

[Federal Register: December 21, 2005 (Volume 70, Number 244)]
[Rules and Regulations]               
[Page 75923-75927]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr21de05-17]                         


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Part V





Environmental Protection Agency





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40 CFR Part 63



National Emission Standards for Hazardous Air Pollutants: Miscellaneous 
Coating Manufacturing; Final Rule


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 63

[OAR-2003-0178; FRL-8011-6]
RIN 2060-AM72

 
National Emission Standards for Hazardous Air Pollutants: 
Miscellaneous Coating Manufacturing

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule; amendments.

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SUMMARY: On May 13, 2005 (70 FR 25676), EPA issued direct final rule 
amendments and a parallel proposal to provide additional compliance 
options for the national emission standards for hazardous air 
pollutants (NESHAP) for Miscellaneous Coating Manufacturing. One 
proposed amendment specified that compliance with the weight percent 
hazardous air pollutant (HAP) limit in coatings products may be 
demonstrated based on formulation data. However, the proposed amendment 
did not include de minimis limits for HAP in formulation data as 
allowed in other surface coating NESHAP. Due to adverse comment, we 
withdrew that provision of the direct final, and we are now issuing 
final amendments to specify that certain raw material formulation data 
as supplied to coating manufacturers may be used to demonstrate 
compliance with the weight percent HAP limit.

DATES: Effective Date: December 21, 2005.

ADDRESSES: Docket ID No. OAR-2003-0178 contains supporting information 
used in developing the NESHAP. All documents in the docket are listed 
in the EDOCKET index at http://docket.epa.gov/edkpub/index.jsp. 

Although listed in the index, some information is not publicly 
available, i.e., Confidential Business Information (CBI) or other 
information whose disclosure is restricted by statute. Certain other 
material, such as copyrighted material, is not placed on the Internet 
and will be publicly available only in hard copy form. Publicly 
available docket materials are available either electronically in 
EDOCKET or in hard copy at the Air and Radiation Docket, EPA/DC, EPA 
West, Room B102, 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 
Air Docket is (202) 566-1742.

FOR FURTHER INFORMATION CONTACT: Mr. Randy McDonald, Organic Chemicals 
Group, Emission Standards Division (Mail Code C504-04), Office of Air 
Planning and Standards, EPA, Research Triangle Park, North Carolina 
27711, telephone number (919) 541-5402, electronic mail address 
mcdonald.randy@epa.gov.


SUPPLEMENTARY INFORMATION: Regulated Entities. The regulated category 
and entities affected by this action include:

------------------------------------------------------------------------
                                                  Examples of regulated
            Category                 NAICS*              entities
------------------------------------------------------------------------
Industry.......................      3255, 3259  Manufacturers of
                                                  paints, coatings,
                                                  adhesives, or inks.
------------------------------------------------------------------------
*North American Industrial Classification System.

    This table is not intended to be exhaustive, but rather provides a 
guide for readers likely to be interested in the revisions to the rule 
affected by this action. To determine whether your facility, company, 
business, organization, etc., is regulated by this action, you should 
carefully examine all of the applicability criteria in 40 CFR 63.7985 
of the rule, as well as in today's amendment to the definitions 
sections. If you have questions regarding the applicability of the 
amendments to a particular entity, consult the person listed in the 
preceding FOR FURTHER INFORMATION CONTACT section.
    Worldwide Web (WWW). In addition to being available in the docket, 
an electronic copy of the final rule amendments will also be available 
on the WWW through EPA's Technology Transfer Network (TTN). Following 
signature by the EPA Administrator, a copy of the final rule amendments 
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.
    Judicial Review. Under section 307(b)(1) of the Clean Air Act 
(CAA), judicial review of the final rule amendments is available only 
by filing a petition for review in the U.S. Court of Appeals for the 
District of Columbia by February 21, 2006. Under section 307(d)(7)(B) 
of the CAA, only an objection to the final rule amendments that was 
raised with reasonable specificity during the period for public comment 
can be raised during judicial review. Moreover, under section 307(b)(2) 
of the CAA, the requirements established by the final rule amendments 
may not be challenged separately in any civil or criminal proceedings 
brought by EPA to enforce these requirements.
    Outline. The information presented in this preamble is organized as 
follows:

