

[Federal Register: December 19, 2005 (Volume 70, Number 242)]
[Rules and Regulations]               
[Page 75319-75346]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr19de05-23]                         


[[Page 75319]]

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Part III





Environmental Protection Agency





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40 CFR Parts 63, 70, and 71



Exemption of Certain Area Sources From Title V Operating Permit 
Programs; Final Rule


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 63, 70, and 71

[OAR-2004-0010; FRL-8008-5]
RIN 2060-AM31

 
Exemption of Certain Area Sources From Title V Operating Permit 
Programs

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The EPA is finalizing permanent exemptions from the title V 
operating permit program for five categories of nonmajor (area) sources 
that are subject to national emission standards for hazardous air 
pollutants (NESHAP). The EPA is making a finding for these categories, 
consistent with the Clean Air Act requirement for making such 
exemptions, that compliance with title V permitting requirements is 
impracticable, infeasible, or unnecessarily burdensome on the source 
categories. The five source categories are dry cleaners, halogenated 
solvent degreasers, chrome electroplaters, ethylene oxide (EO) 
sterilizers and secondary aluminum smelters. The EPA declines to make a 
finding for a sixth category, area sources subject to the NESHAP for 
secondary lead smelters. A previous deferral from permitting for this 
category expired on December 9, 2004, subjecting all such sources to 
the title V program.

DATES: This final rule is effective on December 19, 2005.

ADDRESSES: Docket. Docket No. OAR-2004-0010, containing supporting 
information used to develop the proposed and final rules, is available 
for public inspection and copying between 8 a.m. and 4:30 p.m., Monday 
through Friday (except government holidays) at the Air and Radiation 
Docket (Air Docket) in the EPA Docket Center, (EPA/DC) EPA West 
Building, Room B102, 1301 Constitution Avenue, NW., Washington, DC 
20004.

FOR FURTHER INFORMATION CONTACT: Mr. Jeff Herring, U.S. EPA, 
Information Transfer and Program Implementation Division, C304-04, 
Research Triangle Park, North Carolina 27711, telephone number (919) 
541-3195, facsimile number (919) 541-5509, or electronic mail at 
herring.jeff@epa.gov.


SUPPLEMENTARY INFORMATION:

I. General Information

A. Does This Action Apply to Me?

    The entities affected by this rulemaking are area sources subject 
to a NESHAP promulgated under section 112 of the Clean Air Act (Act) 
since 1990, listed in the table below. An ``area source'' under the 
NESHAP regulations is a source that is not a ``major source'' of 
hazardous air pollutants (HAP). A ``major source'' under the NESHAP 
regulations is ``any stationary source or group of stationary sources 
located within a contiguous area and under common control that emits or 
has the potential to emit considering controls, in the aggregate, 10 
tons per year or more of any [HAP] or 25 tons per year or more of any 
combination of [HAP] * * *'' See definitions of ``area source'' and 
``major source'' at 40 CFR 63.2.
    This final rule affects only whether area sources regulated by 
certain NESHAP are required to obtain a title V operating permit and 
whether title V permits may be issued to these and other area sources 
once EPA has promulgated exemptions from title V for them. It has no 
other effect on any requirements of the NESHAP regulations, nor on the 
requirements of State or Federal title V operating permit programs.
    The affected categories are:

------------------------------------------------------------------------
                                                             Estimated
             Category                      NESHAP            number of
                                                            sources \1\
------------------------------------------------------------------------
Perchloroethylene dry cleaning....  Part 63, Subpart M..      \2\ 28,000
Hard and decorative chromium        Part 63, Subpart N..           5,000
 electroplating and chromium
 anodizing.
Commercial ethylene oxide           Part 63, Subpart O..             100
 sterilization.
Halogenated solvent cleaning......  Part 63, Subpart T..           3,800
Secondary aluminum production.....  Part 63, Subpart RRR           1,316
Secondary lead smelting...........  Part 63, Subpart X..               3
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B. How Can I Get Copies of This Document and Other Related Information?

    1. Docket. The EPA has established an official public docket for 
this action under Docket ID No. OAR-2004-0010. The official public 
docket consists of the documents specifically referenced in this 
action, any public comments received, and other information related to 
this action. Although a part of the official docket, the public docket 
does not include confidential business information (CBI) or other 
information whose disclosure is restricted by statute. Documents in the 
official public docket are listed in the index list in EPA's electronic 
public docket and comment system, EDOCKET. Documents are available both 
electronically and in hard copy. Electronic documents may be obtained 
through EDOCKET. Hard copy documents may be viewed at the Air Docket in 
the EPA Docket Center, (EPA/DC) EPA West Building, Room B102, 1301 
Constitution Ave., NW., Washington, DC 20004. This docket facility 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. A reasonable fee may be charged for copying docket materials.
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    \1\ This estimated number includes both major and area sources, 
even though only area sources will be affected by this rulemaking. 
Almost all dry cleaners are area sources. Also, EPA believes less 
than half of EO sterilizers are area sources (see docket item 106). 
For other categories listed here, EPA does not have information on 
the number of area sources.
    \2\ The proposal of March 25, 2005 estimated up to 30,000 dry 
cleaners would be affected by this rulemaking. Based on new 
information available to EPA, we now believe up to 28,000 dry 
cleaners are potentially affected by this rulemaking.
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    2. Electronic Access. You may access this Federal Register document 
electronically through the EPA Internet under the ``Federal Register'' 
listings at http://www.epa.gov/fedrgstr/ or the federal-wide eRulemaking site at http://www.regulations.gov.

    An electronic version of a portion of the public docket is 
available through EDOCKET at http://www.epa.gov/edocket/. To view 

public comments, review the index listing of the contents of the 
official public docket, and access those documents in the public docket 
that are available electronically. Publicly available docket materials 
that are not available electronically may be

[[Page 75321]]

viewed at the docket facility identified above. Once in the system, 
select ``search,'' then key in the appropriate docket identification 
number.

C. Where Can I Obtain Additional Information?

    In addition to being available in the docket, an electronic copy of 
today's notice is also available on the World Wide Web through the 
Technology Transfer Network (TTN). Following signature by the EPA 
Administrator, a copy of today's 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. If more 
information regarding the TTN is needed, call the TTN HELP line at 
(919) 541-5384.

D. How Is This Preamble Organized?

    The information presented in this preamble is organized as follows:

I. General Information
    A. Does This Action Apply to Me?
    B. How Can I Get Copies of This Document and Other Related 
Information?
    1. Docket
    2. Electronic Access
    C. Where Can I Obtain Additional Information?
    D. How Is This Preamble Organized?
II. Background
III. What Does Today's Action Involve?
    A. What Revisions Are Being Made to Part 63?
    B. What Revisions Are Being Made to Parts 70 and 71?
IV. What Are the Reasons for Title V Exemptions?
    A. General Approach
    B. Dry Cleaners
    C. Chrome Electroplaters
    D. Solvent Degreasers
    E. EO Sterilizers
    F. Secondary Aluminum
V. What Is EPA's Decision for Secondary Lead Smelters?
VI. May Title V Permits Be Issued To Exempt Area Sources?
VII. May General Permits Be Issued as an Alternative to Title V 
Exemptions?
VIII. What Are EPA's Responses to Significant Comments?
    A. Is EPA's General Approach to Exemptions Consistent With the 
Act?
    B. Does the First Factor Acknowledge Key Title V Requirements?
    C. Does This Rulemaking Adequately Address Title V Costs?
    D. What Is our Analysis of Factor Four for the Final Rule?
    E. Are These Exemptions Consistent With the Legislative History 
of the Act?
    F. Is It Reasonable for EPA to Rely on the Information Cited in 
Support of the Proposal?
    G. Are Permits Necessary To Define Monitoring for Chrome 
Electroplaters?
    H. May Degreasers Be Exempted When There Are Multiple Applicable 
Requirements?
    I. Are the Compliance Requirements of the EO Sterilizer and 
Secondary Aluminum NESHAP Substantially Equivalent to Title V?
    J. Are the Proposed Revisions to EO Sterilizer NESHAP 
Appropriate?
    K. Are Title V Permits Allowed for Area Sources Exempted From 
Title V?
    L. Does This Rulemaking Disregard Cost Estimates for General 
Permits?
IX. Effective Date of Today's Final Rule Under the Administrative 
Procedure Act
X. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act (RFA), as Amended by the Small 
Business Regulatory Enforcement Fairness Act of 1996 ( SBREFA), 5 
U.S.C. 601 et seq.
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination With 
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children From 
Environmental Health and Safety Risks
    H. Executive Order 13211: Actions Covering Regulations That 
Significantly Affect Energy Supply, Distribution, or Use
    I. National Technology Transfer Advancement Act
    J. Congressional Review Act

II. Background

    Section 502(a) of the Clean Air Act (Act) sets forth the sources 
required to obtain operating permits under title V. These sources 
include: (1) Any affected source subject to the acid deposition 
provisions of title IV of the Act; (2) any major source; (3) any source 
required to have a permit under Part C or D of title I of the Act; (4) 
``any other source (including an area source) subject to standards or 
regulations under section 111 [new source performance standards] or 112 
[NESHAP)]'' and (5) any other stationary source in a category 
designated by regulations promulgated by the Administrator. See 40 CFR 
70.3(a) and 71.3(a). The requirements of section 502(a) are primarily 
implemented through the operating permit program rules: Part 70, which 
sets out the minimum requirements for title V operating permit programs 
administered by State, local, and tribal permitting authorities (57 FR 
32261, July 21, 1992), and part 71, the federal operating permit 
program requirements that apply where EPA or a delegate agency 
authorized by EPA to carry out a Federal permit program is the title V 
permitting authority (61 FR 34228, July 1, 1996). The area sources 
subject to NSPS under section 111 or NESHAP under section 112 
[addressed in category (4) above] are identified in Sec. Sec.  
70.3(a)(2) and (3) and Sec. Sec.  71.3(a)(2) and (3) as among the 
sources subject to title V permitting requirements.
    Section 502(a) of the Act also provides that ``the Administrator 
may, in the Administrator's discretion and consistent with the 
applicable provisions of [the Clean Air Act], promulgate regulations to 
exempt one or more source categories (in whole or in part) from the 
requirements [of title V] if the Administrator finds that compliance 
with such requirements is impracticable, infeasible, or unnecessarily 
burdensome on such categories, except that the Administrator may not 
exempt any major source from such requirements.''
    In the part 70 final rule of July 21, 1992, EPA permanently 
exempted from title V two categories of area sources that are subject 
to section 111 and 112 standards established prior to the part 70 rule 
(pre-1992 standards): New residential wood heaters subject to subpart 
AAA of part 60 (NSPS), and asbestos demolition and renovation 
operations subject to subpart M of part 61 (NESHAP). See Sec. Sec.  
70.3(b)(4) and 71.3(b)(4). The EPA also allowed permitting authorities 
under part 70 the option to defer permitting for other area sources 
subject to pre-1992 standards, while for part 71 purposes, we simply 
deferred issuing permits to them. See 57 FR 32261-32263 (July 21, 
1992), and Sec. Sec.  70.3(b)(1) and 71.3(b)(1).
    The post-1992 standards, including the NESHAP for area sources that 
are the subject of today's final rule, previously have been addressed 
in Sec. Sec.  70.3(b)(2) and 71.3(b)(2), which state that EPA will 
determine whether to exempt from title V permitting any or all area 
sources subject to post-1992 NSPS or NESHAP at the time each new 
standard is promulgated. Subsequently, EPA issued title V exemptions 
for several area sources subject to NESHAP in final rules under part 
63:
     All area sources within the NESHAP for publicly owned 
treatment works (POTW), Subpart VVV. See Sec.  63.1592 (63 FR 64742, 
October 21, 2002).
     Those area sources conducting cold batch cleaning within 
the NESHAP for halogenated solvent cleaning, Subpart T. See Sec.  
63.468(j) (59 FR 61802, December 2, 1994).
     Three types of area sources within the NESHAP for hard and 
decorative chromium electroplating and chromium anodizing tanks, 
Subpart T. See Sec.  63.340(e)(1) (61 FR 27785, June 3, 1996).

[[Page 75322]]

    The EPA has issued three post-1992 NESHAP that defer the 
requirement for area sources to obtain title V permits:
     Area sources subject to the NESHAP for perchloroethylene 
dry cleaning, subpart M; chromium electroplating and anodizing, subpart 
N; commercial ethylene oxide sterilization, subpart O; and secondary 
lead smelting, subpart X. See 61 FR 27785, June 3, 1996;
     Area sources subject to the NESHAP for halogenated solvent 
cleaning, subpart T. See 59 FR 61801, December 2, 1994, as amended by 
60 FR 29484, June 5, 1995; and
     Area sources subject to the NESHAP for secondary aluminum 
production, subpart RRR. See 65 FR 15690, March 23, 2000.

The first two rules established deferrals of area source permitting, 
which expired on December 9, 1999. The expiration date for these 
deferrals was extended to December 9, 2004 in another final rule (64 FR 
69637, December 14, 1999). The third rule provided deferrals for 
secondary aluminum area sources, which also expired on December 9, 
2004. Thus, today's final rule addresses all six categories of area 
sources subject to a post-1992 NESHAP that were subject to deferrals 
from permitting that expired on December 9, 2004.
    The EPA published a notice of proposed rulemaking on March 25, 2005 
(70 FR 15250), where we proposed to exempt from title V five categories 
of area sources subject to NESHAP: Dry cleaners, halogenated solvent 
degreasers, chrome electroplaters, ethylene oxide (EO) sterilizers and 
secondary aluminum smelters. As support for the proposed exemptions, we 
discussed why compliance with title V appeared to be impracticable, 
infeasible, or unnecessarily burdensome on the area sources, consistent 
with the exemption criteria of section 502(a) of the Act. Also, we 
discussed a sixth category, area sources subject to the NESHAP for 
secondary lead smelters, but we did not propose to exempt them.
    Today's final rule is unchanged from the proposal, except for a 
revision to Sec.  63.360(f), which sets forth the title V exemption for 
area sources subject to the NESHAP for EO sterilizers. The change to 
the EO sterilizer rule is needed to clarify which sources under the 
NESHAP are subject to today's title V exemptions, and it is discussed 
further in section VIII.J of this preamble.

III. What Does Today's Action Involve?

A. What Revisions Are Being Made to Part 63?

    Today's final rule exempts five categories of area sources from 
title V by revising certain language in the NESHAP rules under part 63, 
as we proposed on March 25, 2005 (70 FR 15250). This is achieved 
through two types of changes to the NESHAP rules.
    First, we have revised each of the five NESHAP to say that area 
sources subject to the NESHAP are exempt from the obligation to obtain 
permits under parts 70 or 71, unless the source would be required to 
obtain these permits for another reason, as defined in the part 70 or 
71 rules, such as when the source triggers another applicability 
provision of Sec. Sec.  70.3(a) or 71.3(a). For example, if an exempt 
area source increases its HAP emissions such that it becomes a major 
source, the former area source will be required to get a title V permit 
because it is a major source, consistent with Sec. Sec.  70.3(a)(1) and 
71.3(a)(1). Consequently, when a former area source becomes a major 
source, the major source permit must include all NESHAP requirements 
that apply to the major source, including the requirements of the 
NESHAP that formerly provided for the title V exemption.\3\ This is so 
because Sec. Sec.  70.3(c)(1) and 71.3(c)(1) require permits for major 
source to include ``all applicable requirements for all relevant 
emissions units in the major source.'' Also, we added a second sentence 
to each NESHAP to say ``notwithstanding the previous sentence,'' the 
source ``must continue to comply with the provisions of this subpart 
applicable to area sources.'' The purpose of this sentence is to 
explain that area sources that are exempted from title V are not 
exempted from any emission limitations, standards, or any other 
requirements of the NESHAP.
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    \3\ Note that when an area source becomes a major source, 
depending on the specific requirements of the NESHAP, the emissions 
standards may change from generally achievable control technology 
(GACT), which may be established for area sources, to maximum 
achievable control technology (MACT), which is required for major 
sources, but also may be established for area sources. Also, see 
Sec.  63.1(c)(5).
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    Second, we have revised the table in each NESHAP that shows how the 
general provisions of subpart A of part 63 apply to that particular 
NESHAP, except for the dry cleaning NESHAP, which has no such table. 
For sources other than dry cleaners, the ``comment'' column for the 
Sec.  63.1(c)(2) entry in the tables simply states that area sources 
subject to the subpart are exempt from title V permitting obligations.
    We have made one change to the rule language of the proposal. In 
the final rule, we have revised the regulatory language of Sec.  
63.360(f), which sets forth the title V exemption for EO sterilizers. 
For more discussion of the proposed regulatory language and why we are 
changing it in the final rule, see section VIII.J below.
    Also, we are not making any changes to the NESHAP for secondary 
lead smelters, consistent with our proposal, because we are not 
establishing a title V exemption for area sources subject to it. See 
section V below for a more detailed explanation of our decision 
regarding lead smelters.

