) Any area source that installed a federally-enforceable control 
device on an affected CMPU is required to obtain a permit under 40 CFR 
part 70 or 40 CFR part 71 if the control device on the affected CMPU is 
necessary to maintain the source's emissions at area source levels. For 
new and existing sources subject to this rule on December 21, 2012 and 
subject to title V as a result of this rule, a complete title V permit 
application must be submitted no later than December 21, 2013. New and 
existing sources that become subject to this rule after December 21, 
2012 must submit a complete title V permit application no later than 12 
months after becoming subject to this rule if the source is subject to 
title V as a result of this rule. Otherwise, you are exempt from the 
obligation to obtain a permit under 40 CFR part 70 or 40 CFR part 71, 
provided you are not otherwise required by law to obtain a permit under 
40 CFR 70.3(a) or 40 CFR 71.3(a). Notwithstanding the previous 
sentence, you must continue to comply with the provisions of this 
subpart.
    (f) If you own or operate an existing affected source, you must 
achieve compliance with the applicable provisions in this subpart no 
later than March 21, 2013.
* * * * *

0
5. Section 63.11495 is amended by:
0
a. Revising paragraphs (a)(1) and (a)(3);
0
b. Adding paragraph (c) heading; and
0
c. Adding paragraph (d) to read as follows:


Sec.  63.11495  What are the management practices and other 
requirements?

    (a) * * *
    (1) Each process vessel must be equipped with a cover or lid that 
must be closed at all times when it is in organic HAP service or metal 
HAP service, except for manual operations that require access, such as 
material addition and removal, inspection, sampling and cleaning. This 
requirement does not apply to process vessels containing only metal HAP 
that are in a liquid solution or other form that will not result in 
particulate emissions of metal HAP (e.g., metal HAP that is in ingot, 
paste, slurry, or moist pellet form or other form).
* * * * *
    (3) You must conduct inspections of process vessels and equipment 
for each CMPU in organic HAP service or metal HAP service, as specified 
in paragraphs (a)(3)(i) through (v) of this section, to demonstrate 
compliance with paragraph (a)(1) of this section and to determine that 
the process vessels and equipment are sound and free of leaks. 
Alternatively, except when the subject CMPU contains metal HAP as 
particulate, inspections may be conducted while the subject process 
vessels and equipment are in VOC service, provided that leaks can be 
detected when in VOC service.
    (i) Inspections must be conducted at least quarterly.
    (ii) For these inspections, detection methods incorporating sight, 
sound, or smell are acceptable. Indications of a leak identified using 
such methods constitute a leak unless you demonstrate that the 
indications of a leak are due to a condition other than loss of HAP. If 
indications of a leak are determined not to be HAP in one quarterly 
monitoring period, you must still perform the inspection and 
demonstration in the next quarterly monitoring period.
    (iii) As an alternative to conducting inspections, as specified in 
paragraph (a)(3)(ii) of this section, you may use Method 21 of 40 CFR 
part 60, appendix A-7, with a leak definition of 500 ppmv to detect 
leaks. You may also use Method 21 with a leak definition of 500 ppmv to 
determine if indications of a leak identified during an inspection 
conducted in accordance with paragraph (a)(3)(ii) of this section are 
due to a condition other than loss of HAP. The procedures in this 
paragraph (a)(3)(iii) may not be used as an alternative to the 
inspection required by paragraph (a)(3)(ii) of this section for process 
vessels that contain metal HAP as particulate.
    (iv) Inspections must be conducted while the subject CMPU is 
operating.
    (v) No inspection is required in a calendar quarter during which 
the subject CMPU does not operate for the entire calendar quarter and 
is not in organic HAP service or metal HAP service. If the CMPU 
operates at all during a calendar quarter, an inspection is required.
* * * * *
    (c) Startup, shutdown and malfunction. * * *

[[Page 75757]]

    (d) General duty. At all times, you must operate and maintain any 
affected CMPU, including associated air pollution control equipment and 
monitoring equipment, in a manner consistent with safety and good air 
pollution control practices for minimizing emissions. Determination of 
whether such operation and maintenance procedures are being used will 
be based on information available to the Administrator, which may 
include, but is not limited to, monitoring results, review of operation 
and maintenance procedures, review of operation and maintenance 
records, and inspection of the CMPU.

0
6. Section 63.11496 is amended by:
0
a. Revising the last sentence in paragraph (c);
0
b. Revising paragraphs (d) and (e) introductory texts;
0
c. Adding paragraph (e)(6);
0
d. Adding a sentence to the end of paragraph (f) introductory text;
0
e. Revising paragraphs (f)(3)(i)(C), (f)(3)(ii), and (g)(1);
0
f. Revising the first sentence in paragraph (g)(2); and
0
g. Revising paragraphs (g)(4)(i) and (g)(5).
    The additions and revisions read as follows:


Sec.  63.11496  What are the standards and compliance requirements for 
process vents?