I. Background
II. Response to Comments
III. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination with 
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children for 
Environmental Health and Safety Risks
    H. Executive Order 13211: Actions That Significantly Affect 
Energy Supply, Distribution, or Use
    I. National Technology Transfer and Advancement Act
    J. Congressional Review Act

I. Background

    On December 11, 2003, we issued the NESHAP for miscellaneous 
coating manufacturing (40 CFR part 63, subpart HHHHH). Subpart HHHHH 
applies to equipment and processes involved in the manufacturing of 
coatings, such as paints, inks, and adhesives.
    On May 13, 2005, we issued direct final rule amendments (70 FR 
25676) and a parallel proposal (70 FR 25864) to amend subpart HHHHH. We 
stated in the direct final rule that if we received adverse comment by 
June 13, 2005, we would publish a timely withdrawal in the Federal 
Register.
    We subsequently received adverse comments from two commenters on 
one provision and, accordingly, withdrew paragraph (b)(4) in 40 CFR 
63.8055 (70 FR 38780). The remaining provisions, for which we did not 
receive any adverse comments, became effective on July 12, 2005. After 
consideration of the comments, we are promulgating the final rule 
amendments based on the parallel proposal published on May 13, 2005.

[[Page 75925]]

II. Response to Comments

    The direct final rule amendments published on May 13, 2005, 
included amendments that allow formulation data to be used as an 
alternative to test data for demonstrating compliance with the 5 weight 
percent HAP limit in '63.8055 of 40 CFR part 63, subpart HHHHH. The 
intent was to make the compliance options for the miscellaneous coating 
manufacturing NESHAP consistent with options for other surface coating 
rules. For example, 40 CFR part 63, subpart MMMM, the NESHAP for 
surface coating of miscellaneous metal parts and products, has a 
compliant materials option that requires the owner or operator of the 
surface coating operation to determine the mass fraction of organic HAP 
for each coating. One method of determining this mass fraction is to 
use formulation data from the supplier or manufacturer. However, unlike 
the option in the other surface coating rules, the formulation data 
option in the direct final rule amendments to subpart HHHHH did not 
have mass cutoffs of 0.1 percent for carcinogens as defined by 
Occupational Safety and Health Administration (OSHA) or 1 percent for 
other HAP because subpart HHHHH does not establish cutoffs for trace 
materials or impurities.
    The commenters objected to this direct final rule amendments and 
pointed out that the amendments did not allow for mass cutoffs reported 
in Material Safety Data Sheets (MSDS), which require reporting of 
quantities of materials based on limits of 0.1 percent for carcinogens 
and 1 percent for other HAP; and/or other technical reports supplied by 
the coating manufacturers that use these reporting quantities. These 
limits account for trace constituents and impurities in materials. 
These reporting limits are used when raw material and product 
formulations are supplied to paint and coating manufacturers and, in 
turn, supplied to their customers. One of the commenters also pointed 
out that to disallow the use of these de minimis reporting levels 
effectively renders the option useless because raw material data and 
manufacturer formulations are not reported below these limits. Further, 
without this allowance, the miscellaneous coating manufacturing NESHAP 
would create an inherent inconsistency between manufacturer=s 
certifications under the surface coatings NESHAP (recordkeeping and 
reporting for downstream users) and potential certification 
(recordkeeping and reporting) for this option under the miscellaneous 
coating manufacturing NESHAP.
    We appreciate the commenter's request to minimize the compliance 
burden and allow exemptions for impurities and trace constituents. We 
agree that the proposed rule amendment allowing formulation data should 
be a practical option that reduces the compliance burden on both the 
regulated industry and the permitting authorities.
    We do not agree with the commenter regarding consistency between 
compliance with other surface coating NESHAP and the miscellaneous 
coating manufacturing NESHAP. The formats of the standards in other 
surface coating rules are different than the format of the standard in 
the coating manufacturing rule. Although we considered formulation data 
in development of the standards for the other surface coating NESHAP, 
for coating manufacturing, we only considered emissions reduction 
techniques in development of standards. The 5 percent HAP limit in the 
miscellaneous coating manufacturing NESHAP was intended as a pollution 
prevention option that provides a level of control more stringent than 
the emissions standards. Nevertheless, we have considered lessons 
learned in the development of surface coating rules and, in that light, 
we tried to be consistent. In the other surface coating rules, we have 
not required raw material providers to perform complete analyses of 
their products to quantify impurities or trace constituents, nor have 
we considered any requirements that might force raw material providers 
to change their raw material specifications. We understand that use of 
MSDS sheets as formulation data would mean that a HAP, such as toluene 
at 0.5 percent of the material by mass, may be present in the raw 
material yet not be considered in the 5 percent HAP limit compliance 
demonstration. However, because a limited number of trace HAP are used 
in coating manufacturing and trace compounds in raw materials will only 
become more dilute in the final coating, we believe formulation data 
with the MSDS de minimis limits for trace compounds are adequate to 
conform with the intended pollution prevention alternative and 
demonstrate compliance with the 5 percent HAP limit.
    We do not agree, however, that the MSDS information for a coating 
product provided by the coating manufacturer is a legitimate basis for 
determining compliance with the 5 percent HAP limit. A manufacturer can 
estimate the HAP content of the coating by formulation data from the 
raw material supplier.
    Therefore, we are promulgating a final rule amendment that allows 
compliance with the 5 percent HAP limit using formulation data from 
suppliers, if the formulation data represent each organic HAP that is 
present at 0.1 percent by mass or more for OSHA-defined carcinogens, 
and at 1.0 percent by mass or more for other HAP. Only formulation data 
from raw material suppliers shall be used to demonstrate compliance 
with the 5 percent HAP limit.

III. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), the 
Agency must determine whether the regulatory action is ``significant'' 
and, therefore, subject to Office of Management and Budget (OMB) review 
and the requirements of the Executive Order. The Executive Order 
defines ``significant regulatory action'' as one that is likely to 
result in a rule that may:
    (1) Have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities;
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.
    It has been determined that the final rule amendments are not a 
``significant regulatory action'' under the terms of Executive Order 
12866 and are, therefore, not subject to OMB review.

B. Paperwork Reduction Act

    This action does not impose any new information collection burden. 
This action gives a source owner or operator the option of using vapor 
balancing to comply with the standards. Since it is only an option, 
this action will not increase the information collection burden. The 
OMB has previously approved the information collection requirements 
contained in the existing regulations under the provisions of the 
Paperwork Reduction Act, 44 U.S.C. 3501 et seq., and has assigned OMB 
control number 2060-0535 (EPA ICR No. 2115.01).

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    Copies of the information collection request (ICR) document(s) may 
be obtained from Susan Auby, by mail at the Office of Environmental 
Information, Collection Strategies Division; U.S. EPA (2822T); 1200 
Pennsylvania Ave., NW., Washington, DC 20460, by e-mail at 
auby.susan@epa.gov, or by calling (202) 566-1672. A copy may also be 

downloaded off the Internet at http://www.epa.gov/icr. Include the ICR 

or OMB number in any correspondence.
    Burden means the total time, effort, or financial resources 
expended by persons to generate, maintain, retain, or disclose or 
provide information to or for a Federal Agency. This includes the time 
needed to review instructions; develop, acquire, install, and utilize 
technology and systems for the purposes of collecting, validating, and 
verifying information, processing and maintaining information, and 
disclosing and providing information; adjust the existing ways to 
comply with any previously applicable instructions and requirements; 
train personnel to be able to respond to a collection of information; 
search data sources; complete and review the collection of information; 
and transmit or otherwise disclose the information.
    An agency may not conduct or sponsor, and a person is not required 
to respond to a collection of information unless it displays a 
currently valid OMB control number. The OMB control numbers for EPA's 
regulations are listed in 40 CFR part 9 and 48 CFR chapter 15.