B. What Revisions Are Being Made to Parts 70 and 71?

    Today's final rule also revises parts 70 and 71, as we proposed, to 
make the rules more consistent with our interpretation that State and 
local agencies, tribes, and EPA (permitting authorities) may not issue 
title V permits to area sources after we promulgate title V exemptions 
for them. In the proposal, we explained that section 502(a) of the Act 
provides that only those area sources required to get permits, and not 
exempted by EPA through notice and comment rulemaking, are properly 
subject to title V requirements. Also, we explained that section 506(a) 
of the Act, which provides that permitting authorities ``may establish 
additional permitting requirements not inconsistent with this Act,'' 
does not override the more specific language of section 502(a). We also 
explained that section 506(a) preserves the ability for permitting 
authorities to establish additional permitting requirements, such as 
procedural requirements, for sources properly covered by the program, 
and that section 116 of the Act allows State and other non-federal 
permitting agencies (State agencies) to issue non-title V permits to 
area sources that have been exempted from title V. See section VI below 
for further discussion of our interpretations of the Act in this 
regard.
    First, we proposed to delete the ``at least'' language of Sec.  
70.3(a) that has been interpreted to allow State agencies to require 
permits from area sources, once we have exempted the area sources from 
title V, because this language is inconsistent with section 502(a) of 
the Act. No similar changes are necessary for part 71. Second, we 
proposed to delete language in Sec.  70.3(b)(3) and Sec.  71.3(b)(3) 
that allows exempt sources to ``opt to apply for a permit under a part 
70 program,'' as it is inconsistent with section 502(a) to let exempted 
area sources volunteer for a title V permit.

[[Page 75323]]

Third, we proposed to delete the prefatory phrase of Sec.  70.3(b)(4), 
``Unless otherwise required by the state to obtain a part 70 permit,'' 
because it suggests that States agencies may require title V permits 
for exempted area sources, such as for residential wood heaters and 
asbestos demolition and renovation, which would be inconsistent with 
section 502(a) of the Act. Today's rule makes these revisions final, 
unchanged from the proposal.

IV. What Are the Reasons for the Title V Exemptions?

A. General Approach

    In the proposal of March 25, 2005 (70 FR 15250), we explained our 
general approach to implementing the exemption criteria of section 
502(a) of the Act. Section 502(a) of the Act provides, in part, that 
the Administrator may ``promulgate regulations to exempt one or more 
source categories (in whole or in part) from the requirements of this 
subsection if the Administrator finds that compliance with such 
requirements is impracticable, infeasible, or unnecessarily burdensome 
on such categories, except that the Administrator may not exempt any 
major source from such requirements.'' In addition, EPA explained that 
the legislative history of Section 502(a) suggests that EPA should not 
grant exemptions where doing so would adversely affect public health, 
welfare, or the environment. See Chafee-Baucus Statement of Senate 
Managers, Environment and Natural Resources Policy Division 1990 CAA 
Leg. Hist. 905, Compiled November, 1993 (in that ``[t]he Act requires 
EPA to protect the public health, welfare and the environment, * * * 
this provision of the permits title prevents EPA from exempting sources 
or source categories from the requirements of the permit program if 
such exemptions would adversely affect public health, welfare, or the 
environment'').
    In developing this rulemaking, EPA sought and relied on information 
from State and local agencies on the level of oversight they perform on 
these area sources. They responded with information on whether they 
issue permits, perform routine inspections, provide compliance 
assistance, and on compliance rates for them. We also received input 
from State small business ombudsmen and several trade associations 
representing dry cleaning, metal finishing, solvent cleaning, and the 
aluminum industry, including information on the sources and the 
compliance assistance programs currently available for them. In 
addition, the proposal provided a 60-day public comment period and 
public citizens, non-profit organizations, State agency 
representatives, and affected industry representatives responded with 
comments, which are included in the docket.
    In the proposal, we discussed on a case-by-case basis the extent to 
which one or more of the four factors supported title V exemptions for 
a given source category, and then we assessed whether considered 
together those factors demonstrated that compliance with title V 
requirements would be ``unnecessarily burdensome'' on the category, 
consistent with section 502(a) of the Act. See 70 FR 15253, March 25, 
2005.
    One commenter said we should have evaluated and discussed all four 
factors for each category of area sources, suggesting that we ignored 
factors that did not support title V exemptions for each category of 
area sources. In response, we have considered, and discuss in this 
preamble, all four factors for each category of area sources for 
today's final rule. See the explanation below for an overview of our 
analysis of each factor. Also, see section IV.B through F for detailed 
discussion of the four factors for each category of area sources, 
section VIII.A for detailed EPA response to this comment, and section 
VIII.D, which provides detailed EPA response to this comment, and other 
comments, on proposed factor four.
    The first factor discussed in the proposal is whether title V would 
result in significant improvements to the compliance requirements, 
including monitoring, recordkeeping, and reporting, that are already 
required by the NESHAP. This preamble refers to this evaluation as 
probing whether title V is ``unnecessary'' to improve compliance for 
these NESHAP requirements at area sources. Thus, a finding that title V 
does not result in significant improvements to compliance, as compared 
to operating subject to the NESHAP without a title V permit, is 
described as supporting a conclusion that title V permitting is 
``unnecessary'' for area sources in that category, consistent with the 
``unnecessarily burdensome'' criterion of section 502(a) of the Act. 
Title V provides authority to add monitoring requirements in permits in 
appropriate circumstances, and also imposes a number of monitoring, 
recordkeeping and reporting requirements that are designed to enhance 
compliance. We analyze below the extent to which Title V could improve 
compliance for the area sources covered by today's rule.
    Part 70 and 71 set forth, in three principal sections, monitoring 
requirements that may be included in title V permits for area sources. 
Section 70.6(a)(3)(i)(A) requires that title V permits include ``[a]ll 
monitoring and analysis procedures or test methods required under 
applicable monitoring and testing requirements.'' This means, for 
example, that monitoring required by a NESHAP must be included in a 
title V permit issued to a source covered by a NESHAP. Second, Sec.  
70.6(a)(3)(i)(B) goes further, and provides that ``[w]here the 
applicable requirement does not require periodic testing or 
instrumental or noninstrumental monitoring (which may consist of 
recordkeeping designed to serve as monitoring), periodic monitoring 
sufficient to yield reliable data from the relevant time period that 
are representative of the source's compliance with the permit'' may be 
included in a title V permit. Importantly, however, where periodic 
monitoring exists in the underlying requirement, such as a NESHAP, 
permit writers are not authorized by this regulation to add additional 
periodic monitoring in a permit. See Appalachian Power Co. v. EPA, 208 
F.3d 1015, 1028 (D.C. Cir. 2000). Finally, Sec.  70.6(c)(1), provides 
that permits must contain ``consistent with [the periodic monitoring 
rule in Sec.  70.6(a)(3)], compliance certification, testing, 
monitoring, reporting, and recordkeeping requirements sufficient to 
assure compliance with the terms and conditions of the permit.'' \4\
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    \4\ Similar provisions appear in EPA regulations in Part 71 
stipulating monitoring provisions for federally-issued title V 
permits.
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    The EPA's interpretation of Sec.  70.6(c)(1) has evolved over time. 
In November and December 2000, EPA partially granted two petitions for 
objections to State-issued part 70 permits. See In the Matter of 
Pacificorp, Petition No. VIII-00-1 (November 16, 2000); In the Matter 
of Fort James Camas Mill, Petition No. X-19999-1 (December 22, 2000). 
In both decisions, EPA held that Sec.  70.6(c)(1) empowers State 
permitting authorities to review, on a case-by-case basis, the 
sufficiency of each permittee's monitoring requirements, independent of 
the authority provided by the periodic monitoring rule. On September 
17, 2002, EPA published a proposed rule that would have codified this 
interpretation of Sec.  70.6(c)(1). See 67 FR 58561. After considering 
comments, however, EPA issued a final rule (the ``umbrella monitoring 
rule'') providing that Sec.  70.6(c)(1) does not allow permit writers 
to add monitoring requirements beyond those that are authorized by the 
periodic monitoring rule. See 69 FR

[[Page 75324]]

3202, 3204 (January 22, 2004). This rule was the subject of litigation 
in the United States Court of Appeals for the District of Columbia 
Circuit (DC Circuit), and the Court recently vacated and remanded the 
rule on the basis that EPA failed to provide adequate notice in its 
proposal of the option that it adopted in its final rule. See 
Environmental Integrity Project v. EPA, 205 U.S. App. LEXIS 21930 (D.C. 
Cir. 2005).
    In EPA's March 25, 2005 proposal to exempt five categories of area 
sources from title V requirements, EPA explained that ``under the 
umbrella monitoring rule and the periodic monitoring rule, title V 
permits would not typically add any new monitoring requirements for 
post-1992 NESHAP, including the NESHAP addressed in today's proposal.'' 
See 70 FR 15254. The recent decision in Environmental Integrity Project 
vacating the umbrella monitoring rule does not change our view that 
subjecting these area sources to title V will not likely lead to 
monitoring beyond that required by the underlying NESHAP. All of the 
NESHAP were issued after the 1990 amendments to the Act, and were 
therefore designed to meet all of the Act's current monitoring 
requirements. Interested parties that believed those regulations failed 
to provide for sufficient monitoring had an opportunity to comment on 
the proposed NESHAP and to challenge EPA's rulemaking decisions in 
court. Any such opportunity has now passed. Thus, even if Sec.  
70.6(c)(1) is interpreted to allow ``sufficiency'' monitoring 
independent of the authority that exists through the periodic 
monitoring rule, EPA is confident that no such additional monitoring 
would appropriately be added in title V permits issued to the five 
categories of area sources we exempt from title V today.\5\ Therefore, 
the monitoring component of the first factor favors title V exemptions 
for all of the categories of sources for which exemptions are provided 
in this rule, because title V is ``unnecessary'' to provide adequate 
monitoring for them. Also, see EPA response to comment that title V 
permits are needed to define monitoring for electroplaters, in section 
VIII.G.
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    \5\ It has been EPA's consistent position that post-1990 NESHAP 
include all monitoring required under the Act. See, e.g., the 
preamble to EPA's compliance assurance monitoring rule, 64 FR 54940 
(October 22, 1997) and EPA's advance notice of proposed rulemaking 
soliciting comments on Clean Air Act requirements that may include 
inadequate monitoring requirements, 70 FR 7905 (February 16, 2005) 
(specifically not soliciting comment on standards promulgated after 
1990 because they contain adequate monitoring under the Act).
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    As part of the first factor, we have also considered the extent to 
which title V could potentially enhance compliance for area sources 
covered by today's rule through recordkeeping or reporting 
requirements, including requirements for a six-month monitoring report, 
deviation reports, and an annual compliance certification. See 
Sec. Sec.  70.6(a)(3) and 71.6(a)(3), Sec. Sec.  70.6(c)(1) and 
71.6(c)(1), and Sec. Sec.  70.6(c)(5) and 71.6(c)(5). In the proposal, 
we stated that the recordkeeping and reporting requirements of the 
NESHAP for electroplaters, EO sterilizers, and secondary aluminum 
smelters are substantially equivalent to those of title V. After 
considering comments received on the proposal, we continue to believe 
the compliance requirements for these NESHAP are substantially 
equivalent to those of title V. Also, see EPA response to comments on 
issues related to factor one, including section VIII.I, concerning 
comment that the compliance requirements for EO sterilizers and 
secondary aluminum are not substantially equivalent to those of title 
V.
    In the proposal, we did not discuss recordkeeping and reporting in 
the context of factor one for dry cleaners or degreasers, but we do so 
in today's final rule in response to comment. As mentioned above, these 
NESHAP have monitoring requirements consistent with the title V 
monitoring requirements. However, they do not contain reporting 
requirements that are identical to the title V requirements for 
deviation reports, six-month monitoring reports, and annual compliance 
certification. [See Sec. Sec.  70.6(a)(3)(iii) and 71.6(a)(3)(iii).]
    The NESHAP for dry cleaners requires a log to be keep on-site to 
document the dates that weekly leak detection and repair activities are 
conducted, the results of weekly monitoring of temperature and 
perchloroethylene concentrations, and a rolling monthly calculation of 
annual perchlorethylene consumption. It does not require a 6-month 
monitoring report, ``prompt'' deviation reports, or annual compliance 
certification, directly comparable to the compliance requirements of 
Sec.  70.6(a)(3)(iii)(A) and (B), and Sec.  70.6(c)(5).
    The NESHAP for degreasers requires exceedances of monitoring 
parameters to be reported at least semiannually and it requires an 
annual compliance report, which for most sources, is composed of a 
statement that operators have been trained on operation of cleaning 
machines and their control devices and an estimate of solvent 
consumption on an annual basis, but it does not require a 6-month 
monitoring report, ``prompt'' deviation reports, or annual compliance 
certification, directly comparable to the requirements of Sec.  
70.6(a)(3)(iii)(A) and (B), and Sec.  70.6(c)(5).
    Although the reporting requirements of these two NESHAP are not 
directly comparable to those of title V, this does not mean that the 
reporting requirements of these two NESHAP are inadequate to achieve 
compliance on their own. Indeed, in issuing the NESHAP for these 
sources, EPA determined that the recordkeeping and reporting 
requirements contained therein were adequate, and EPA continues to 
believe that this is the case. The EPA acknowledges these additional 
title V reporting measures may provide some marginal compliance 
benefits. However, EPA believes that they would not be significant. 
Because the monitoring required by the two NESHAP is consistent with 
the monitoring requirements of title V, and because each NESHAP has 
adequate recordkeeping and reporting requirements tailored to the 
NESHAP, we conclude that the first factor supports a title V exemption 
for these sources. [See additional explanation for dry cleaners and 
degreasers in sections IV.B and D below.]
    The second factor considered in determining whether title V is 
``unnecessarily burdensome'' for these categories is whether title V 
permitting would impose significant burdens on these area sources and 
whether these burdens would be aggravated by difficulty they may have 
in obtaining assistance from permitting agencies. We used this factor 
to assess whether title V satisfies the ``burdensome'' component of the 
``unnecessarily burdensome'' criterion of section 502(a) of the Act. We 
discussed this factor in the proposal as supporting our exemption 
findings for dry cleaners, chrome electroplaters, solvent degreasers, 
and secondary aluminum smelters, but we did not specifically discuss it 
with respect to EO sterilizers. However, in the proposal, we stated a 
belief that title V burdens and costs would be significant for all five 
categories of area sources, and this statement included EO sterilizers. 
See discussion of the second factor in the proposal, 70 FR 15254.
    To help us assess factor two, we collected information on the 
burdens and costs of title V and economic data for the area sources, 
and we placed this information in the docket prior to our proposal. See 
economic information for the five industry groups (docket item 04), and 
information on burdens and costs of title V in the information