* * * * *
    (c) * * * The TRE index value for continuous process vents and the 
annual emissions from batch process vents shall be determined for the 
individual streams before they are combined, and prior to any control 
(e.g., by subtracting any emission contributions from storage tanks, 
continuous process vents or batch process vents, as applicable), in 
order to determine the most stringent applicable requirements.
    (d) Halogenated streams. You must determine if an emission stream 
is a halogenated vent stream by calculating the mass emission rate of 
halogen atoms in accordance with Sec.  63.115(d)(2)(v). Alternatively, 
you may elect to designate the emission stream as halogenated. If you 
use a combustion device to comply with the emission limits for organic 
HAP from a halogenated batch process vent or a halogenated continuous 
process vent, you must use a halogen reduction device to meet the 
emission limit in either paragraph (d)(1) or (d)(2) of this section and 
in accordance with Sec.  63.994 and the requirements referenced 
therein.
* * * * *
    (e) Alternative standard for organic HAP. Exceptions to the 
requirements for the alternative standard requirements specified in 
Tables 2 and 3 to this subpart and Sec.  63.2505 are specified in 
paragraphs (e)(1) through (6) of this section.
* * * * *
    (6) CEMS requirements and data reduction requirements for CEMS 
specified in Sec.  63.2450(j) apply.
* * * * *
    (f) Emissions from metal HAP process vents. * * * The requirements 
of this paragraph (f) do not apply to metal HAP process vents from CMPU 
containing only metal HAP that are in a liquid solution or other form 
that will not result in particulate emissions of metal HAP (e.g., metal 
HAP that is in ingot, paste, slurry, or moist pellet form or other 
form).
* * * * *
    (3) * * *
    (i) * * *
    (C) Operation and maintenance plan for the control device 
(including a preventative maintenance schedule consistent with the 
manufacturer's instructions for routine and long-term maintenance) and 
continuous monitoring system (CMS).
* * * * *
    (ii) You must conduct a performance test or an engineering 
assessment for each CMPU subject to a HAP metals emissions limit in 
Table 4 to this subpart and report the results in your Notification of 
Compliance Status (NOCS). Each performance test or engineering 
assessment must be conducted under representative operating conditions, 
and sampling for each performance test must be conducted at both the 
inlet and outlet of the control device. Upon request, you shall make 
available to the Administrator such records as may be necessary to 
determine the conditions of performance tests. If you own or operate an 
existing affected source, you are not required to conduct a performance 
test if a prior performance test was conducted within the 5 years prior 
to the effective date using the same methods specified in paragraph 
(f)(3)(iii) of this section, and, either no process changes have been 
made since the test, or, if you can demonstrate that the results of the 
performance test, with or without adjustments, reliably demonstrate 
compliance despite process changes.
* * * * *
    (g) * * *
    (1) Requirements for performance tests. (i) The requirements 
specified in Sec.  63.2450(g)(1) through (4) apply instead of, or in 
addition to, the requirements specified in 40 CFR part 63, subpart SS.
    (ii) Upon request, you shall make available to the Administrator, 
such records as may be necessary to determine the conditions of 
performance tests.
    (2) Design evaluation. To determine initial compliance with a 
percent reduction or outlet concentration emission limit, you may elect 
to conduct a design evaluation as specified in Sec.  63.1257(a)(1) 
instead of a performance test as specified in subpart SS of this part 
63. * * *
* * * * *
    (4) * * *
    (i) You may measure pH or caustic strength of the scrubber effluent 
at least once per day for any halogen scrubber within a CMPU subject to 
this rule.
* * * * *
    (5) Startup, shutdown, malfunction (SSM). Sections 63.996(c)(2)(ii) 
and 63.998(b)(2)(iii), (b)(6)(i)(A), (c)(1)(ii)(E) and (d)(3) do not 
apply for the purposes of this subpart.
* * * * *

0
7. Section 63.11497 is amended by adding paragraph (d) to read as 
follows:


Sec.  63.11497  What are the standards and compliance requirements for 
storage tanks?

* * * * *
    (d) Combustion of halogenated streams. If you use a combustion 
device to comply with the emission limits for organic HAP from a 
halogenated vent stream from a storage tank, you must reduce emissions 
in accordance with Sec.  63.11496(d) and the requirements referenced 
therein.

0
8. Section 63.11498 is amended by revising paragraph (a)(2) to read as 
follows:


Sec.  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.
* * * * *

0
9. Section 63.11500 is amended by revising paragraph (a) to read as 
follows:


Sec.  63.11500  What compliance options do I have if part of my plant 
is subject to both this subpart and another Federal standard?