C. Regulatory Flexibility Act

    The EPA has determined that it is not necessary to prepare a 
regulatory flexibility analysis in connection with the direct final 
rule amendments.
    For purposes of assessing the impacts of today's direct final rule 
amendments on small entities, a small entity is defined as: (1) A small 
business in the North American Industrial Classification System (NAICS) 
code 325 that has up to 500; (2) a small governmental jurisdiction that 
is a government of a city, county, town, school district or special 
district with a population of less than 50,000; and (3) a small 
organization that is any not-for-profit enterprise which is 
independently owned and operated and is not dominant in its field.
    After considering the economic impacts of today's amendments on 
small entities, EPA has concluded that this action will not have a 
significant economic impact on a substantial number of small entities. 
In determining whether a rule has a significant economic impact on a 
substantial number of small entities, the impact of concern is any 
significant adverse economic impact on small entities, since the 
primary purpose of the regulatory flexibility analyses is to identify 
and address regulatory alternatives ``which minimize any significant 
economic impact of the proposed rule on small entities.'' 5 U.S.C. 603 
and 604. Thus, an agency may conclude that a rule will not have a 
significant economic impact on a substantial number of small entities 
if the rule relieves regulatory burden, or otherwise has a positive 
economic effect on all of the small entities subject to the rule. The 
final rule amendments will not impose any requirements on small 
entities. The final rule amendments add a compliance option granting 
greater flexibility to small entities subject to the final rule that 
may result in a more efficient use of resources for them and, 
therefore, impose no additional regulatory costs or requirements on 
owners or operators of affected sources.

D. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for Federal Agencies to assess the 
effects of their regulatory actions on State, local, and tribal 
governments and the private sector. Under section 202 of the UMRA, the 
EPA generally must prepare a written statement, including a cost-
benefit analysis, for proposed and final rules with ``Federal 
mandates'' that may result in expenditures by State, local, and tribal 
governments, in the aggregate, or by the private sector, of $100 
million or more in any 1 year. Before promulgating an EPA rule for 
which a written statement is needed, section 205 of the UMRA generally 
requires the EPA to identify and consider a reasonable number of 
regulatory alternatives and adopt the least-costly, most cost-
effective, or least burdensome alternative that achieves the objectives 
of the rule. The provisions of section 205 do not apply when they are 
inconsistent with applicable law. Moreover, section 205 allows the EPA 
to adopt an alternative other than the least-costly, most cost 
effective, or least-burdensome alternative if the Administrator 
publishes with the final rule an explanation why that alternative was 
not adopted. Before the EPA establishes any regulatory requirements 
that may significantly or uniquely affect small governments, including 
tribal governments, it must have developed under section 203 of the 
UMRA a small government agency plan. The plan must provide for 
notifying potentially affected small governments to have meaningful and 
timely input in the development of EPA regulatory proposals with 
significant Federal intergovernmental mandates, and informing, 
educating, and advising small governments on compliance with the 
regulatory requirements.
    The EPA has determined that the final rule amendments do not 
contain a Federal mandate that may result in expenditures of $100 
million or more for State, local, and tribal governments, in the 
aggregate, or the private sector in any 1 year. Therefore, the final 
rule amendments are not subject to the requirements of sections 202 and 
205 of the UMRA. In addition, the final rule amendments do not 
significantly or uniquely affect small governments. The final rule 
amendments provide a source owner or operator with additional options 
to comply with the standards and contain no requirements that apply to 
small governments. Therefore, the final rule amendments are not subject 
to section 203 of the UMRA.