[[Page 75325]]

collection requests (ICRs) for part 70 and 71 (docket items 80 and 81). 
Note that the economic information is for the broad industry group, 
which includes both area sources and major sources under title V. 
However, despite this, certain assumptions about their economic 
characteristics are possible because almost all of them are small 
businesses with limited resources. For example, many dry cleaners are 
small ``mom-and-pop'' retail establishments, which will have greater 
difficulty in meeting regulatory demands than large corporations with 
trained environmental staffs and greater resources. The ICRs for part 
70 and 71 describe title V burdens and costs in the aggregate, they are 
not designed for use in estimating title V burdens and costs for any 
particular sources. The ICRs do not include specific estimates of 
burdens and costs for area sources because area sources were subject to 
title V deferrals at the time the ICRs were approved. However, the ICRs 
describe in detail various activities undertaken at title V sources, 
including activities for major sources with standard permits, and 
certain activities for major sources with general permits, and area 
sources may be issued either standard or general permits, so many of 
the same burdens and costs described in the ICRs will also apply to 
these area sources. See general permit rules, Sec. Sec.  70.6(d) and 
71.6(d). In the proposal, we included a list of source activities 
associated with part 70 and 71 that impose title V burdens and costs, 
whether the source has a standard or general permit, and we described 
how permits for area sources may have a somewhat reduced scope, based 
on Sec. Sec.  70.3(c)(2) and 71.3(c)(2), compared to major source 
permits. Despite the potential for reduction of burdens for area 
sources, we proposed finding that the burdens and costs of title V 
would be significant for these area sources, similar to those for major 
sources. Thus, we proposed finding that V is ``burdensome'' for these 
area sources, consistent with the ``unnecessarily burdensome'' 
criterion of section 502(a) of the Act.
    Our review of comments and further consideration of these issues 
has not led us to a different view for all categories of area sources. 
For EO sterilizers, as in the proposal, EPA has no reliable information 
on the economic resources of area sources but, as described below, 
believes that a number of area sources are small businesses with 
limited economic resources. See section IV.E. Given the lack of 
specific economic information for EO sterilizers, EPA is not making a 
specific finding as to whether factor two supports an exemption for 
this source category. Thus, we find today that factor two supports 
title V exemptions for all categories of area sources, except for EO 
sterilizers, where other factors support the exemption. See 70 FR 
15258-15259 for more on the burdens of general permitting for area 
sources. Also, see sections VII and VIII.K below for more on our 
alternative proposal to require general permits for area sources in 
lieu of exempting them, section VIII.C below for more on title V cost 
estimates for area sources, and section VIII.L below for more on title 
V costs estimates for sources with general permits.
    EPA's general belief, stated in the proposal, that title V burdens 
and costs would be significant for EO sterilizers was not based on any 
particular study or docket support, but instead on a general assessment 
of the types of smaller establishments likely to meet the ``area 
source'' definition of part 63 and conduct EO sterilization activities, 
e.g., small contract sterilization businesses, conducting off-site 
sterilization services for manufacturers of medical equipment and 
supplies, pharmaceuticals, spices, and cosmetics. See docket items 88 
and 106.
    In response to the comment that we should consider all four factors 
in evaluating each category of area sources for exemptions, we note 
that the docket does not contain reliable information on the economic 
resources of area sources in this category, but EPA reaffirms the 
general belief that there are area sources in the EO sterilizer 
category that would be small businesses or other small establishments 
with limited economic resources. Nevertheless, because specific 
information on the economic resources of EO sterilizers is lacking, EPA 
is basing its decision to exempt this category from title V on its 
assessment of the other three factors and additional rationale noted in 
its evaluation of the legislative history of title V. [See section 
IV.D.] Also, see section VIII.A for more detailed EPA response to the 
comment that we should consider all four factors in evaluating each 
category of area sources for exemptions.
    The third factor, which is closely related to the second factor, is 
whether the costs of title V permitting for these area sources would be 
justified, taking into consideration any potential gains in compliance 
likely to occur for such sources. We discussed factor three in the 
proposal as supporting our exemption findings for dry cleaners, but we 
did not discuss it with respect to the other four categories of area 
sources we proposed for title V exemption. See more discussion on 
factor three in the proposal, including a detailed listing of many of 
the mandatory activities imposed by title V for area sources, 70 FR 
15254. As described above in the context of our discussion of factor 
two, we find that costs of title V are significant for all categories 
except for EO sterilizer, where sufficient economic data are lacking 
for such a finding. Nevertheless, the types of enterprises within the 
EO sterilizer category are strongly suggestive that title V would be an 
economic burden for some, if not all, of the area sources. Also, 
through factor one and/or revised factor four for each category of area 
sources in the proposal, both of which examine the ability of title V 
permits to improve compliance over that required by the NESHAP, we 
established that title V is ``unnecessary'' for NESHAP compliance. 
Although there may be some compliance benefits from title V for some 
area sources, we believe they will be small, and not justified by title 
V costs and burdens for them.
    Accordingly, for all categories of area sources we exempt today, we 
conclude that title V costs are not justified considering the potential 
for gains in compliance from title V, and thus, factor three supports 
title V exemptions for all five categories of area sources, consistent 
with section 502(a) of the Act. See economic data for all industry 
groups, docket item 04, and information on title V burdens and costs, 
docket items 80 and 81. See section VIII.A for more detailed EPA 
response to the comment that we should consider all four factors in 
evaluating each category of area sources for exemptions.
    The fourth factor considered in the proposal is whether oversight, 
outreach, and compliance assistance programs by the EPA, or a delegate 
State or local agency, primarily responsible for implementing and 
enforcing the NESHAP, could achieve high compliance with particular 
NESHAP, without relying on title V permitting. We used this factor to 
help examine whether title V is ``unnecessary'' for NESHAP compliance 
for these area sources. See the discussion of factor four in the 
proposal, 70 FR 15254, March 25, 2005. We discussed this factor as 
supporting our exemption findings of the proposal for dry cleaners, 
solvent degreasers and EO sterilizers, but we did not discuss it for 
electroplaters and secondary aluminum.
    To help us assess this factor we collected information from State 
and local air pollution control agencies (State agencies), summarized 
in the ``State survey'' which we placed in the docket for this 
rulemaking (docket item

[[Page 75326]]

02). The State survey shows that many State agencies have compliance 
oversight programs that result in high compliance for the dry cleaners, 
solvent degreasers and EO sterilizers, and that high compliance for 
them does not necessarily depend on title V. This point was repeated by 
State and local agencies who submitted comments on the proposal, all of 
which are in support of the proposed exemptions for the five categories 
of area sources, see docket items, 11, 16, 59, 61, and 65.
    One commenter opined that factor four is inconsistent with 
Congressional intent concerning the ``unnecessarily burdensome'' 
criterion of section 502(a) of the Act, because it examines the future 
possibility that a State might adopt alternatives to title V that are 
sufficient to achieve compliance with the NESHAP, without title V, 
rather than examining whether actual programs are in place to achieve 
compliance with the NESHAP, without title V permits. In response, we 
have revised factor four in the final rule, and we have analyzed all 
five categories of area sources based on the revised factor. Revised 
factor four is whether there are implementation and enforcement 
programs in place that are sufficient to assure compliance with the 
NESHAP for area sources, without relying on title V permits. As further 
described in section VIII.D below, there are implementation and 
enforcement programs in place sufficient to assure compliance with the 
NESHAP for all five categories of area sources addressed in today's 
final rule, in all parts of the nation, without title V permits. These 
programs take several forms, including programs of implementation and 
enforcement conducted by EPA under the statutory authority of sections 
112, 113, and 114, and State delegation of this responsibility under 
section 112(l) of the Act, implemented through subpart E of part 63. 
Second, section 507 of the Act requires a small business assistance 
program (SBAP) for each State and for EPA, and these programs are in 
place, and they may be used to assist area sources subject to NESHAP 
that have been exempted from title V permitting. Third, States and EPA 
often conduct voluntary compliance assistance, outreach, and education 
programs (compliance assistance programs), which are not required by 
statute. The statutory requirements for implementation and enforcement 
of NESHAP in section 112 apply to NESHAP that regulate all sources, 
including area sources. Thus factor four is satisfied for each of these 
categories of area sources by the statutory requirements alone. 
However, additional voluntary programs conducted by State and local 
agencies supplement the mandated programs and enhance the success of 
the programs.
    We used the compliance rate information in the State survey as a 
check on our assumption that the statutory programs for implementation 
and enforcement of NESHAP, together with other efforts by State 
agencies would result in adequate compliance for these sources, without 
relying on title V permits. The State survey lists various State 
oversight programs, without indicating whether they are conducted 
voluntarily or under statutory authority. Also, the compliance rate 
information in the survey suggests that adequate compliance is being 
achieved in practice for all of these categories of area sources (with 
more than half of the agencies that responded reported high compliance 
for each category). [See the State survey, docket item 02.]
    However, for secondary aluminum, fewer State and local agencies 
responded with examples of compliance oversight programs and 
information on compliance rates, compared to other categories. We 
believe these data are explained by the timing of the State survey 
relative to the effective date of the secondary aluminum standard, 
rather than suggesting any deficiencies in State implementation and 
enforcement for the NESHAP. The earliest date that compliance with the 
secondary aluminum NESHAP was required for sources was about the same 
time as the data collection phase of the State survey, and thus, State 
and local agencies did not have much experience with compliance 
oversight for them, or much compliance data upon which to base their 
survey responses for secondary aluminum. The secondary aluminum NESHAP 
did not require sources to be in compliance until March 24, 2003 (all 
other NESHAP were effective much earlier than this), while the majority 
of State and local input for the State survey occurred from March to 
June of 2003. [See the final rule for secondary aluminum, 65 FR 15690, 
March 23, 2000, docket item 77, and documentation of the data 
collection phase of the State survey, docket items 93 and 94.] We 
believe that State agencies are implementing this NESHAP in the same 
manner as others and, based on that belief, the statutory program, and 
the information in the State survey, we conclude that factor four 
supports title V exemptions for area sources subject to the secondary 
aluminum NESHAP.
    The analysis of factor four we performed for the final rule 
continues to support title V exemptions for dry cleaners, degreasers, 
and EO sterilizers, as we proposed, and it additionally supports 
exemptions for electroplaters and secondary aluminum smelters. Thus, 
for the final rule, factor four helps to demonstrate that title V is 
``unnecessary'' for NESHAP compliance, consistent with the 
``unnecessarily burdensome'' criterion of section 502(a) for all area 
sources we exempt today. Also, see section VIII.A for more detailed EPA 
response to the comment that we should consider all four factors in 
evaluating each category of area sources for exemptions, and section 
VIII.D for additional EPA responses to comments on proposed factor 
four.
    In the proposal, we stated our belief that exempting these five 
categories of area sources from title V permitting would not adversely 
affect public health, welfare, or the environment, consistent with the 
legislative history of section 502(a). The reasons EPA explained in the 
proposal were the factors supporting exemptions discussed above and two 
other reasons: (1) That placing all requirements for these sources in 
permits would do little to help improve their compliance with the 
NESHAP, because of the simplicity of the sources and the NESHAP, and 
the fact that these sources are not typically subject to more than one 
NESHAP, and few other requirements under the Act, and (2) because 
requiring permits for them could, at least in the first few years of 
implementation, potentially adversely affect public health, welfare, or 
the environment by shifting State agency resources away from assuring 
compliance for major sources with existing permits to issuing new 
permits for these area sources, potentially reducing overall air 
program effectiveness. For the final rule, we continue to believe that 
title V exemptions for these five categories of area sources will not 
adversely affect public health, welfare, or the environment for the 
same reasons discussed in the proposal. See the proposal, 70 FR 15254-
15255, and EPA response to comments on this issue in section VIII.E 
below.
    In conclusion, the four factors and other rationale of the final 
rule are appropriate to analyze whether title V permitting is 
``unnecessarily burdensome'' for these five categories of area sources, 
and we finalize title V exemptions for them based on our analyses of 
these four factors and other rationale. The clarification of the 
factors we did not discuss in the proposal, including the revision of 
factor four, contained in today's final rule, does not change our view, 
as stated in the

[[Page 75327]]

proposal, that title V is ``unnecessarily burdensome'' for the five 
categories of area sources we exempt today. Thus, for these reasons we 
are exempting from title V area sources subject to the part 63 NESHAP 
for dry cleaners, halogenated solvent degreasers, chrome 
electroplaters, EO sterilizers and secondary aluminum smelters. See 
sections IV.B through F, below for more detail on our analysis of the 
four factors for each category of area sources we exempt today.

B. Dry Cleaners

    In the proposal, we described how factors two, three, and four 
support title V exemptions for area sources subject to the NESHAP for 
perchlorethylene dry cleaners, subpart M. We did not discuss factor one 
for dry cleaners, other than to note that title V would not result in 
additional monitoring for these sources, but we do so today below in 
response to comment. See the general discussion of monitoring and the 
specific discussion of dry cleaners in the proposal, 70 FR 15254-15256, 
March 25, 2005.
    First, in the proposal, we explained that title V burdens and costs 
are significant for dry cleaners (factor two), and thus title V will be 
``burdensome'' for them. Dry cleaners are typically small ``mom and 
pop'' retail establishments employing only five people on average, with 
extremely limited technical and economic resources, and low profit 
margins, and title V costs would represent an excessively high 
percentage of sales for them. See the economic profile for dry 
cleaners, docket item 04. In addition, concerning factor two, the 
burdens of title V for dry cleaners would not likely be mitigated by 
assistance from permitting authorities because the authorities would 
likely not be able to meet the high demand caused by title V permitting 
for up to 28,000 dry cleaners nationally. Thus, we believe title V 
costs are significant for dry cleaners, and that title V is 
``burdensome'' for them, because most are small businesses with limited 
resources, that would be subject to numerous mandatory source 
activities under part 70 or 71 that would represent significant costs 
to them in light of their resources, whether they have standard or 
general permits.
    Second, as described in the proposal, factor four, whether adequate 
oversight by State agencies could achieve high compliance with NESHAP, 
without relying on title V permits, supports a conclusion that title V 
will be ``unnecessary'' for NESHAP compliance, and thus, that title V 
exemptions are appropriate for dry cleaners. However, in response to 
comments, we have revised factor four (explained below), and revised 
factor four continues to support the conclusion that title V is 
``unnecessary'' for compliance with the NESHAP for dry cleaners. 
Revised factor four is whether there are implementation and enforcement 
programs in place that are sufficient to assure compliance with the 
NESHAP for area sources, without relying on title V permits. As further 
described in section VIII.D below, there are implementation and 
enforcement programs in place sufficient to assure compliance with the 
dry cleaning NESHAP, without title V, in all parts of the nation. Also, 
the State survey (docket item 02) shows that most States and local 
agencies report that they conduct State permitting programs, programs 
of routine inspection, and provide different types of compliance 
assistance tools to help assure compliance with the NESHAP, often in 
combination, and that more than half of the agencies that reported 
compliance rate information reported high compliance for dry cleaners 
Also, many State and local agencies reported to us that compliance with 
the dry cleaning NESHAP can best be achieved through compliance 
assistance efforts, such as compliance outreach and education programs, 
and compliance tools, including such tools as calendars designed to 
schedule NESHAP compliance activities, and inspection checklists for 
the NESHAP, rather than by using title V permits. See State and local 
input on compliance assistance programs for area sources, including dry 
cleaners (docket items 02, 03, 06, and 08); an example of a compliance 
calendar for dry cleaners (docket item 90), and an inspection checklist 
for dry cleaners (docket item 95); and State and local agency comments 
in support of the proposed exemptions (docket items 11, 16, 59, 61, and 
65). The EPA agrees with those commenters who stated that non-title V 
compliance approaches are more likely to be successful for implementing 
the dry cleaning NESHAP. Also, see section VIII.D below for more on our 
decision to revise factor four.
    Third, in the proposal, we explained that the costs of title V for 
dry cleaners are not justified taking into consideration the potential 
gains in compliance likely to occur from title V (the third factor). 
Consistent with the explanation above of factor two for dry cleaners, 
title V costs will be significant for them. Also, consistent with 
revised factor four for dry cleaners, title V is ``unnecessary'' for 
NESHAP compliance for them, so it follows that the potential for gains 
in compliance is low. Thus, for dry cleaners, title V costs are high 
and the potential for compliance gains from title V are low. Although 
there may be some compliance benefits from title V for dry cleaners 
(discussed below), we believe they will be small, and not justified by 
title V costs and burdens for them. Accordingly, for dry cleaners, we 
conclude that title V costs are not justified taking into consideration 
the potential for gains in compliance from title V.
    In addition, as we explained in the proposal, the large number of 
dry cleaners that are area sources (up to 28,000 nationally) makes it 
likely that permitting them would strain the resources of State 
agencies, potentially reducing overall air program effectiveness, and 
thus, potentially adversely affecting public health, welfare, or the 
environment.
    With respect to factor one for dry cleaners, we explained in the 
proposal that title V would not result in additional monitoring for 
these sources, and we have reaffirmed this conclusion today. See 
section IV.A. We did not discuss the recordkeeping and reporting 
component of factor one in the proposal, but we do so here in response 
to comment. As discussed in section IV.A, the dry cleaning NESHAP does 
not contain reporting requirements that are directly comparable to the 
title V requirements for deviation reports, six-month monitoring 
reports, and annual compliance certification. [See Sec. Sec.  
70.6(a)(3)(iii) and 71.6(a)(3)(iii).] However, this does not mean that 
the reporting requirements of the NESHAP are inadequate to achieve 
compliance on their own. Indeed, in issuing the NESHAP for these 
sources, EPA determined that the recordkeeping and reporting 
requirements contained therein were adequate, and EPA continues to 
believe that this is the case. [See 58 FR 49354, September 22, 1993.] 
We acknowledge that the additional reporting requirements that would be 
provided through title V may have some marginal compliance benefits, 
however, we believe they would not be significant. Because the 
monitoring required by the NESHAP is consistent with the monitoring 
requirements of title V, and because the NESHAP itself has adequate 
recordkeeping and reporting requirements tailored to the NESHAP, we 
conclude that factor one supports an exemption for dry cleaners. Also 
for dry cleaners, factor four (described above) independently supports 
that title V is ``unnecessary'' for NESHAP compliance. Consequently, 
our view of the appropriateness of a title V exemption for dry cleaners 
is unaffected by our expanded analysis of