* * * * *
    (a) Compliance with other subparts of this part 63. (1) If any part 
of a CMPU that is subject to the provisions of this

[[Page 75758]]

subpart is also subject to the provisions of another subpart of 40 CFR 
part 63, then compliance with any of the requirements in the other 
subpart of this part 63 that are at least as stringent as the 
corresponding requirements in this subpart VVVVVV constitutes 
compliance with this subpart VVVVVV.
    (2) After the compliance dates specified in Sec.  63.11494, at an 
offsite reloading or cleaning facility subject to Sec.  63.1253(f), as 
referenced from Sec.  63.2470(e) and Table 4 to subpart VVVVVV, 
compliance with the monitoring, recordkeeping, and reporting provisions 
of any other subpart of this part 63 constitutes compliance with the 
monitoring, recordkeeping, and reporting provisions of Sec.  
63.1253(f)(7)(ii) or (iii). You must identify in your notification of 
compliance status report required by Sec.  63.11501(b) the subpart of 
this part 63 with which the owner or operator of the offsite reloading 
or cleaning facility complies.
* * * * *

0
10. Section 63.11501 is amended by:
0
a. Revising the section heading;
0
b. Revising the last sentence in paragraph (c) introductory text;
0
c. Revising paragraph (c)(1) introductory text;
0
d. Adding paragraphs (c)(1)(vii) and (c)(1)(viii);
0
e. Revising paragraph (c)(4)(i);
0
f. Adding paragraph (c)(8);
0
g. Revising the last sentence in paragraph (d) introductory text; and
0
h. Adding paragraphs (d)(8) and (e) to read as follows:


Sec.  63.11501  What are the notification, recordkeeping, and reporting 
requirements, and how may I assert an affirmative defense for violation 
of emission standards during malfunction?

* * * * *
    (c) Recordkeeping. * * * If you are subject, you must comply with 
the recordkeeping and reporting requirements of Sec.  63.10(b)(2)(iii) 
and (vi) through (xiv), and the applicable requirements specified in 
paragraphs (c)(1) through (8) of this section.
    (1) For each CMPU subject to this subpart, you must keep the 
records specified in paragraphs (c)(1)(i) through (viii) of this 
section.
* * * * *
    (vii) Records of the date, time, and duration of each malfunction 
of operation of process equipment, control devices, recovery devices, 
or continuous monitoring systems used to comply with this subpart that 
causes a failure to meet a standard. The record must include a list of 
the affected sources or equipment, an estimate of the volume of each 
regulated pollutant emitted over the standard, and a description of the 
method used to estimate the emissions.
    (viii) Records of actions taken during periods of malfunction to 
minimize emissions in accordance with Sec.  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 Sec.  63.1065(a).
* * * * *
    (8) For continuous process vents subject to Table 3 to this 
subpart, keep records of the occurrence and duration of each startup 
and shutdown of operation of process equipment, or of air pollution 
control and monitoring equipment.
    (d) * * * Reports are required only for semiannual periods during 
which you experienced any of the events described in paragraphs (d)(1) 
through (8) of this section.
* * * * *
    (8) Malfunctions. If a malfunction occurred during the reporting 
period, the report must include the number of instances of malfunctions 
that caused emissions in excess of a standard. For each malfunction 
that caused emissions in excess of a standard, the report must include 
a list of the affected sources or equipment, an estimate of the volume 
of each regulated pollutant emitted over the standard, and a 
description of the method used to estimate the emissions. The report 
must also include a description of actions you took during a 
malfunction of an affected source to minimize emissions in accordance 
with Sec.  63.11495(d), including actions taken to correct a 
malfunction.
    (e) Affirmative defense for violation of emission standards during 
malfunction. In response to an action to enforce the standards set 
forth in Sec. Sec.  63.11495 through 63.11499, you may assert an 
affirmative defense to a claim for civil penalties for violations of 
such standards that are caused by malfunction, as defined at 40 CFR 
63.2. Appropriate penalties may be assessed if you fail to meet your 
burden of proving all of the requirements in the affirmative defense. 
The affirmative defense shall not available for claims for injunctive 
relief.
    (1) To establish the affirmative defense in any action to enforce 
such a standard, you must timely meet the notification requirements in 
paragraph (e)(2) of this section, and must prove by a preponderance of 
evidence that:
    (i) The violation:
    (A) Was caused by a sudden, infrequent, and unavoidable failure of 
air pollution control equipment, process equipment, or a process to 
operate in a normal or usual manner; and
    (B) Could not have been prevented through careful planning, proper 
design, or better operation and maintenance practices; and
    (C) Did not stem from any activity or event that could have been 
foreseen and avoided, or planned for; and
    (D) Was not part of a recurring pattern indicative of inadequate 
design, operation, or maintenance; and
    (ii) Repairs were made as expeditiously as possible when a 
violation occurred. Off-shift and overtime labor were used, to the 
extent practicable to make these repairs; and
    (iii) The frequency, amount, and duration of the violation 
(including any bypass) were minimized to the maximum extent 
practicable; and
    (iv) If the violation resulted from a bypass of control equipment 
or a process, then the bypass was unavoidable to prevent loss of life, 
personal injury, or severe property damage; and
    (v) All possible steps were taken to minimize the impact of the 
violation on ambient air quality, the environment and human health; and
    (vi) All emissions monitoring and control systems were kept in 
operation if at all possible, consistent with safety and good air 
pollution control practices; and
    (vii) All of the actions in response to the violation were 
documented by properly signed, contemporaneous operating logs; and
    (viii) At all times, the affected CMPU was operated in a manner 
consistent with good practices for minimizing emissions; and
    (ix) A written root cause analysis has been prepared, the purpose 
of which is to determine, correct, and eliminate the primary causes of 
the malfunction and the violation resulting from the malfunction event 
at issue. The analysis must also specify, using best monitoring methods 
and engineering judgment, the amount of any emissions that were the 
result of the malfunction.
    (2) Report. If you seek to assert an affirmative defense, you must 
submit a written report to the Administrator, with all necessary 
supporting documentation, that you have met the requirements set forth 
in paragraph (e)(1) of this section. This affirmative defense report 
must be included in the first periodic compliance report,