E. Executive Order 13132: Federalism

    Executive Order 13132 (64 FR 43255, August 10, 1999) requires the 
EPA to develop an accountable process to ensure ``meaningful and timely 
input by State and local officials in the development of regulatory 
policies that have federalism implications.'' ``Policies that have 
federalism implications'' is defined in the Executive Order to include 
regulations that 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.''
    The final rule amendments do not have federalism implications. They 
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. The final rule 
amendments provide a source owner or operator with another option to 
comply with the standards and, therefore, impose no additional burden 
on sources. Thus, Executive Order 13132 does not apply to the final 
rule amendments.

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

    Executive Order 13175 (65 FR 67249, November 9, 2000) requires the 
EPA to develop an accountable process to ensure ``meaningful and timely 
input by tribal officials in the development of

[[Page 75927]]

regulatory policies that have tribal implications.'' The final rule 
amendments do not have tribal implications, as specified in Executive 
Order 13175. The final rule amendments provide a source owner or 
operator with another option to comply with the standards and, 
therefore, impose no additional burden on sources. Thus, Executive 
Order 13175 does not apply to the final rule amendments.

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

    Executive Order 13045 (62 FR 19885, April 23, 1997) applies to any 
rule that: (1) Is determined to be ``economically significant''; as 
defined under Executive Order 12866, and (2) concerns an environmental 
health or safety risk that the EPA has reason to believe may have a 
disproportionate effect on children. If the regulatory action meets 
both criteria, the EPA must evaluate the environmental health or safety 
effects of the planned rule on children, and explain why the planned 
regulation is preferable to other potentially effective and reasonably 
feasible alternatives considered by the EPA.
    The EPA interprets Executive Order 13045 as applying only to those 
regulatory actions that are based on health or safety risks, such that 
the analysis required under section 5-501 of the Executive Order has 
the potential to influence the regulation. Today=s final rule 
amendments are not subject to Executive Order 13045 because they are 
based on technology performance, not health or safety risks. 
Furthermore, the final rule amendments have been determined not to be 
``economically significant'' as defined under Executive Order 12866.

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

    The final rule amendments are not subject to Executive Order 13211 
(66 FR 28355, May 22, 2001) because they are not a significant 
regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act

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

J. 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. The EPA will submit a report containing the final rule 
and other required information to the U.S. Senate, the U.S. House of 
Representatives and the Comptroller General of the United States prior 
to publication of the direct final rule in the Federal Register. The 
final rule amendments are not a ``major rule'' as defined by 5 U.S.C. 
804(2). The final rule amendments are effective on December 21, 2005.

List of Subjects in 40 CFR Part 63

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

    Dated: December 15, 2005.
Stephen L. Johnson,
Administrator.


0
For the reasons stated in the preamble, title 40, chapter I, part 63 of 
the Code of the 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 HHHHH--[Amended]

0
2. Section 63.8055 is amended by adding paragraph (b)(4) to read as 
follows:


Sec.  63.8055  How do I comply with a weight percent HAP limit in 
coating products?

* * * * *
    (b) * * *
    (4) You may rely on formulation data from raw material suppliers if 
it represents each organic HAP that is present at 0.1 percent by mass 
or more for OSHA-defined carcinogens, as specified in 29 CFR 
1910.1200(d)(4), and at 1.0 percent by mass or more for other 
compounds. If the HAP weight percent estimated based on formulation 
data conflicts with the results of a test conducted according to 
paragraphs (b)(1) through (3) of this section, then there is a rebuttal 
presumption that the test results are accurate unless, after 
consultation, you demonstrate to the satisfaction of the permitting 
authority that the test results are not accurate and that the 
formulation data are more appropriate.

[FR Doc. 05-24300 Filed 12-20-05; 8:45 am]

BILLING CODE 6560-50-P