[[Page 75328]]

factor one for them, and we exempt them in today's final rule.
    Thus, factors one, two, three, and revised factor four, support the 
exemption findings of the proposal, and EPA concludes that title V 
exemptions are appropriate for area sources subject to the NESHAP for 
dry cleaners, consistent with the ``unnecessarily burdensome'' 
criterion of section 502(a) of the Act.

C. Chrome Electroplaters

    In the proposal we described how factors one and two support title 
V exemptions for area sources subject to the NESHAP for hard and 
decorative chrome electroplating and chromic acid anodizing 
(electroplaters), subpart N. We did not discuss factors three and four 
for electroplaters in the proposal, but we do so below in response to 
comment. See the discussion of electroplaters in the proposal, 70 FR 
15256, March 25, 2005.
    First, in the proposal, we stated that title V would impose 
significant burdens (including costs) for electroplaters (the second 
factor), and thus, title V will be ``burdensome'' for them. We based 
this view on our review of economic information (docket item 04), and 
information on title V burdens and costs (docket items 80 and 81). 
After viewing the comments received, and upon further consideration we 
continue to believe that title V burdens and costs are significant for 
electroplaters that are area sources because most are small businesses 
with limited resources, that would be subject to numerous mandatory 
activities under parts 70 or 71, that would impose significant costs in 
lights of their resources, whether they had a general or standard 
permit. Also, see discussion of the second factor in section IV.A 
above.
    Second, in the proposal, we explained that the compliance 
requirements of title V and the NESHAP for electroplaters are 
substantially equivalent, so title V will not result in any new 
significant compliance requirements over those already required by the 
NESHAP (the first factor), and thus, title V will be ``unnecessary'' 
for NESHAP compliance. We reaffirm this finding today with respect to 
monitoring, in section IV.A. See section VIII.B for response to a 
comment that the interpretation of title V's monitoring requirements in 
the proposal was flawed, and section VIII.G below for EPA response to a 
comment that title V permits are needed to define monitoring 
requirements for electroplaters. With respect to recordkeeping and 
reporting, the electroplating NESHAP requires area sources to submit 
on-going compliance status reports, including a description of the 
NESHAP emission limitations or work practice standards, the operating 
parameters monitored to show compliance, information about the results 
of monitoring, including about excess emissions and exceedances of 
monitoring parameters, and a certification by a responsible official 
that work practices are followed. This report is required on an annual 
or six-month basis, depending on the frequency of periods of excess 
emissions. These reports result in information that is substantially 
equivalent with respect to assuring compliance as that required in six-
month monitoring reports, deviation reports, and annual compliance 
certification reports under title V.
    In the proposal, we did not discuss factor three, whether title V 
costs are justified, for electroplaters, taking into consideration any 
potential gains in compliance likely to occur through title V, but our 
analysis of factor three for the final rule is that it supports title V 
exemptions for them. Consistent with the explanation above of factor 
two, title V costs are significant for electroplaters. Also, for 
electroplaters, consistent with factors one (discussed above) and 
revised factor four (discussed below), both of which examine the 
ability of title V permits to improve compliance over that required by 
the NESHAP, title V is ``unnecessary'' for NESHAP compliance, so it 
follows that the potential for gains in compliance from title V will be 
low. Thus, for electroplaters, title V costs are high and the potential 
for gains in compliance from title V is low. Although there may be some 
compliance benefits from title V for electroplaters, we believe they 
will be small, and not justified by title V costs and burdens for them. 
Accordingly, for electroplaters, we conclude that title V costs are not 
justified considering the potential for gains in compliance from title 
V.
    Also, in the proposal, we did not discuss factor four, whether 
adequate oversight by State agencies could achieve high compliance with 
NESHAP, without relying on title V permits, for electroplaters. In 
response to comments, we have revised factor four, and revised factor 
four supports the title V exemption findings of the proposal for 
electroplaters. Revised factor four is whether there are implementation 
and enforcement programs in place that are sufficient to assure 
compliance with the NESHAP for area sources, without relying on title V 
permits. As further described in section VIII.D below, there are 
implementation and enforcement programs in place sufficient to assure 
compliance with the electroplating NESHAP, in all part of the nation, 
without title V. Also, the State survey (docket item 02) shows that 
most States and local agencies report that they conduct State 
permitting programs, programs of routine inspection, and provide 
different types of compliance assistance tools to help assure 
compliance with the electroplating NESHAP, often in combination, and 
that more than half of the agencies that reported compliance rate 
information reported high compliance for electroplaters. Also, many 
State and local agencies reported to us that compliance with the NESHAP 
for area sources, including for the electroplating NESHAP, can best be 
achieved through compliance assistance efforts, such as compliance 
outreach and education programs, and compliance tools, rather than by 
using title V permits. See State and local input on compliance 
assistance programs for area sources (docket items 02, 03, 06 and 08); 
and State and local agency comments on the proposal, all of which are 
in support of the proposed title V exemptions for the five categories 
of area sources (docket Items, 11, 16, 59, 61, and 65). Also, see 
section VIII.D below for EPA response to comments on factor four.
    Thus, factors one, two, three, and revised factor four, support the 
exemption findings of the proposal, and consequently, title V 
exemptions are appropriate for area sources subject to the NESHAP for 
electroplating, consistent with the ``unnecessarily burdensome'' 
criterion of section 502(a) of the Act.

D. Solvent Degreasers

    In the proposal, we discussed how factors two and four support 
title V exemptions for area sources subject to the NESHAP for 
halogenated solvent degreasing, subpart T. With respect to factor one, 
we explained that title V would not result in additional monitoring for 
these sources, and we have reaffirmed this conclusion today. See 
Section IV.A. We did not discuss the recordkeeping and reporting 
component of factor one or factor three for degreasers, but we do so 
below in response to comment. See the discussion of degreasers in the 
proposal, 70 FR 15256-15257, March 25, 2005.
    First, in the proposal, we explained that requiring title V permits 
would impose a significant burden on degreasers that they will have 
difficulty meeting with current resources (factor two), and thus, title 
V will be ``burdensome'' for them. Area source degreasers are typically 
small operations

[[Page 75329]]

employing only a few people, with limited technical and economic 
resources, and little experience in environmental regulations. Also, 
unlike the larger major sources, area source degreasing operations 
typically have no staff trained in environmental requirements and are 
generally unable to afford to hire outside professionals to assist them 
with understanding and meeting the permitting requirements. See the 
economic profile for degreasers, docket item 04. We received comment 
supporting this view (see docket item 31), and now we conclude that 
degreasers are small businesses with limited resources, subject to 
numerous mandatory activities under parts 70 or 71, that will be 
burdensome for them to meet, whether they have a general or standard 
permit; and that this means title V is ``burdensome'' for them. Also, 
see discussion of the second factor in section IV.A above.
    Second, in the proposal, we explained that factor four, whether 
adequate oversight by State agencies could achieve high compliance with 
NESHAP, without relying on title V permits, supports title V exemptions 
for degreasers. In response to comments, we have revised factor four 
and revised factor four is whether there are implementation and 
enforcement programs in place that are sufficient to assure compliance 
with the solvent degreasing NESHAP for area sources, without relying on 
title V permits. The EPA concludes that there are implementation and 
enforcement programs in place sufficient to assure compliance with the 
degreasing NESHAP, in all parts of the nation, without title V (further 
described in section VIII.D below). Also, the State survey (docket item 
02) shows that most States and local agencies report that they conduct 
State permitting programs, programs of routine inspection, and provide 
different types of compliance assistance tools to help assure 
compliance with the degreasing NESHAP, often in combination, and that 
more than half of the agencies that reported compliance rate 
information reported high compliance for degreasers. In addition, many 
State and local agencies reported to us that compliance with the 
degreaser NESHAP can best be achieved through compliance assistance 
efforts, such as compliance outreach and education programs, and 
compliance tools, rather than by using title V permits. [For example, 
see docket item 92, an inspection checklist for degreasers developed by 
a local air pollution control agency.] Thus, for the final rule, 
revised factor four supports that title V is ``unnecessary'' for NESHAP 
compliance for degreasers. See State and local agency input on 
compliance assistance programs (docket items 02. 03, 06, and 08), and 
State and local agency comments submitted in support of the proposed 
exemptions (docket items 11, 16, 59, 61, and 65). Also, see section 
VIII.D below for more on our decision to revise factor four; and 
section VIII.H below for EPA's response to comment on the 
appropriateness of title V exemptions when multiple applicable 
requirements apply to degreasers.
    We did not thoroughly discuss factor one for degreasers in the 
proposal, but we do so here in response to comment. For the reasons 
explained in section IV.A, the degreasing NESHAP contains monitoring 
requirements for area sources that satisfy the requirements of the Act, 
and are sufficient to assure compliance with the NESHAP. However, as 
discussed in section IV.A, the degreasing NESHAP does not contain 
reporting requirements that are directly comparable to the title V 
requirements for deviation reports, six-month monitoring reports, and 
annual compliance certification. [See Sec. Sec.  70.6(a)(3)(iii) and 
71.6(a)(3)(iii).] However, this does not mean that compliance 
requirements of the NESHAP are inadequate to achieve compliance on 
their own. Indeed, in issuing the NESHAP for these sources, EPA 
determined that the recordkeeping and reporting requirements contained 
therein were adequate, and EPA continues to believe that this is the 
case. [See 59 FR 61801, December 2, 1994.] The EPA acknowledges these 
additional title V reporting measures may provide some marginal 
compliance benefits, however we believe they would not be significant. 
Because the monitoring required by the NESHAP is consistent with the 
monitoring requirements of title V, and because the NESHAP itself has 
adequate recordkeeping and reporting requirements tailored to the 
NESHAP, we conclude that the first factor supports a title V exemption 
for degreasers. Also, factor four (described above) independently 
supports the conclusion that title V is ``unnecessary'' for NESHAP 
compliance for degreasers, and thus, that a title V exemption is 
appropriate for them.
    Also, in the proposal, we did not discuss factor three, whether 
title V costs are justified, taking into consideration any potential 
gains in compliance likely to occur for degreasers, but our analysis of 
factor three for the final rule is that it supports title V exemptions 
for them. Consistent with our analysis of factor two for degreasers 
(discussed above), title V costs are significant for them. Also, for 
degreasers, revised factor four (discussed above), which examines the 
ability of title V permits to improve compliance over that required by 
the NESHAP, supports that title V is ``unnecessary'' for NESHAP 
compliance, so it follows that the potential for gains in compliance 
from title V are low. Although there may be some compliance benefits 
from title V for degreasers, we believe they will be small, and not 
justified by title V burdens and costs for them. Accordingly, for 
degreasers, title V costs are not justified taking into consideration 
the potential for gains in compliance from title V, and thus, factor 
three also supports title V exemptions for degreasers.
    Thus, factors one, two, three, and four support the exemption 
findings of the proposal, and EPA concludes that title V exemption is 
appropriate for area sources subject to the NESHAP for solvent 
degreasing, consistent with the ``unnecessarily burdensome'' criterion 
of section 502(a) of the Act.