[[Page 75759]]

deviation report, or excess emission report otherwise required after 
the initial occurrence of the violation of the relevant standard (which 
may be the end of any applicable averaging period). If such compliance 
report, deviation report, or excess emission report is due less than 45 
days after the initial occurrence of the violation, the affirmative 
defense report may be included in the second compliance report, 
deviation report, or excess emission report due after the initial 
occurrence of the violation of the relevant standard.

0
11. Section 63.11502 is amended by:
0
a. In paragraph (a) adding in alphabetical order the terms ``Batch 
operation (Sec.  63.2550),'' ``Continuous operation (Sec.  63.2550),'' 
``Control device (Sec.  63.111),'' and ``Isolated intermediate (Sec.  
63.2550),'' and removing the term ``Family of materials (Sec.  
63.2550)''; and
0
b. In paragraph (b) adding in alphabetical order definitions for 
``Affirmative defense,'' ``Engineering assessment,'' ``Family of 
materials,'' ``Hazardous waste treatment,'' ``In VOC service,'' ``Point 
of determination,'' and ``Uncontrolled emissions,'' revising the second 
sentence of the definition of ``Batch process vent,'' revising 
paragraph (1) of the definition of ``Chemical manufacturing process,'' 
and revising the definitions for ``In metal HAP service,'' ``In organic 
HAP service,'' ``Metal HAP process vent,'' and ``Product'' to read as 
follows:


Sec.  63.11502  What definitions apply to this subpart?

* * * * *
    (b) * * *
    Affirmative defense means, in the context of an enforcement 
proceeding, a response or defense put forward by a defendant, regarding 
which the defendant has the burden of proof, and the merits of which 
are independently and objectively evaluated in a judicial or 
administrative proceeding.
* * * * *
    Batch process vent * * * Batch process vents include vents from 
batch operations and vents with intermittent flow from continuous 
operations that are not combined with any stream that originated as a 
continuous gas stream from the same continuous process. * * *
* * * * *
    Chemical manufacturing process * * *
    (1) All cleaning operations;
* * * * *
    Engineering assessment means, but is not limited to, the following:
    (1) Previous test results provided the tests are representative of 
current operating practices at the process unit.
    (2) Bench-scale or pilot-scale test data representative of the 
process under representative operating conditions.
    (3) Maximum flow rate, TOC emission rate, organic HAP emission 
rate, metal HAP emission rate, or net heating value limit specified or 
implied within a permit limit applicable to the process vent.
    (4) Design analysis based on accepted chemical engineering 
principles, measurable process parameters, or physical or chemical laws 
or properties. Examples of analytical methods include, but are not 
limited to:
    (i) Use of material balances based on process stoichiometry to 
estimate maximum organic HAP or metal HAP concentrations;
    (ii) Estimation of maximum flow rate based on physical equipment 
design such as pump or blower capacities;
    (iii) Estimation of TOC, organic HAP, or metal HAP concentrations 
based on saturation conditions; or
    (iv) Estimation of maximum expected net heating value based on the 
vent stream concentration of each organic compound or, alternatively, 
as if all TOC in the vent stream were the compound with the highest 
heating value.
    (5) All data, assumptions, and procedures used in the engineering 
assessment shall be documented.
* * * * *
    Family of materials means a grouping of materials that have the 
same basic composition or the same basic end use or functionality; are 
produced using the same basic feedstocks, the same manufacturing 
equipment configuration and in the same sequence of steps; and whose 
production results in emissions of the same Table 1 HAP at 
approximately the same rate per pound of product produced. Examples of 
families of materials include multiple grades of same product or 
different variations of a product (e.g., blue, black and red resins).
* * * * *
    Hazardous waste treatment, as used in the wastewater requirements, 
means treatment in any of the following units:
    (1) A hazardous waste incinerator for which you have been issued a 
final permit under 40 CFR part 270 and comply with the requirements of 
40 CFR part 264, subpart O, for which you have certified compliance 
with the interim status requirements of 40 CFR part 265, subpart O, or 
for which you have submitted a Notification of Compliance under 40 CFR 
63.1207(j) and comply with the requirements of 40 CFR part 63, subpart 
EEE at all times (including times when non-hazardous waste is being 
burned);
    (2) A process heater or boiler for which you have been issued a 
final permit under 40 CFR part 270 and comply with the requirements of 
40 CFR part 266, subpart H, for which you have certified compliance 
with the interim status requirements of 40 CFR part 266, subpart H, or 
for which you have submitted a Notification of Compliance under 40 CFR 
63.1207(j) and comply with the requirements of 40 CFR part 63, subpart 
EEE at all times (including times when non-hazardous waste is being 
burned); or
    (3) An underground injection well for which you have been issued a 
final permit under 40 CFR part 270 or 40 CFR part 144 and comply with 
the requirements of 40 CFR part 122.
    In metal HAP service means that a process vessel or piece of 
equipment either contains or contacts a feedstock, byproduct, or 
product that contains metal HAP. A process vessel is no longer in metal 
HAP service after the vessel has been emptied to the extent practicable 
(i.e., a vessel with liquid left on process vessel walls or as bottom 
clingage, but not in pools, due to floor irregularity, is considered 
completely empty) and any cleaning has been completed.
    In organic HAP service means that a process vessel or piece of 
equipment either contains or contacts a feedstock, byproduct, or 
product that contains an organic HAP, excluding any organic HAP used in 
manual cleaning activities. A process vessel is no longer in organic 
HAP service after the vessel has been emptied to the extent practicable 
(i.e., a vessel with liquid left on process vessel walls or as bottom 
clingage, but not in pools, due to floor irregularity, is considered 
completely empty) and any cleaning has been completed.
    In VOC service means that a process vessel or piece of equipment 
either contains or contacts a fluid that contains VOC.
* * * * *
    Metal HAP process vent means the point of discharge to the 
atmosphere (or inlet to a control device, if any) of a metal HAP-
containing gas stream from any CMPU at an affected source containing at 
least 50 ppmv metal HAP. The metal HAP concentration may be determined 
using any of the following: process knowledge, an engineering 
assessment, or test data.
* * * * *