E. EO Sterilizers

    In the proposal, we described how factors one and four support a 
title V exemption for area sources subject to the NESHAP for EO 
sterilizers, subpart O. We did not discuss factors two and three for EO 
sterilizers, but we do so below in response to comments. See the 
discussion of EO sterilizers in the proposal, 70 FR 15256, March 25, 
2005.
    First, in the proposal, we compared the monitoring and reporting 
requirements of the EO sterilizer NESHAP with those of title V, and we 
stated that the requirements are substantially equivalent (the first 
factor), when sources employ continuous monitoring methods to assure 
proper operation and maintenance of control equipment, such as thermal 
oxidizers. Also, we said that sources that use scrubbers employ 
noncontinuous monitoring methods (e.g., weekly readings of glycol 
levels in tanks), and thus, the recordkeeping and reporting 
requirements for them would not be substantially equivalent to title V. 
Although we were not certain of the number of area sources that employ 
continuous monitoring methods under the NESHAP, we stated a belief that 
most sources would employ such methods, and we asked for comment on the 
percentage of sources that employ them. In addition, we noted that the 
EO sterilizer NESHAP does not require an annual compliance 
certification (as does title V), and we asked for comment on

[[Page 75330]]

the extent to which the lack of an annual compliance certification 
report requirement in the NESHAP would negatively affect compliance 
with the NESHAP.
    For the final rule, we reviewed the EO sterilizer NESHAP once 
again, and we now conclude that sources with scrubbers are required to 
conduct ``continuous'' monitoring under the NESHAP, and therefore, that 
the recordkeeping and reporting requirements of title V and the NESHAP 
are substantially similar for all sources in the category. The EO 
sterilizer NESHAP at Sec.  63.363(f) requires all sources to 
demonstrate continuous compliance, and it sets forth the monitoring 
requirements for demonstrating continuous compliance when the source 
employs scrubbers as emissions controls at Sec.  63.364(b). [See Table 
1 of Sec.  63.360, for a list of the general provisions, subpart A of 
part 63, including definitions and reporting requirements, that apply 
for this NESHAP.] Because they conduct ``continuous'' monitoring, they 
are required to submit excess emissions and continuous monitoring 
system performance report and summary reports, to assess their 
compliance status on a semiannual basis, consistent with Sec.  
63.10(e)(3), the same as sources that use thermal oxidizers as 
emissions controls under the NESHAP. These reports provides compliance 
information that is substantially equivalent to that of Sec. Sec.  
70.6(a)(3)(iii) and 71.6(a)(3)(iii) for deviation reports and six-month 
monitoring reports (see explanation below).
    The EO sterilizer NESHAP requires sources to submit considerable 
information to EPA, or its delegate agency, to assess compliance with 
its emission limitations and standards. Section 63.366(a)(3) requires 
an excess emissions and continuous monitoring system performance report 
and summary report of all sources with a continuous monitoring system 
(CMS), on a semiannual basis, consistent with Sec.  63.366(e)(3). The 
excess emissions and continuous monitoring system performance report 
requires information on periods when the CMS is inoperative, periods of 
excess emissions and parameter monitoring exceedances, the nature and 
cause of each malfunction, any corrective actions taken, including 
repairs or adjustment made, and a certification of accuracy by a 
responsible official. The summary report, consistent with Sec.  
63.10(e)(3), is required to include an emissions data summary for 
control system parameters and a CMS performance summary, which provides 
detailed information on periods of monitoring system downtime and the 
reasons the system was inoperative, including a certification of 
accuracy by a responsible official. [See Sec.  63.10(c)(5) through 
(13); and Table 1 of Sec.  63.360.]
    As described above, the compliance information already required to 
be reported by the EO sterilizer NESHAP is substantial, and it is 
similar to that required for annual compliance certification under 
title V [see Sec. Sec.  70.6(c)(5) and 71.6(c)(5)]. Also, the 
compliance reports required by the NESHAP require certification by a 
responsible official, which is defined similarly in the two programs 
(see Sec.  63.2, and Sec. Sec.  70.2 and 71.2). For these reasons, we 
conclude that the lack of an annual compliance certification report 
under title V will not have a significant impact on compliance for the 
EO sterilizer NESHAP. In addition, as described in section IV.A, title 
V would not add any monitoring requirements for these sources.
    Accordingly, we conclude that the EO sterilizer NESHAP provides 
compliance information that is substantially equivalent to the 
information required under title V. Thus, our analysis of factor one 
for the final rule is that it supports that title V is ``unnecessary'' 
for NESHAP compliance for EO sterilizers. Also, see section VIII.I 
below for EPA response to comments on EPA's analysis of the compliance 
requirements of the EO sterilizer NESHAP.
    Second, in the proposal, we explained that factor four, whether 
adequate oversight by State agencies could achieve high compliance with 
NESHAP, without relying on title V permits, supports title V exemptions 
for EO sterilizers. In response to comment, we have revised factor four 
(explained below), and revised factor four continues to support that 
title V is ``unnecessary'' for compliance with the NESHAP for EO 
sterilizers, and thus, it supports title V exemptions for them. In the 
final rule, revised factor four is whether there are implementation and 
enforcement programs in place that are sufficient to assure compliance 
with the NESHAP for area sources, without relying on title V permits. 
As further described in section VIII.D below, there are implementation 
and enforcement programs in place sufficient to assure compliance with 
the EO sterilizer NESHAP, in all parts of the nation, without relying 
on title V permits. Also, the State survey (docket item 02) shows that 
most States and local agencies report that they conduct State 
permitting programs, programs of routine inspection, and provide 
different types of compliance assistance tools to help assure 
compliance with the EO sterilizer NESHAP, often in combination, and 
that more than half of the agencies that reported compliance rate 
information reported high compliance for EO sterilizers. Also, many 
State and local agencies reported that compliance with the EO 
sterilizer NESHAP can best be achieved through compliance assistance 
efforts, such as compliance outreach and education programs, and 
compliance tools, rather than by using title V permits. See State and 
local input on compliance assistance programs (docket items 02, 03, 06, 
and 08); and comments submitted by State and local agencies, all of 
which are in support of the proposed exemptions for the five categories 
of area sources (docket items 11,16, 59, 61, and 65). Also, see section 
VIII.D below for more on our decision to revise factor four, and 
section VIII.H and VIII.J below for EPA responses to comments on the 
proposed exemption for EO sterilizers.
    In the proposal, concerning factor two, whether title V is a 
significant burden for these area sources, we stated a general belief 
that title V burdens and costs would be significant for all five 
categories of area source, and this statement included EO sterilizers. 
For EO sterilizers, this general belief was not based on any particular 
study or docket support, but instead on a general assessment of the 
types of smaller establishments likely to meet the ``area source'' 
definition of part 63 and conduct EO sterilization activities, e.g., 
libraries and museums conducting fumigation of books and artifacts for 
conservation purposes, and small contract sterilization businesses, 
conducting off-site sterilization services for manufacturers of medical 
equipment and supplies, pharmaceuticals, spices, and cosmetics. See 
docket items 88 and 106.
    In response to the comment that we should consider all four factors 
in evaluating each category of area sources for exemptions, we note 
that the docket does not contain reliable information on the economic 
resources of area sources in the EO sterilizer category, but EPA 
reaffirms the general belief that these types of sources are likely to 
include relatively small businesses or other establishments with 
limited economic resources. EPA is basing its decision to exempt EO 
sterilizer area sources from title V on a consideration of the limited 
information in the record on the types of establishments subject to the 
area source rule, and on its assessment of the other three factors and 
additional rationale noted in its evaluation of the legislative history 
of title V. [See section

[[Page 75331]]

IV.D.] EPA believes title V would be ``unnecessarily burdensome'' for 
EO sterilizer area sources, because title V would impose burdens that 
EPA believes would significantly outweigh the small compliance benefits 
expected from title V permitting for this category, satisfying the 
exemption criterion in section 502(a).
    Also, in the proposal, we did not discuss factor three, whether 
title V costs are justified, taking into consideration any potential 
gains in compliance likely to occur, for EO sterilizers, but we clarify 
in today's final rule that factor three supports title V exemptions for 
them. We described above in the context of factor one and revised 
factor four, both of which examine the ability of title V permits to 
improve compliance over that required by the NESHAP, why we believe 
that title V is ``unnecessary'' for NESHAP compliance for them, so it 
follows that the potential for gains in compliance is low. Although 
there may be some compliance benefits from title V for EO sterilizers, 
we believe they will be small, and not justified by title V costs and 
burdens for them. Although we do not have reliable data on the economic 
resources of EO sterilizers, the costs of title V will be the same for 
these sources as other area sources addressed in this rule. In light of 
the low compliance benefits provided by title V for these sources, we 
do not believe that those costs are justified. Accordingly, for EO 
sterilizers, we conclude that title V costs are not justified taking 
into consideration the potential for gains in compliance from title V, 
and thus, factor three supports title V exemptions for them.
    Thus, factors one, three, and four support the title V exemption 
findings of the proposal for area sources subject to the EO sterilizers 
NESHAP. There is insufficient information to conclude that factor two 
supports an exemption for EO sterilizers, but title V will impose some 
burdens regardless of the financial resources of EO sterilizers, and 
any burdens associated with title V compliance will be unnecessary, 
since title V will not provide any significant compliance benefits for 
them. Therefore, a title V exemption is appropriate for them, 
consistent with the ``unnecessarily burdensome'' criterion of section 
502(a) of the Act.

F. Secondary Aluminum

    In the proposal, we described how factors one and two support title 
V exemptions for area sources subject to the NESHAP for secondary 
aluminum, subpart RRR. We did not discuss factors three and four for 
them, but we do so below in response to comment. See the discussion of 
secondary aluminum in the proposal, 70 FR 15258, March 25, 2005.
    First, in the proposal, we compared the recordkeeping and reporting 
requirements of the secondary aluminum NESHAP with those of title V, 
and we stated that the requirements are substantially equivalent (the 
first factor), when sources employ continuous monitoring methods to 
assure proper operation and maintenance of control equipment, such as 
when sources use thermal oxidizers for emission controls. Also, we said 
that sources that use scrubbers as emissions control do not employ 
continuous methods, and thus, the compliance requirements for them are 
not substantially equivalent to title V. Although we were not certain 
of the number of area sources that employ continuous monitoring methods 
under the NESHAP, we stated a belief that most sources would employ 
such methods, and we asked for comment on the percentage of sources 
that employ them. In addition, we noted that the secondary aluminum 
NESHAP does not require an annual compliance certification (as does 
title V), and we asked for comment on the extent that the lack of an 
annual compliance certification report requirement in the NESHAP would 
negatively affect compliance with the NESHAP.
    For the final rule, we reviewed the secondary aluminum NESHAP once 
again and we now conclude that sources with scrubbers are required to 
conduct ``continuous'' monitoring under the NESHAP. The secondary 
aluminum NESHAP requires CMS for each add-on control device, including 
for scrubbers, when they are approved as an alternative monitoring 
method [e.g., Sec.  63.1510(w)]. [See Appendix A of subpart RRR, for a 
list of the general provisions of subpart A of part 63, including 
definitions and reporting requirements, that apply for this NESHAP; and 
the preamble for the final secondary aluminum NESHAP, 65 FR 15693, 
March 23, 2000, for more on the requirement for continuous compliance 
under the NESHAP.] Because they conduct ``continuous'' monitoring, they 
are required to submit excess emissions/summary reports to assess their 
compliance status, on a semiannual basis, consistent with Sec.  
63.10(e)(3), the same as other sources that use add-on controls, such 
as thermal oxidizers, under the NESHAP. These reports provide 
compliance information that is substantially equivalent to the 
requirements of Sec. Sec.  70.6(a)(3)(iii) and 71.6(a)(3)(iii) for 
deviation reports and six-month monitoring reports (see detailed 
explanation below).
    The secondary aluminum NESHAP requires sources to submit 
considerable information to EPA, or its delegate agency, to assess 
compliance with its emission limitations and standards. Section 
63.1516(b) of the NESHAP requires an excess emissions/summary report 
for all sources with a CMS, on a semiannual basis, consistent with 
Sec. Sec.  63.10(e)(3) and 63.10(c). The excess emissions report 
requires all monitoring data, information on periods when the CMS is 
inoperative, periods of excess emissions and parameter monitoring 
exceedances, the nature and cause of each malfunctions, any corrective 
actions taken, including repairs or adjustment made, certifications by 
a responsible official that certain work practices were performed, and 
the results of any performance tests conducted during the reporting 
period. The summary report, consistent with Sec.  63.10(e)(3), is 
required to include an emissions data summary for control system 
parameters and a CMS performance summary, which provides detailed 
information on periods of monitoring system downtime and the reasons 
the system was inoperative, including a certification of accuracy by a 
responsible official. [See Sec. Sec.  63.1516(b)(2) and (3); and Sec.  
63.1518].
    As described above, the compliance information already required to 
be reported by the secondary aluminum NESHAP is substantial, and 
similar to that required for annual compliance certification under 
title V [see Sec. Sec.  70.6(c)(5) and 71.6(c)(5)]. Also, the 
compliance reports required by the NESHAP require certification by a 
responsible official, which is defined similarly in the two programs 
(see Sec.  63.2; and Sec. Sec.  70.2 and 71.2). Because of the 
substantial information concerning compliance required to be reported 
by the secondary aluminum NESHAP, the lack of an annual compliance 
certification report under title V will not have a significant impact 
on compliance for the NESHAP, and we are satisfied that the 
recordkeeping and reporting component of factor one supports an 
exemption for area sources subject to this NESHAP. [Also, see docket 
item 89, a summary in tabular form of the monitoring, recordkeeping, 
reporting, and other compliance requirements of the secondary aluminum 
NESHAP.] As discussed in Section IV.A, the monitoring component of 
factor one also supports a title V exemption for secondary aluminum 
smelters.
    Accordingly, we conclude that the secondary aluminum NESHAP 
provides compliance information that is

[[Page 75332]]

substantially equivalent to the information required under title V. 
Thus, our analysis of factor one for the final rule is that it supports 
that title V is ``unnecessary'' for NESHAP compliance for secondary 
aluminum. [Also, see section VIII.I below for EPA's response to 
significant comments on the proposed exemption for secondary aluminum 
smelters.]
    Second, in the proposal, we discussed that title V permitting would 
impose a significant burden on these area sources that would be 
difficult for them to meet with current resources (the second factor). 
In 2001, there were over 1,300 facilities in the secondary aluminum 
industry. Half of these facilities employed fewer than 20 employees. 
These small sources will likely lack the technical resources needed to 
comprehend and comply with permitting requirements and the financial 
resources needed to hire the necessary staff or outside consultants. 
Accordingly, we conclude that title V is ``burdensome'' for them 
because almost all of them are small businesses with limited resources, 
and they will be subject to numerous mandatory sources activities under 
part 70 and 71, that it will be burdensome for them to meet, whether 
they have a standard or general permit. Thus, for the final rule, we 
believe factor two supports title V exemptions for secondary aluminum 
smelters.
    We did not discuss factor three in the proposal, whether title V 
costs are justified, taking into consideration any potential gains in 
compliance likely to occur, for area sources subject to the NESHAP for 
secondary aluminum, but we clarify in today's final rule that factor 
three supports title V exemptions for them. We explained above that 
title V imposes significant burdens and costs on these area sources 
(factor two). Also, for secondary aluminum area sources, consistent 
with factor one (described above) and revised factor four (discussed 
below), both of which examine the ability of title V permits to improve 
compliance over that required by the NESHAP, title V is ``unnecessary'' 
for NESHAP compliance, so it follows that the potential for gains in 
compliance for them is low. Although there may be some compliance 
benefits from title V for secondary aluminum area sources, we believe 
they are small, and not justified by title V costs and burdens for 
them. Accordingly, for secondary aluminum, title V costs are not 
justified for area sources taking into consideration the potential for 
gains in compliance from title V, and thus, factor three supports title 
V exemptions for them.
    In the proposal, we did not discuss factor four for secondary 
aluminum smelters, whether adequate oversight by State agencies could 
achieve high compliance with NESHAP, without relying on title V 
permits, for secondary aluminum. In response to comments, we have 
revised factor four, and revised factor four supports the conclusion 
that title V is ``unnecessary'' for compliance with the NESHAP for 
secondary aluminum, and thus, it supports a finding that title V 
exemptions are appropriate for them. Revised factor four is whether 
there are implementation and enforcement programs in place that are 
sufficient to assure compliance with the NESHAP for area sources, 
without relying on title V permits. As further described in section 
VIII.D below, there are implementation and enforcement programs in 
place sufficient to assure compliance with the secondary aluminum 
NESHAP, in all parts of the nation, without relying on title V. These 
programs take several forms, including programs conducted under the 
statutory authority of sections 112, 113, and 114 of the Act, State 
delegations under section 112(l), SBAP under section 507, and voluntary 
compliance assistance, outreach, and education programs. Factor four is 
satisfied for this category by the statutory requirement for 
implementation and enforcement of NESHAP in section 112, which applies 
to all NESHAP, including this one. For secondary aluminum, the State 
survey confirms that adequate compliance is being achieved in practice 
by States (more than half of the agencies that reported compliance rate 
information reported high compliance), but there were fewer examples of 
compliance oversight programs and fewer responses to the compliance 
rate question for this category, compared to other categories. We 
believe these data are explained by the timing of the State survey 
relative to the effective date of the secondary aluminum standard, 
rather than suggesting any deficiencies in State implementation and 
enforcement for the NESHAP. The timing of the State survey explains the 
response to questions concerning secondary aluminum because the 
earliest date that compliance with the secondary aluminum NESHAP was 
required was about the same time as the data collection phase of the 
State survey. Thus, State and local agencies did not have much 
experience with compliance oversight for secondary aluminum, or much 
compliance data upon which to base their survey responses for this 
category at the time the State survey was conducted. The secondary 
aluminum NESHAP did not require sources to be in compliance until March 
24, 2003 (all other NESHAP were effective much earlier than this), 
while the majority of State and local input for the State survey 
occurred from March to June of 2003. [See the final rule for secondary 
aluminum, 65 FR 15690, March 23, 2000, docket item 77, and 
documentation of the data collection phase of the State survey, docket 
items 93 and 94.] Also, many State and local agencies reported to us 
that compliance with the NESHAP for area sources, including for the 
secondary aluminum NESHAP, can best be achieved through compliance 
assistance efforts, such as compliance outreach and education programs, 
and compliance tools, rather than by using title V permits. See State 
and local input on compliance assistance programs for area sources 
(docket items 02, 03, 06 and 08); and State and local agency comments 
on the proposal, all of which are in support of the proposed title V 
exemptions for the five categories of area sources (docket Items, 11, 
16, 59, 61, and 65). For these reasons, we conclude in the final rule 
that factor four supports title V exemptions for area sources subject 
to the secondary aluminum NESHAP. [Also, see section VIII.D for EPA 
response to comments on proposed factor four.]
    Thus, factors one, two, three, and four support the title V 
exemption findings, and, consequently, title V exemptions are 
appropriate for area sources subject to the NESHAP for secondary 
aluminum, consistent with the ``unnecessarily burdensome'' criterion of 
section 502(a) of the Act.

V. What Is EPA's Decision for Secondary Lead Smelters?

    In the proposal, we declined to make a finding that title V 
permitting for area sources subject to the NESHAP for secondary lead 
smelting would be impracticable, infeasible, or unnecessarily 
burdensome, and we asked for comment to help us determine if we should 
make such a finding. We considered the same factors for these area 
sources as we did for other categories of area sources, but we did not 
have a basis for finding that an exemption was warranted, as for the 
other area sources addressed in this rulemaking. We did not receive any 
information or data during the comment period sufficient to support a 
finding that permitting these area sources would be ``impracticable, 
infeasible, or unnecessarily burdensome'' on such sources or that 
exemptions would ``not adversely affect public health, welfare,

[[Page 75333]]

or the environment,'' nor did we receive any comments in opposition to 
our proposal not to exempt secondary lead area sources. For these 
reasons, the final rule will not exempt these area sources from title V 
requirements. See 70 FR 15259.
    Any area source subject to the secondary lead NESHAP that has not 
already applied for a title V permit is required to submit a title V 
permit application by December 9, 2005, as provided in Sec.  63.541(c) 
of subpart X. Also, as provided in Sec.  70.3(c)(2) and Sec.  
71.3(c)(2), assuming the source is an area source and not subject to 
title V for another reason, the permit must include the requirements of 
subpart X and all other applicable requirements that apply to emissions 
units affected by subpart X, while any units not subject to subpart X 
may be excluded from the permit. (See 68 FR 57518, October 3, 2003, 
footnote 7 on page 57534.)

VI. May Title V Permits Be Issued to Exempt Area Sources?

    In the proposal, we explained and sought comment on our proposed 
interpretation of the Act as allowing only those area sources required 
to be permitted under section 502(a), and not exempted by EPA through 
notice and comment rulemaking to be subject to title V requirements. We 
are finalizing that interpretation in today's final rule. Thus, after 
the effective date of today's final rule, permitting authorities, 
including State and local agencies, tribes, and EPA, may not issue 
title V permits, including general permits, to area sources we exempt 
in today's final rule. This interpretation of the Act means that 
permitting authorities must stop issuing new title V permits to area 
sources we exempt today, unless they are subject to title V for another 
reason. Also, this means that any existing title V permits for such 
exempted area sources must be revoked or terminated after the effective 
date of today's final rule. However, to avoid disruptions to State 
programs, States may wait until renewal to end the effectiveness of 
such permits, unless an area source requests that this be done 
expeditiously. The EPA believes that State issuance of title V permits 
to area sources that EPA has exempted from title V permitting 
requirements would conflict with Congress's intent that EPA define the 
universe of sources subject to title V, and through inappropriate focus 
on sources that qualify for an exemption, would be an obstacle to 
implementation of the title V program. Even if the statute were 
ambiguous in this regard, EPA would exercise its discretion to 
interpret it this way to promote effective title V implementation. The 
proposal included a discussion of these issues, and in the final rule, 
EPA's interpretation of the Act in this regard is unchanged from the 
proposal. See section VI below for more on EPA's interpretation of 
these Act provisions. Note, however, that EPA interprets Section 116 of 
the Act to allow permitting authorities to issue non-title V permits to 
area sources that we have exempted from title V permitting. Such 
permits may include preconstruction permits, FESOPS or other State 
operating permits, or other permits not issued pursuant to an approved 
part 70 program.

VII. May General Permits Be Issued as an Alternative to Title V 
Exemptions?

    The EPA has decided not to adopt the alternative, discussed in the 
proposal, of allowing permitting authorities to issue general permits 
to these area sources. The proposal discussed general permitting as a 
streamlined process for issuing title V permits to a large number of 
similar sources, and it stated that these area sources may be good 
candidates for such permits. The proposal also analyzed the factors and 
other rationale we used for title V exemptions against the requirements 
for general permits, and we stated our belief that potential reductions 
in costs and burdens from requiring general permits would not be 
sufficient to alter our findings. [See this discussion in the proposal 
at FR 15258-15259.] With respect to the first factor, the proposal said 
that general and standard permits are subject to the same permit 
content requirements under Sec. Sec.  70.6 and 71.6, so title V would 
affect units to which the NESHAP applies in the same manner for general 
permits, as for standard permits. For the second factor, the proposal 
stated that general permits would potentially simplify the permit 
application process, but general permits would require area sources to 
conduct many of the same mandatory activities as sources with standard 
permits, and thus, impose many of the same title V burdens and costs as 
standard permits. [See the list of source activities in the discussion 
of factor two in the proposal, 70 FR 15254.] For the third factor, the 
proposal observed that general permits may reduce the costs of applying 
for a permit, but the remaining costs to meet the permit requirements 
will continue to be a burden for these area sources. This is so because 
general permits reduce some burdens, but other significant burdens 
remain. And, we explained that EPA's outreach in recent years has shown 
that most State agencies generally do not believe that implementing 
NESHAP for area sources through permits will result in increased 
compliance, and that this would be true for general permits, as with 
standard ones. This point was also made in comments submitted by State 
and local agencies, all of which are in support of the proposed title V 
exemptions for the five categories of area sources, see docket items, 
11, 16, 59, 61, and 65. For the fourth factor discussed in the 
proposal, we said the permit content requirements of Sec. Sec.  70.6 
and 71.6 are identical for general and standard permits, and the 
ability of State agencies to ensure NESHAP compliance outside of the 
title V programs will apply with equal force for general permits. 
Nevertheless, we offered general permitting as an alternative to title 
V exemptions in the proposal, and we sought comment on this 
alternative.
    Some commenters expressed the view that general permitting should 
be required as an alternative to title V exemptions because they 
believe title V is critical for compliance with the NESHAP. Today's 
final rule does not require general permits for these area sources as 
an alternative to exempting them for several reasons. First, through 
factors one and revised factor four, which we use to examine the 
ability of title V permits to improve compliance over that required by 
the NESHAP, we established that title V is ``unnecessary'' for NESHAP 
compliance for these area sources, whether they have a general or 
standard permit. [See detailed analysis of the factors one and four in 
sections IV.A, VIII.A, and VIII.D.] Second, under section 504(d) of the 
Act, issuing general permits to sources subject to title V is an option 
for State and local agencies; an EPA decision not to exempt these 
sources does not provide a means of ensuring that they would then 
receive general permits. Also, because general permits are an option, 
State and local permitting authorities would not be required to issue 
them to area sources that request them. Because of this, the best 
course of action to avoid unnecessary burdens for these area sources, 
and to promote a focus by regulatory agencies on the type of oversight 
we believe will be most effective in achieving compliance, is to exempt 
them from title V in today's final rule. See section VII below for more 
on EPA's decision to not require general permits for these area 
sources.

VIII. What Are EPA's Responses to Significant Comments?

    This section of today's preamble discusses the more significant 
comments received on our March 25, 2005 proposal that are not addressed 
elsewhere in today's preamble, and

[[Page 75334]]

EPA's responses to these comments. The EPA's response to all comments 
(significant comments and other comments) is included in a response to 
comment document which is in the docket for this rulemaking.

A. Is EPA's General Approach to Exemptions Consistent With the Act?

    Many commenters disagreed with the proposed title V exemptions 
because they did not agree that the four factors and other rationale we 
used to justify the exemptions were consistent with the Act. In 
response, the four factors and other rationale referred to in the 
proposal, and again in this final rule, are not intended to replace the 
statutory criteria for a title V exemption, but instead assist EPA in 
evaluating whether the statutory criteria are satisfied. Section 502(a) 
of the Act gives EPA discretion to exempt from title V area sources 
subject to NESHAP, if permitting them would be ``impractical, 
infeasible or unnecessarily burdensome'' on the area sources, while the 
legislative history for this provision suggests the EPA should also 
consider whether an exemption would ``adversely affect public health, 
welfare, or the environment.'' The EPA used the four factors to analyze 
whether title V would be ``unnecessarily burdensome'' on the area 
sources, consistent with section 502(a). (See the explanation of the 
four factors and other rationale of the proposal at 70 FR 15253-15255, 
March 25, 2005.)
    Factor one was used to analyze whether title V is ``unnecessary'' 
for NESHAP compliance by examining whether title V would add 
substantial compliance requirements over those already required by the 
NESHAP. Factor two was used to analyze whether title V will impose 
significant burdens on area sources and whether these burdens will be 
aggravated by difficulties area sources will experience in obtaining 
assistance from State agencies. Factor three was used to analyze 
whether title V costs are justified considering potential gains in 
compliance from title V. If the costs of title V are high, burdens are 
also high because costs are burdens; and if potential compliance gains 
derived from title V are low, title V is more likely to be considered 
``unnecessary'' for NESHAP compliance. Factor four was used in the 
proposal to analyze whether adequate oversight by State agencies could 
achieve high compliance with NESHAP without title V permits. If high 
compliance with NESHAP can be achieved without title V, title V will 
more likely be considered ``unnecessary'' for NESHAP compliance. We 
have revised factor four in response to comments received on the 
proposal. See more on revised factor four below.
    In addition to the four factors, the EPA considered whether 
exempting these area source from the need for title V permits could 
cause adverse effects on public health, welfare, or the environment, at 
least on a temporary basis, or whether requiring title V permitting 
could have such adverse effects because of shifts in the resources of 
State agencies away from assuring compliance for major sources with 
existing permits to issuing new permits for these area sources. We do 
not believe that exemptions from title V permitting for these area 
sources will have adverse effects on public health, welfare or the 
environment. First, as we explained in section IV above, through our 
analysis of factors one and/or four for each of the five categories of 
area sources, we established that title V is ``unnecessary'' for 
compliance with the NESHAP, for each category of area source. Second, 
as we explained in the proposal, the vast majority of these area 
sources are typically subject to no more than one NESHAP, and few other 
requirements under the Act. Also, the area sources are simple sources 
with few emissions units and the NESHAP are relatively simple in how 
they apply to these area sources. Because of these characteristics, the 
likelihood that multiple NESHAP apply to the same area source is low, 
and thus the need for a title V permit to clarify multiple or 
overlapping NESHAP is also low. (See docket item 08 for State input on 
the likelihood that multiple requirements will apply and the relative 
simplicity of these sources.) Also, see EPA response to comments on 
whether title V permit are needed to define monitoring for 
electroplaters, section VIII.G, and EPA response to comment on whether 
degreasers should be exempted when there are multiple applicable 
requirement that apply to them, section VIII.H. In sum, EPA believes 
that the factors and additional rationale that it has considered in 
evaluating whether title V exemptions should be issued for the area 
sources covered by today's rule appropriately probe whether title V is 
``unnecessarily burdensome'' for the area sources, and whether an 
exemption could cause adverse effects on public health, welfare or the 
environment.
    Several commenters were concerned that title V exemptions for these 
area sources would result in the loss of certain title V benefits with 
respect to State implementation plan (SIP) requirements, and that this 
would result in adverse affects on public health, welfare, and the 
environment. We disagree with this comment because we do not believe 
title V exemptions for these area sources will have the effects 
suggested by the commenter to any significant extent for the reasons 
explained below.
    First, the majority of area sources we exempt today (all of the dry 
cleaners and many solvent degreasers), emit HAP that are not a criteria 
pollutant subject to regulation under a SIP, so such adverse effects 
for SIP requirements could not occur for these sources. This is the 
case because Sec.  51.100(s), which defines VOC for purposes of SIP, 
specifically excludes perchloroethylene (also known as 
tetrachloroethylene), methylene chloride (dichloromethane), and 1,1,1-
trichloroethane (methyl chloroform) from the definition of VOC. Because 
the only HAP regulated by subpart M is perchloroethylene, all area 
source dry cleaners regulated under the NESHAP (estimated at up to 
28,000 area sources) do not emit VOC. Also, many degreasers subject to 
subpart T use perchloroethylene, methylene chloride, or 1,1,1,-
trichloroethane (including any combination of these), and if they emit 
no other HAP that are VOC, then they also would not be subject to SIP 
requirements for VOC. We estimate that there are up to 3,800 area 
source degreasers subject to the NESHAP, but we have no estimate of how 
many of these solely emit HAP that is not VOC. Also, EPA has focused on 
VOC in this discussion because we are unaware of any other criteria 
pollutant definitions that would be met by these three HAP.
    Second, title V permits for area sources are limited in scope by 
Sec. Sec.  70.3(c)(2) and 71.3(c)(2), which only require the emission 
units that cause the source to be subject to title V (in this case the 
units subject to NESHAP) to be included in the permit. Under these 
regulations, if SIP requirements apply to an emissions unit, and NESHAP 
does not, the unit is not required to be included in the area source 
permit. For example, for a dry cleaner, the permit would only address 
dry cleaning equipment, not other emissions units that may be 
collocated at the area source, such as comfort heating systems subject 
only to SIP requirements. This is quite different than for major 
sources because Sec. Sec.  70.3(c)(1) and 71.3(c)(1) requires major 
source permits to include all emissions units at the source, even those 
that would not be subject to NESHAP. Thus, the extent that title V 
exemptions for area sources would result in loss of compliance benefits 
for SIP requirements is quite limited by the permit content 
requirements for area sources, as compared to major sources.
    Third, in our experience the NESHAP are more stringent than typical 
SIP

[[Page 75335]]

requirements that would apply to these area sources. Because of this, 
if a SIP and NESHAP apply to the same unit, any deficiencies in the SIP 
requirements are likely to be corrected by the more stringent NESHAP 
requirements, without the need for title V permits. Also, these NESHAP 
compliance requirements are consistent with the Act, such that title V 
permits are not needed to improve the compliance requirements of NESHAP 
(this is described in more detail in section VIII.B below).
    The commenter submitted no specific examples where emission units 
subject to NESHAP are also subject to SIP requirements, but two 
scenarios may be helpful in analyzing their claims, which we believe 
are without merit. Both examples involve the so-called ``generic 
applicable requirements'' that we believe would most commonly apply to 
these area sources. These are relatively simple requirements that apply 
identically to all emissions units at a facility. Also, both are 
examples where the HAP meets the definition of VOC under Sec.  
51.100(s) and potentially is subject to regulation under a SIP 
(although we are not sure all SIPs regulate such units). The first 
scenario is where a HAP, such as carbon tetrachloride, is regulated by 
the degreaser NESHAP, and it is also VOC regulated under the SIP by a 
pound per hour limit.\6\ The second is where a HAP, such as dioxin/
furan, is regulated by the secondary aluminum NESHAP,\7\ and it is also 
PM regulated under the SIP by a process weight limit. In both cases, 
EPA believes the NESHAP will be far more stringent than the SIP 
requirements in terms of emission controls and compliance requirements. 
Because of this, the NESHAP requirements will ensure that the area 
source also meets the SIP requirements, and the compliance requirements 
of the NESHAP will be consistent with the compliance requirements of 
the Act, including title V. In addition, EPA has previously advised 
States that ``generic'' requirements of the SIP (described above), that 
are less stringent than other applicable requirements addressing the 
same units and pollutants may be omitted from title V permits, provided 
that the resulting ``streamlined'' terms and conditions achieve 
compliance with all the applicable requirements. [See discussion of 
treatment of ``generic'' requirements in White Paper Number 2 for 
Improved Implementation of the Part 70 Operating Permits Program, March 
6, 1996, docket item 100; and discussion of factor one in section IV.A 
of this preamble.]
---------------------------------------------------------------------------