[[Page 75760]]

    Point of determination means ``point of determination'' as defined 
in Sec.  63.111 in subpart G of this part, except:
    (1) The reference to Table 8 or Table 9 compounds means Table 9 
(subpart G) or Table 7 (subpart VVVVVV) compounds;
    (2) The reference to ``as determined in Sec.  63.144 of this 
subpart'' does not apply for the purposes of this subpart; and
    (3) The point of determination is made at the point where the 
stream exits the CMPU. If a recovery device is used, the point of 
determination is after the last recovery device.
    Product means a compound or chemical which is manufactured as the 
intended product of the CMPU. Products include co-products. By-
products, impurities, wastes, and trace contaminants are not considered 
products.
* * * * *
    Uncontrolled emissions means organic HAP process vent emissions or 
metal HAP process vent emissions, as applicable, at the outlet of the 
last recovery device, if any, and prior to any control device. In the 
absence of both recovery devices and control devices, uncontrolled 
emissions are the emissions discharged to the atmosphere.
* * * * *

0
12. Table 3 to subpart VVVVVV of part 63 is revised to read as follows:

 Table 3 to Subpart VVVVVV of Part 63--Emission Limits and Compliance Requirements for Continuous Process Vents
 [As required in Sec.   63.11496, you must comply with the requirements for continuous process vents as shown in
                                              the following table]
----------------------------------------------------------------------------------------------------------------
              For . . .                              You must . . .                         Except . . .
----------------------------------------------------------------------------------------------------------------
1. Each continuous process vent with   a. Reduce emissions of total organic HAP    i. Compliance may be based on
 a TRE <=1.0.                           by >=95 percent by weight (>=85 percent     either total organic HAP or
                                        by weight for periods of startup or         TOC; and
                                        shutdown) or to <=20 ppmv by routing       ii. As specified in Sec.
                                        emissions through a closed vent system to   63.11496(g).
                                        any combination of control devices
                                        (except a flare) in accordance with the
                                        requirements of Sec.   63.982(c) and the
                                        requirements referenced therein; or
 
                                       b. Reduce emissions of total organic by     i. Not applicable.
                                        HAP by routing all emissions through a
                                        closed-vent system to a flare (except
                                        that a flare may not be used to control
                                        halogenated vent streams) in accordance
                                        with the requirements of Sec.   63.982(b)
                                        and the requirements referenced therein,
                                        or
 