    \6\ Note that these are the same emissions under different 
definitions, so if you control one, you control the other.
    \7\ The secondary aluminum NESHAP only regulates dioxin/furan 
emissions for a limited set of emission units for area sources, 
while additional HAP are regulated at additional emission units for 
major sources. [See Sec.  63.1500(c).]
---------------------------------------------------------------------------

    In addition, we explained in the proposal that requiring permitting 
of area sources will likely cause, at least in the first few years of 
implementation, permitting authorities to shift resources away from 
assuring compliance for major sources with existing permits, to issuing 
new permits for area sources. This has the potential, at least 
temporarily, to reduce the overall effectiveness of States' title V 
permit programs, which could potentially adversely affect public 
health, welfare, or the environment. See docket item 08, where State 
officials explain that permitting all the area sources proposed for 
exemption would triple the number of title V permits issued in the 
State, and that it would be difficult for them to obtain approval to 
obtain additional full-time employees. Although State title V programs 
are required to have authority to raise title V fees as necessary to 
cover the costs of the program, in most States the program must seek 
budget and fee increases through the State legislature as part of the 
State budget process, which can lead to significant delays in getting 
approval to increase fees or resources to meet new demands. Also, see 
EPA response to comments on the legislative history guidance that title 
V exemptions for area sources should not cause adverse effects on 
public health, welfare, or the environment, in section VIII.E below.
    One commenter said we should have discussed all four factors for 
each category of area sources, suggesting that we ignored factors that 
did not support the proposed title V exemptions for each category of 
area sources. In response, we did not discuss all four factors for each 
category of area sources in the proposal because we thought those 
factors we identified as present supported a finding that title V was 
``unnecessarily burdensome,'' regardless of any determinations that 
could be made regarding factors not analyzed. Nevertheless, in response 
to this comment, and to provide a full discussion of all issues 
potentially relevant to this rulemaking, we discuss the four factors 
for each category of area sources elsewhere in the preamble for today's 
final rule.

B. Does the First Factor Acknowledge Key Title V Requirements?

    One commenter thought the first factor, whether title V adds 
significant compliance requirements beyond those required by a NESHAP, 
was not appropriate for analyzing the exemption criterion of section 
502(a) of the Act because it fails to acknowledge key title V 
requirements that would be lost under a title V exemption, directly at 
odds with sections 504(a) and 504(c) of Act.
    In response, the proposal's discussion of factor one focused on the 
key compliance requirements of title V that are most likely to add 
significant compliance benefits for area sources subject to NESHAP. We 
explained that title V imposes a number of monitoring, recordkeeping, 
and reporting requirements for compliance. We focused our review on the 
requirements for monitoring, and the recordkeeping/reporting 
requirements for prompt reports of deviations from permit requirements 
(deviation reports) and for reports of required monitoring every six 
months (six-month monitoring reports) under Sec. Sec.  70.6(a)(3)(iii) 
and 71.6(a)(3)(iii), and the requirement for an annual compliance 
certification by a responsible official under Sec. Sec.  70.6(c)(5) and 
71.6(c)(5). Nevertheless, to provide a more complete response to the 
comment in the final rule, we describe below several other compliance 
aspects of title V that we were silent on in the proposal, including 
the requirements of section 504(a) for the permit to include ``a 
schedule of compliance,'' and ``such other conditions as necessary to 
assure compliance with applicable requirements of the Act, including 
the requirements of the applicable implementation plan [e.g., SIP],'' 
and the requirement of section 504(c) for permits to contain 
``inspection'' and ``entry * * * requirements to assure compliance with 
the permit terms and conditions.''
    Concerning the requirement of section 504(a) for schedules of 
compliance, there is independent authority for establishing schedules 
of compliance to bring noncompliant sources back into compliance under 
the general enforcement authority of section 113 of the Act, which 
applies to these NESHAP. Also, the approval criteria for delegation 
requests for NESHAP requires the Attorney General's written finding to 
say that the delegate agency has enforcement authorities that meet the 
requirements of Sec.  70.11, which requires them to have authority to 
obtain an order, pursue a suit in court, or seek injunctive relief for 
violations, and this may result in a schedule of compliance, where 
appropriate, equivalent to any that may be obtained through title V. 
Thus, a title V permit is not necessary to establish a schedule of 
compliance for any of the area sources

[[Page 75336]]

we exempt today, in the event of noncompliance with these NESHAP.
    Concerning the requirement of section 504(a) that permits contain 
``enforceable emission limitations and standards,'' the five NESHAP 
addressed in today's final rule establish such emission limitations and 
standards, and they are independently enforceable outside of title V 
permits. Also, title V does not contain authority for creating new 
emission limitations and standards under section 112 in title V 
permits, so no such emission limitations or standards would be lost 
through title V exemptions for these area sources.
    Concerning the requirement of section 504(a) that permits include 
conditions to assure compliance with the requirements of the applicable 
implementation plan (the SIP, for example), we described in section 
VIII.A above why exempting these area sources from title V would not 
significantly affect compliance with SIP requirements that may also 
apply to such area sources. Also, we add that these SIP requirements 
are independently enforceable under the authority of section 110 of the 
Act, so their implementation and enforcement does not depend on title 
V.
    Concerning the requirements of section 504(c) for permits to 
contain inspection and entry requirements, when EPA is responsible for 
implementation and enforcement of the NESHAP such requirements would be 
met under the authority granted EPA by section 114 of the Act. State 
and local agencies or tribes are required to have such authority as a 
condition of approval for any delegation request they make, consistent 
with section 112(l) of the Act. For example, agencies requesting 
delegation of NESHAP are required to submit, as part of their 
delegation request, a written finding by the State Attorney General (or 
General Counsel for local agencies and tribes) that they have legal 
authority ``to request information from regulated sources regarding 
their compliance status,'' under Sec.  63.91(d)(3)(i)(B), and ``to 
inspect sources and any records required to determine a source's 
compliance status,'' under Sec.  63.91(d)(3)(i)(C). In addition, as 
part of their delegation requests, agencies are required to submit a 
plan that ``assures expeditious compliance by all sources,'' including 
a description of ``inspection strategies.''
    Also related to the comment and response above, several commenters 
said our analysis of factor one in the proposal was inadequate because 
we relied on an illegal interpretation of the Act's monitoring 
requirements through our reliance on the ``umbrella monitoring'' rule 
of January 22, 2004. These commenters argue that Sec. Sec.  70.6(c)(1) 
and 71.6(c)(1) impose an additional case-by-case monitoring review 
called ``sufficiency monitoring,'' that is independent from the 
requirement for ``periodic monitoring'' under Sec. Sec.  
70.6(a)(3)(i)(B) and 71.6(a)(3)(i)(B). Also, they believe that if EPA 
conducted such a review, the result would be a determination that the 
compliance requirements of title V and the NESHAP are not substantially 
equivalent.
    We disagree with this comment. As described more fully in section 
IV.A, even if ``sufficiency monitoring'' were required, additional 
monitoring requirements would not be imposed in title V permits for the 
area sources addressed by today's rule, because the NESHAP for them 
were all promulgated after the 1990 Clean Air Act amendments, and 
therefore contain all monitoring necessary to meet current requirements 
under the Act. In finalizing each of the NESHAP under part 63, EPA 
solicited and responded to comments on the adequacy of the monitoring, 
reporting, and recordkeeping provisions required by the NESHAP. Any 
opportunity to challenge the compliance requirements imposed through 
the five NESHAP has passed, and this rulemaking does not create new 
grounds for such challenges.

C. Does This Rulemaking Adequately Address Title V Costs?

    Several commenters thought the costs of title V permitting for 
these area sources described in the proposal, relevant to factors two 
and three, were inflated and not representative, and instead, that the 
true costs of title V permitting for them would be much lower and not 
significant for them. Also, these commenters stated that the costs for 
title V for area sources would be a fraction of the costs for major 
sources because area sources have fewer emissions units, their 
operations are less complex, and they are simpler to permit.
    In the discussion of factor two in section IV.A above, we described 
the information we used for the proposal, including economic 
information on the five industry groups (docket item 04) and 
information on title V burdens and costs from the ICRs for part 70 and 
71 (docket items 80 and 81), to evaluate the impact of title V on these 
categories of area sources, including limitations on this information, 
and the assumptions we made for them concerning title V burdens and 
costs. Also, in the proposal, we acknowledged that these sources would 
generally have fewer emissions units, that their operations are less 
complex, and they would be simpler to permit, and we took these facts 
into consideration in our analyses. During the public comment period, 
no one submitted any information related to the area source categories 
to substantiate their claims that title V burdens and costs would not 
be significant for these area sources. Our review of comments and 
further consideration of these issues has not led us to a contrary view 
from the proposal. Thus, we find that factor two supports title V 
exemptions for the categories of area sources addressed in today's 
final rule.
    Also relevant to factor two and three in the proposal, one 
commenter said that the EPA ignored Clean Air Act provisions designed 
to limit title V costs for small sources, while another commenter said 
States agencies are expected to have resources to meet this workload 
and fees to offset costs. Section 502(b)(3)(A) of the Act requires 
title V sources to pay annual fees, while section 507(f) of the Act, 
concerning SBAP, provides that the permitting authority may reduce any 
fee required under this Act to take into account the financial 
resources of small business stationary sources. In response, title V 
fees vary greatly from State to State, but because area sources have 
small emissions by definition and most State agencies charge emissions-
based fees (on a per ton basis), fees would not comprise a substantial 
portion of the overall costs and burdens for these area sources. As the 
EPA explained in the proposal, there are many other burdens and costs 
of title V, unrelated to fees, such that whether fees are reduced or 
not, significant burdens and cost of title V would remain for these 
area sources. Section 502(b)(3)(A) of the Act requires fees to be 
charged that are sufficient to cover all reasonable (direct and 
indirect) costs required to develop and administer the title V program. 
However, there are practical limitations on the ability of State 
agencies, tribes, and EPA to increase fees and provide additional 
resources for title V implementation, especially in a relatively short 
period of time. In many States, fee increases must typically be 
approved by the State legislature within the State budget process, and 
this may lead to significant delays in implementing new fee schedules 
to meet new demands. This limitation could lead to significant, albeit 
temporary, impairment of the title V programs for major sources, given 
the large workload a requirement to permit

[[Page 75337]]

these area sources would impose on State agencies. For example, if all 
these area sources were required to be permitted, up to 38,000 title V 
permit applications would be due by December 9, 2005, and title V 
permits for these sources would have to be issued or denied within 18 
months of receipt of the applications, as required by section 503(a) 
and 503(c) of the Act.
    Also relevant to factor two, one commenter pointed out that 
difficulties in obtaining compliance assistance from State agencies 
will be temporary. In response, EPA notes that even though such 
difficulties may be temporary, they would come at a critical time for 
sources and permitting authorities. For example, immediately upon 
becoming subject to title V, an area source which does not typically 
have employees trained in such matters, would need to quickly become 
familiar with the critical and pressing step of completing and 
submitting a permit application, required under Sec.  70.5 and Sec.  
71.5. Since such applications are provided by individual permitting 
agencies, access to the agency to obtain assistance and guidance on 
completing the forms will be essential for area sources in order for 
them to complete and submit them by the mandatory deadline, currently 
December 9, 2005, in most jurisdictions. See 64 FR 69637, December 14, 
1999, (setting the deadline of December 9, 2004 for deferrals to end). 
In addition, before applications are distributed to area sources, 
certain agencies may need to translate forms and other information into 
foreign languages, which in the EPA's experience, is often needed for 
small businesses, such as dry cleaners, in large urban communities, but 
not typically necessary for major sources. [For example, see a fact 
sheet developed for dry cleaners in Vietnamese, docket item 96 and the 
equivalent form in English, docket item 97.]
    Another commenter thinks the title V costs would not be significant 
for area sources because they would merely be passed on to consumers. 
In response, no economic data for these categories of area sources were 
submitted by the commenter or otherwise available to the EPA to support 
this point, and any such assertion is entirely speculative. Costs 
cannot necessarily be passed on to consumers in highly competitive 
industries, or where there are highly price-responsive consumers. EPA 
believes that these situations may exist for these sources, and that 
passing prices on to consumers may, therefore, not be feasible for 
them. The commenter provided no information on competition in these 
industries, or on price-responsiveness of their consumers to support 
his assertions.

D. What Is Our Analysis of Factor Four for the Final Rule?

    Commenters opposed to the EPA's reliance on the fourth factor in 
the proposal, whether adequate oversight could achieve high compliance 
with the NESHAP without title V, cited perceived flaws in the State 
survey (docket item 02), including that it does not contain 
representative data, that it has missing data, and that this missing 
data means that existing compliance with the NESHAP is not high. The 
proposal explained that information in the docket, including the State 
survey, shows that many permitting authorities have alternative 
compliance oversight programs that result in high NESHAP compliance 
without title V. During the public comment period, the EPA received 
comments from State and local agencies confirming this point. [See 
docket items 11, 16, 59, 61, and 65]. The EPA undertook the survey to 
collect information we thought would be relevant in our consideration 
of possible title V exemptions, and we believe State and local agencies 
made reasonable efforts to complete it. There is no definition for 
``high'' compliance in the Act or EPA regulations, nor did the EPA 
suggest one to State agencies. States are primarily responsible for 
enforcement of the vast majority of Act requirements, including NESHAP, 
through delegation of EPA responsibilities, approved State programs, 
the SIP process, and other mechanisms, and we give considerable weight 
to their judgement on questions concerning the compliance status of 
sources. Moreover, even without such input from States, the EPA would 
have reached the same conclusion regarding high compliance absent title 
V because NESHAP are based on section 112 of the Act, which imposes 
stringent compliance requirements, independent of title V, and because 
States and EPA have adequate authority and actual implementation and 
enforcement programs in place sufficient to assure compliance with 
NESHAP, independent of title V.
    Also concerning factor four of the proposal, one commenter said 
they believe Congressional intent was that these exemptions would only 
apply when a reasonable alternative to title V permitting is actually 
in place and achieving results, specifically citing the 1990 
legislative history that the EPA ``is authorized to exempt sources from 
the new permit program if the exemption would be consistent with the 
Act's purposes. For example, the EPA may exempt certain small but 
numerous sources from the requirement to obtain a permit if a 
reasonable alternative is developed.'' S. Rep. No. 101-228, at 349 
(1990). In response, the plain wording of the Senate Report is that it 
is an ``example'' of a justification for a title V exemption. Title V 
does not require EPA to develop such alternative programs as a 
prerequisite to granting exemptions. In any event, as described below, 
we believe there is existing authority in the Act and actual 
implementation and enforcement programs in place, as required under 
section 112, that are sufficient to assure compliance with these 
NESHAP, and thus, high compliance can be achieved with the NESHAP 
without title V in all jurisdictions where such sources may reside in 
the nation.
    First. Statutory programs of implementation and enforcement of 
NESHAP are conducted by EPA under the authority of sections 112, 113, 
and 114 of the Act, while State and local agencies or tribes may be 
granted delegation of this responsibility under section 112(l) of the 
Act (implemented through subpart E of part 63). The EPA has primary 
responsibility for implementation and enforcement of all NESHAP under 
section 112 of the Act in all parts of the nation. Section 112(l) 
allows EPA to delegate to State or local agencies or tribes certain of 
its implementation and enforcement duties for NESHAP, based on a State 
request to do so, and satisfaction of certain criteria. There are 
several types of delegations, including ``straight delegation,'' which 
is adoption of the NESHAP without change, or the delegate agency may 
establish a program or rules to operate in place of the NESHAP, 
provided the program or rules are ``no less stringent'' than the 
NESHAP, and the delegate agency has adequate authority and resources to 
implement and enforce the delegated NESHAP (under all delegation 
options). Section 63.91(d) defines criteria that State and local 
agencies or tribes are required to meet prior to approval of requests 
for any type of NESHAP delegation, including that the request contain: 
(1) Written findings from the Attorney General (or General Counsel for 
local agencies and tribes) that they have certain legal authorities 
concerning enforcement and compliance, (2) a copy of the State 
statutes, regulations, and requirements that grant authority for them 
to implement and enforce the NESHAP, (3) a demonstration that they have 
adequate resources to implement and enforce all aspects of their NESHAP 
program, except for authorities retained by EPA, and (4) a plan that 
assures expeditious