                                       c. Comply with the alternative standard     i. As specified in Sec.
                                        specified in Sec.   63.2505 and the         63.11496(e).
                                        requirements referenced therein
2. Halogenated vent stream that is     a. Comply with the requirements for         .............................
 controlled through combustion.         halogen scrubbers in Sec.   63.11496(d).
3. Each continuous process vent with   a. Comply with the requirements of Sec.     .............................
 a TRE >1.0 but <=4.0.                  63.982(e) and the requirements specified
                                        therein if a recovery device, as defined
                                        in Sec.   63.11502, is used to maintain a
                                        TRE >1.0 but <=4.0.
----------------------------------------------------------------------------------------------------------------


0
13. The entry for Item 1 of Table 5 to subpart VVVVVV of part 63 is 
revised to read as follows:
* * * * *

       Table 5 to Subpart VVVVVV of Part 63--Emission Limits and Compliance Requirements for Storage Tanks
----------------------------------------------------------------------------------------------------------------
            For each . . .                           You must . . .                         Except . . .
----------------------------------------------------------------------------------------------------------------
1. Storage tank with a design          a. Comply with the requirements of subpart  i. All required seals must be
 capacity >=40,000 gallons, storing     WW of this part;                            installed by the compliance
 liquid that contains organic HAP                                                   date in Sec.   63.11494.
 listed in Table 1 to this subpart,
 and for which the maximum true vapor
 pressure (MTVP) of total organic HAP
 at the storage temperature is >=5.2
 kPa and <76.6 kPa..

[[Page 75761]]

 
                                       b. Reduce total organic HAP emissions by    i. Compliance may be based on
                                        >=95 percent by weight by operating and     either total organic HAP or
                                        maintaining a closed-vent system and        TOC;
                                        control device (other than a flare) in     ii. When the term storage
                                        accordance with Sec.   63.982(c); or        vessel is used in subpart SS
                                                                                    of this part, the term
                                                                                    storage tank, surge control
                                                                                    vessel, or bottoms receiver,
                                                                                    as defined in Sec.
                                                                                    63.11502 of this subpart,
                                                                                    applies; and
                                                                                   iii. The requirements do not
                                                                                    apply during periods of
                                                                                    planned routine maintenance
                                                                                    of the control device, as
                                                                                    specified in Sec.
                                                                                    63.11497(b).
                                       c. Reduce total HAP emissions by operating  i. The requirements do not
                                        and maintaining a closed-vent system and    apply during periods of
                                        a flare in accordance with Sec.             planned routine maintenance
                                        63.982(b); or                               of the flare, as specified
                                                                                    in Sec.   63.11497(b); and
                                                                                   ii. When the term storage
                                                                                    vessel is used in subpart SS
                                                                                    of this part, it means
                                                                                    storage tank, surge control
                                                                                    vessel, or bottoms receiver,
                                                                                    as defined in Sec.
                                                                                    63.11502 of this subpart.
                                       d. Vapor balance in accordance with Sec.    i. To comply with Sec.
                                        63.2470(e); or                              63.1253(f)(6)(i), the owner
                                                                                    or operator of an offsite
                                                                                    cleaning or reloading
                                                                                    facility must comply with
                                                                                    Sec.   63.11494 and Sec.
                                                                                    63.11502 instead of
                                                                                    complying with Sec.
                                                                                    63.1253(f)(7)(ii), except as
                                                                                    specified in item 1.d.ii and
                                                                                    1.2.iii of this table.
                                                                                   ii. The reporting
                                                                                    requirements in Sec.
                                                                                    63.11501 do not apply to the
                                                                                    owner or operator of the
                                                                                    offsite cleaning or
                                                                                    reloading facility.
                                                                                   iii. As an alternative to
                                                                                    complying with the
                                                                                    monitoring, recordkeeping,
                                                                                    and reporting provisions in
                                                                                    Sec.  Sec.   63.11494
                                                                                    through 63.11502, the owner
                                                                                    or operator of an offsite
                                                                                    cleaning or reloading
                                                                                    facility may comply as
                                                                                    specified in Sec.   63.11500
                                                                                    with any other subpart of
                                                                                    this part 63 which has
                                                                                    monitoring, recordkeeping,
                                                                                    and reporting provisions as
                                                                                    specified in Sec.
                                                                                    63.11500.
                                       e. Route emissions to a fuel gas system or  i. When the term storage
                                        process in accordance with the              vessel is used in subpart SS
                                        requirements in Sec.   63.982(d) and the    of this part, it means
                                        requirements referenced therein.            storage tank, surge control
                                                                                    vessel, or bottoms receiver,
                                                                                    as defined in Sec.
                                                                                    63.11502.
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

* * * * *

0
14. Table 6 to subpart VVVVVV of part 63 is revised to read as follows:

    Table 6 to Subpart VVVVVV of Part 63--Emission Limits and Compliance Requirements for Wastewater Systems
  [As required in Sec.   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           i. Maintain records
                                        wastewater treatment or hazardous waste     identifying each wastewater
                                        treatment                                   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.

[[Page 75762]]

 
2. Wastewater stream containing        a. Use a decanter, steam stripper, thin     i. For the water phase,
 partially soluble HAP at a             film evaporator, or distillation unit       comply with the requirements
 concentration >=10,000 ppmw and        to separate the water phase from the        in Item 1 of this table, and
 separate organic and water phases.     organic phase(s); or                       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   i. Keep records of the
                                        to onsite treatment as a hazardous waste,   wastewater streams subject
                                        or hard pipe the entire wastewater stream   to this requirement and the
                                        to a point of transfer to onsite or         disposition of the
                                        offsite hazardous waste treatment.          wastewater streams.
----------------------------------------------------------------------------------------------------------------


0
15. Table 8 to subpart VVVVVV of part 63 is revised to read as follows:

   Table 8 to Subpart VVVVVV of Part 63--Emission Limits and Compliance Requirements for Heat Exchange Systems
[As required in Sec.   63.11499, you must comply with the requirements for heat exchange systems as shown in the
                                                following table]
----------------------------------------------------------------------------------------------------------------
              For . . .                              You must . . .                         Except . . .
----------------------------------------------------------------------------------------------------------------
1. Each heat exchange system with a    a. Comply with the monitoring requirements  i. The reference to monthly
 cooling water flow rate >=8,000 gal/   in Sec.   63.104(c), the leak repair        monitoring for the first 6
 min and not meeting one or more of     requirements in Sec.   63.104(d) and (e),   months in Sec.
 the conditions in Sec.   63.104(a).    and the recordkeeping and reporting         63.104(b)(1) and (c)(1)(iii)
                                        requirements in Sec.   63.104(f); or        does not apply. Monitoring
                                                                                    shall be no less frequent
                                                                                    than quarterly;
                                                                                   ii. The reference in Sec.
                                                                                    63.104(f)(1) to record
                                                                                    retention requirements in
                                                                                    Sec.   63.103(c)(1) does not
                                                                                    apply. Records must be
                                                                                    retained as specified in
                                                                                    Sec.  Sec.   63.10(b)(1) and
                                                                                    63.11501(c); and
                                                                                   iii. The reference in Sec.
                                                                                    63.104(f)(2) to ``the next
                                                                                    semi-annual periodic report
                                                                                    required by Sec.
                                                                                    63.152(c)'' means the next
                                                                                    semi-annual compliance
                                                                                    report required by Sec.
                                                                                    63.11501(f).
                                       b. Comply with the heat exchange system     i. Not applicable.
                                        requirements in Sec.   63.104(b) and the
                                        requirements referenced therein.
----------------------------------------------------------------------------------------------------------------


0
16. Table 9 to subpart VVVVVV of part 63 is amended by:
0
a. Revising the entry for 63.6(e)(1)(i) and (ii), (e)(3), and (f)(1);
0
b. Removing the entry for 63.7(a)(2), (b), (d), (e)(1)-(e)(3);
0
c. Adding new entries for 63.7(a)(2), (b), (d), (e)(2)-(e)(3) and 
63.7(e)(1);
0
d. Removing the entry for 63.8(a)(1), (a)(4), (b), (c)(1)-(c)(3), 
(f)(1)-(5);
0
e. Adding new entries for 63.8(a)(1), (a)(4), (b), (c)(1)(ii), (c)(2)-
(c)(3), (f)(1)-(5), 63.8(c)(1)(i), and 63.8(c)(1)(iii);
0
f. Revising the entry for 63.8(c)(4);
0
g. Removing the entry for 63.8(c)(6)-(c)(8), (d), (e), (f)(6);
0
h. Adding new entries for 63.8(c)(6)-(c)(8), (d)(1)-(d)(2), (e), (f)(6) 
and 63.8(d)(3);
0
i. Revising the entry for 63.8(g)(5);
0
j. Adding a new entry for 63.9(i);
0
k. Removing the entry for 63.10(b)(2)(i)-(b)(2)(v);
0
l. Adding new entries for 63.10(b)(2)(i), 63.10(b)(2)(ii), 
63.10(b)(2)(iii), and 63.10(b)(2)(iv) and (v);
0
m. Removing the entry for 63.10(c)(7)-(c)(8), (c)(10)-(c)(12), (c)(15);
0
n. Adding new entries for 63.10(c)(7)-(8), 63.10(c)(10), 63.10(c)(11), 
63.10(c)(12), and 63.10(c)(15); and
0
o. Revising the entry for 63.10(d)(5).

[[Page 75763]]

    The additions and revisions read as follows:

           Table 9 to Subpart VVVVVV of Part 63--Applicability of General Provisions to Subpart VVVVVV
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
                                                           Applies to subpart
            Citation                      Subject                VVVVVV                   Explanation
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
63.6(e)(1)(i) and (ii), (e)(3),   SSM Requirements.......  No................  See Sec.   63.11495(d) for
 and (f)(1).                                                                    general duty requirement.
 
                                                  * * * * * * *
63.7(a)(2), (b), (d), (e)(2)-     Performance Testing      Yes/No............  Requirements apply if conducting
 (e)(3).                           Schedule, Notification                       test for metal HAP control;
                                   of Performance Test,                         requirements in Sec.  Sec.
                                   Performance Testing                          63.997(c)(1), (d), (e), and
                                   Facilities, and                              63.999(a)(1) apply, as
                                   Conduct of Performance                       referenced in Sec.
                                   Tests.                                       63.11496(g), if conducting test
                                                                                for organic HAP or hydrogen
                                                                                halide and halogen HAP control
                                                                                device.
63.7(e)(1)......................  Performance Testing....  No................  See Sec.   63.11496(f)(3)(ii) if
                                                                                conducting a test for metal HAP
                                                                                emissions. See Sec.  Sec.
                                                                                63.11496(g) and 63.997(e)(1) if
                                                                                conducting a test for continuous
                                                                                process vents or for hydrogen
                                                                                halide and halogen emissions.
                                                                                See Sec.  Sec.   63.11496(g) and
                                                                                63.2460(c) if conducting a test
                                                                                for batch process vents.
63.8(a)(1), (a)(4), (b),          Monitoring Requirements  Yes...............  .................................
 (c)(1)(ii), (c)(2)-(c)(3),
 (f)(1)-(5).
63.8(c)(1)(i)...................  General Duty to          No................  .................................
                                   Minimize Emissions and
                                   CMS Operation.
63.8(c)(1)(iii).................  Requirement to Develop   No................  .................................
                                   SSM Plan for CMS.
 
                                                  * * * * * * *
63.8(c)(4)......................  .......................  Yes...............  Only for CEMS. CPMS requirements
                                                                                in 40 CFR part 63, subpart SS
                                                                                are referenced from Sec.
                                                                                63.11496. Requirements for COMS
                                                                                do not apply because subpart
                                                                                VVVVVV does not require COMS.
 
                                                  * * * * * * *
63.8(c)(6)-(c)(8), (d)(1)-        .......................  Yes...............  Requirements apply only if you
 (d)(2), (e), (f)(6).                                                           use a continuous emission
                                                                                monitoring system (CEMS) to
                                                                                demonstrate compliance with the
                                                                                alternative standard in Sec.
                                                                                63.11496(e).
63.8(d)(3)......................  Written Procedures for   Yes...............  Requirement applies except for
                                   CMS.                                         last sentence, which refers to
                                                                                an SSM plan. SSM plans are not
                                                                                required.
 
                                                  * * * * * * *
63.8(g)(5)......................  .......................  No................  Data reduction requirements for
                                                                                CEMS are specified in Sec.
                                                                                63.2450(j)(4), as referenced
                                                                                from Sec.   63.11496. CPMS
                                                                                requirements are specified in 40
                                                                                CFR part 63, subpart SS, as
                                                                                referenced from Sec.   63.11496.
 
                                                  * * * * * * *
63.9(i).........................  .......................  Yes...............  .................................
 
                                                  * * * * * * *
63.10(b)(2)(i)..................  Recordkeeping of         No................  See Sec.   63.11501(c)(8) for
                                   Occurrence and                               recordkeeping of occurrence and
                                   Duration of Startups                         duration of each startup and
                                   and Shutdowns.                               shutdown for continuous process
                                                                                vents that are subpart to Table
                                                                                3 to this subpart.
63.10(b)(2)(ii).................  Recordkeeping of         No................  See Sec.   63.11501(c)(1)(vii)
                                   Malfunctions.                                and (viii) for recordkeeping of
                                                                                (1) date, time, duration, and
                                                                                volume of excess emissions and
                                                                                (2) actions taken during
                                                                                malfunction.
63.10(b)(2)(iii)................  Maintenance Records....  Yes...............  .................................
63.10(b)(2)(iv) and (v).........  Actions Taken to         No................  .................................
                                   Minimize Emissions
                                   During SSM.
 

[[Page 75764]]

 
                                                  * * * * * * *
63.10(c)(7)-(8).................  Additional               Yes...............  .................................
                                   Recordkeeping
                                   Requirements for CMS--
                                   Identifying
                                   Exceedances and Excess
                                   Emissions.
63.10(c)(10)....................  Recordkeeping Nature     No................  See Sec.   63.11501(c)(1)(vii)
                                   and Cause of                                 and (viii) for malfunctions
                                   Malfunctions.                                recordkeeping requirements.
63.10(c)(11)....................  Recording Corrective     No................  See Sec.   63.11501(c)(1)(vii)
                                   Actions.                                     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 Sec.   63.11501(d)(8) for
                                                                                reporting requirements for
                                                                                malfunctions.
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

[FR Doc. 2012-30698 Filed 12-20-12; 8:45 am]
BILLING CODE 6560-50-P