[[Page 75338]]

compliance by all sources subject to the program. Also, depending on 
the type of delegation requested, Sec. Sec.  63.92 through 63.95, and 
Sec.  63.97 specify additional approval criteria. [Also, see section 
112(l)(5), and the final rule for subpart E, 58 FR 62262, November 26, 
1993, amended by 65 FR 55810, September 14, 2000]. In addition, under 
section 112(l)(6) EPA has authority to withdraw its approval of a 
delegation, or approval of an equivalent program or rule, if the 
delegate agency is not adequately implementing or enforcing the NESHAP; 
and under section 112(l)(7) EPA may enforce any NESHAP, including those 
it has delegated. Thus, even if a State does not have adequate 
authority to implement and enforce any NESHAP in their jurisdiction, 
EPA does have such authority, consequently, there can be no gap in 
implementation and enforcement for NESHAP that apply to area sources in 
any jurisdiction. [For example, see EPA's final rule approving the 
request of Indiana for delegation of all NESHAP for all sources not 
covered by the State's part 70 program, 62 FR 36460, July 8, 1997, 
docket item 98.]
    Second. The EPA has general authority for enforcement of NESHAP 
under section 113, including authority to (1) issue an order requiring 
compliance or assessing an administrative penalty; (2) bring a civil 
action seeking to enjoin violations or the assessment of penalties; or 
(3) bring a criminal action to punish knowing violations. Section 114 
allows the EPA to determine if violations have occurred through 
inspection, auditing, monitoring, recordkeeping, reporting, and entry 
onto premises.
    Third. All States have established non-title V permitting programs, 
which may include operating and preconstruction permitting programs for 
minor sources, under section 110(a)(2)(C) of the Act. However, the EPA 
notes that several States have reported that their non-title V permits 
do not currently include NESHAP, so such permits would not always be 
immediately available for this purpose. Although some State agencies 
have established permitting programs under State law that include 
NESHAP for area sources, some have not, either because they do not have 
explicit State authority, or they have State authority, but they have 
chosen to not implement such a program so far. See the State survey 
(docket item 02), where States noted that they issue non-title V 
permits for certain of these area sources.
    Fourth. All States and EPA are required to establish a small 
business assistance program (SBAP) under section 507 of the Act. These 
programs are required to assist small business with technical and 
environmental compliance assistance, and they are not limited to title 
V sources. Any activities for non-title V sources conducted by a SBAP 
may be funded by non-title V fees at State option, and EPA matching 
grants under section 105 of the Act may also be used for this 
purpose.\8\ State SBAP programs are required by section 507 to provide 
information on compliance methods, to have a small business ombudsman, 
to provide assistance in determining applicable requirements and 
permitting requirements under the Act, and to refer sources to 
compliance auditors, or at State option, provide auditors for small 
sources. [For example, see docket item 91, a fact sheet concerning an 
SBAP implemented by a local air pollution control district.]
---------------------------------------------------------------------------

    \8\ For more on the use of matching grants, see a August 4, 1993 
memorandum from John S. Seitz, Director, Office of Air Quality 
Planning and Standards, U.S. EPA, ``Reissuance of Guidance on Agency 
Review of State Fee Schedules for Operating Permit Programs under 
Title V,'' and a July 21, 1994 memorandum from Mary D Nichols, 
Assistant Administrator for Air and Radiation, U.S. EPA, 
``Transition to Funding Portions of State and Local Air Programs 
with Permit Fees Rather than Federal Grants.''
---------------------------------------------------------------------------

    Finally. States may have voluntary compliance assistance programs 
in place for NESHAP requirements, such as the environmental results 
programs (ERP) or other similar programs. The EPA has encouraged States 
to adopt voluntary programs in the past, and the ERP, in particular, 
has been successful in assisting small sources with compliance in 
fourteen States across nine business-dominated sectors, including dry 
cleaners in Massachusetts and Michigan. See 70 FR 15260. In addition to 
the State survey, which includes information concerning State 
permitting programs, inspection, and compliance assistance programs, 
several permitting agencies submitted comments to describe their 
alternative programs for non-title V sources in additional detail. [See 
State and local comments, docket items 11, 16, 59, 61, and 65.] 
Importantly, no comments were received from State agencies saying that 
they would not be able to ensure compliance for these area sources if 
we promulgate title V exemptions for them.

E. Are These Exemptions Consistent With the Legislative History of The 
Act?

    Several commenters expressed concern that exemptions from title V 
would adversely affect public health, welfare, or the environment by 
weakening air quality standards, increasing HAP emissions, and by 
increasing morbidity in human populations, and that this would be 
inconsistent with the legislative history of section 502(a).
    In response, section 112 of the Act, which authorizes NESHAP, is 
the primary vehicle under the Act for HAP reduction, not title V. See 
sections 112(b)(2), 112(c)(3), 112(d), 112(f), and 112(k) of the Act. 
For an overview of the EPA's national effort to regulate air toxics 
under section 112, see a July 19, 1999 notice (64 FR 38705), which 
includes a description of the EPA's integrated urban air toxics 
strategy, a strategy to address public health risks posed by air toxics 
from the large number of smaller area sources in urban areas. Today's 
rulemaking is not exempting any area sources from any section 112 
requirements, such as those described in the July 19 notice, and 
section 112 gives the EPA, or its delegate agency, responsibility to 
implement and enforce section 112 standards, independent of title V. 
Thus, consistent with the legislative history and the EPA's analysis 
for each category of area sources addressed in this rulemaking, title V 
exemptions for these particular area sources will not thwart or in any 
way interfere with the implementation and enforcement of section 112 of 
the Act, and today's action should not adversely affect public health.
    The EPA does not believe HAP increases will occur from title V 
exemptions for these area sources. The Act does not require emission 
reductions through title V permits. As we explained in the proposal (70 
FR 15255), the EPA's outreach in recent years has shown that several 
State agencies believe, in their experience, implementing emissions 
standards for area sources through permits did not result in increased 
compliance with the emissions standards. EPA has evaluated the extent 
to which title V could improve compliance for these NESHAP, and EPA 
believes that successful implementation at such sources is better 
achieved through compliance assistance efforts, such as compliance 
outreach and education programs, rather than title V permits.
    One commenter asserted that title V permitting will not divert 
resources from more significant sources because the Act requires State 
and local agencies to charge adequate fees to cover the costs of the 
title V program, including the costs of small business assistance 
programs under section 507 of the Act, and adequate personnel to 
administer the program, and because fees may be reduced for small 
sources. This commenter apparently was taking issue with EPA's 
statement in the proposal

[[Page 75339]]

that ``requiring permitting of area sources will likely cause, at least 
in the first few years of implementation, permitting authorities to 
shift resources away from assuring compliance for major sources with 
existing permits to issuing new permits for area sources. This has the 
potential, at least temporarily, to reduce the overall effectiveness of 
the States' title V permit programs, which could potentially adversely 
affect public health, welfare, or the environment.'' In response, EPA 
notes that there are practical limitations on the ability of State 
agencies, tribes, and EPA to increase fees and provide additional 
resources for title V implementation, especially in a relatively short 
period of time. As we described in the proposal (70 FR 15255), in many 
States, fee increases must typically be approved by the State 
legislature within the State budget process, and this may lead to 
significant delays in implementing new fee schedules to meet new title 
V demands. This limitation could lead to significant, albeit temporary, 
impairment of the title V program for major sources, given the large 
workload a requirement to permit these area sources would impose on 
State agencies. For example, if all these area sources were required to 
be permitted, up to 38,000 title V permit applications would be due by 
December 9, 2005, and title V permits for these sources would have to 
be issued or denied within 18 months of receipt of the applications, as 
required by section 503(a) and 503(c) of the Act.

F. Is It Reasonable for EPA To Rely on the Information Cited in Support 
of the Proposal?

    Several commenters complained about the information EPA collected 
to support the findings of the proposal, particularly the State survey, 
concluding that it was so flawed that the findings are arbitrary and 
capricious under the APA or otherwise inconsistent with administrative 
rulemaking requirements. We disagree. In developing the proposal, EPA 
sought and relied on information from State agencies on the level of 
oversight and compliance rates for the area sources addressed in 
today's proposal. The results are summarized for each category of area 
sources in the State survey (docket item 02). The EPA also sought input 
from State small business ombudsmen and several trade associations, and 
they responded with information on the area sources and compliance 
assistance programs currently available to them. This information is 
also in the docket. See docket items 03, 06, and 08.
    We have collected information we believe is useful and appropriate 
under the statute to establish a rational basis for evaluating whether 
the area sources addressed in today's rule satisfy the exemption 
criteria of section 502(a) of the Act. We summarized our outreach 
efforts and we collected cost and economic data, which we placed in the 
docket prior to the proposal. We considered all information available 
to us for this rulemaking, including that submitted during the public 
comment period, in making our exemption findings. Also see section X 
below for additional discussion of how this rulemaking satisfies 
administrative rulemaking requirements.
    As to comments that the State survey is not complete, we believe 
much of the missing information can be explained by two factors: (1) 
State agency participation was voluntary, and (2) some States have more 
or less of these area sources, so experience with them varies. We did 
not base our decisions on missing data but on the data we have and our 
judgement as air quality experts, and we did not assume any particular 
meaning for missing data. Commenters had an opportunity to submit what 
they consider to be more complete or accurate information on compliance 
rates and the oversight activities of State agencies for these area 
sources during the comment period, but they did not do so.
    Also, concerning information on burdens and costs of title V, for 
the current ICR, we provided the public with our draft analysis of 
burdens and costs under title V, including for general permits, and we 
received no comments.

G. Are Permits Necessary To Define Monitoring for Chrome 
Electroplaters?

    One commenter stated that the monitoring requirements of the chrome 
electroplating NESHAP vary based on the type of control technique 
employed and the range of acceptable values, or a minimum and maximum, 
for each monitoring parameter at each area source, and that it would be 
useful for the public, regulatory agencies, and the source for its 
specific obligations to be spelled out in a permit.
    The chrome electroplating NESHAP has extensive requirements for 
monitoring, recordkeeping, and reporting, including for monitoring 
system performance tests, and a written report to document the results 
of the performance test, which will document the monitoring techniques 
employed and the parameter ranges that show compliance. The NESHAP 
requires the source to conduct the performance tests needed to define 
the monitoring parameters that assure compliance by the source with its 
emissions limitations or standards, and this report is submitted to EPA 
or a delegate agency with such responsibilities, as defined at Sec.  
63.347(f), so neither the source or the regulatory agency will be 
confused about the specific monitoring that applies to area sources, 
absent a title V permit. Also, there is independent authority for 
public disclosure of information related to compliance with NESHAP 
under section 114(c) of the Act, which does not rely on title V for 
implementation. Public disclosure authority under section 114(c) of the 
Act extends to all information collected under NESHAP, even information 
required to be kept on-site, rather than submitted directly, except for 
trade secrets which may not be released to the public. Thus, if a 
member of the public wants information on compliance with the NESHAP, 
he or she may get it from the agency responsible for implementation and 
enforcement of the NESHAP (either EPA, or the State or local agency, or 
tribe), whether there is a title V permit or not. In addition, State or 
local agencies, or tribes, are required to submit, as part of their 
delegation request, a written finding by the State Attorney General (or 
General Counsel for local agencies and tribes) that the State has legal 
authority ``to request information from regulated sources regarding 
their compliance status,'' under Sec.  63.91(d)(3)(i)(B), and legal 
authority ``to inspect sources and any records required to determine a 
source's compliance status,'' under Sec.  63.91(d)(3)(i)(C). Therefore, 
title V is not necessary for State and local authorities to obtain 
compliance information from regulated sources. While it is helpful for 
the public, regulatory agencies, and the source for the specific 
requirements to be defined in a permit, we do not believe it is 
necessary for adequate compliance to occur, and we believe we have 
shown in today's final rule that title V would be unnecessarily 
burdensome on these area sources.

H. May Degreasers Be Exempted When There Are Multiple Applicable 
Requirements?

    One commenter supports an exemption for degreasers, but only when 
they are not subject to other applicable requirements. They think the 
compliance requirements of the NESHAP will be substantially equivalent 
to title V only when the source is subject to only this NESHAP and the 
source is not subject to other NESHAP. In response, the EPA does not 
agree with this comment for the

[[Page 75340]]

following reasons. First, there are cases where more than one NESHAP 
for which a title V exemption is being finalized applies to degreasers, 
for example, where a degreaser is located at a chrome electroplater. 
But the requirements of the chrome electroplating and degreasing NESHAP 
do not significantly overlap for the emission units at such facilities, 
so this would not present a significant problem of complexity that 
would justify the burdens associated with issuing title V permits for 
such sources. Second, such concerns are largely offset by the relative 
simplicity of the emission control requirements of the degreaser 
NESHAP, which involves primarily work practice standards. For example, 
lids are required to be kept on containers at all times when not in 
use. However, EPA notes that where a degreaser is otherwise subject to 
title V, it will not be exempt from permitting. Thus, because 
degreasers are often collocated with major sources, as an adjunct to 
the primary activity occurring at the major source, many degreasers 
will be included in the major source permit for the collocated major 
source. This is so because, as we have clarified elsewhere in this 
preamble, major source permits must include all applicable 
requirements, and these exemptions are only for title V requirements at 
area sources.

I. Are the Compliance Requirements of the EO Sterilizer and Secondary 
Aluminum NESHAP Substantially Equivalent to Title V?

    One commenter opined that the compliance requirements of the EO 
sterilizer and secondary aluminum NESHAP are not substantially 
equivalent to the compliance requirements of title V with respect to 
our analysis of factor one for area sources subject to these NESHAP 
because the EPA has no data to show how many sources employ continuous 
monitoring methods, and even if continuous methods are used, the 
reporting is not equivalent to title V reporting. Also, the commenter 
pointed out that the EO sterilizer and secondary aluminum NESHAP do not 
require an annual compliance certification (as does title V), and that 
this is another reason why the compliance requirements of the NESHAP 
and title V are not substantially equivalent as EPA proposed. Also, 
responding to a specific request of the proposal for input on the value 
of annual compliance certifications and the threat of enforcement for 
false certification for area sources subject to these NESHAP, the 
commenter said that completing a compliance certification will be 
important in bringing about better compliance because the act of 
signing one is not taken lightly and will produce positive results, 
including greater compliance efforts, and the submittal of more 
compliance plans.
    In the proposal, we compared the compliance requirements of the EO 
sterilizer and secondary aluminum NESHAP with those of title V, and we 
stated for both that the recordkeeping and reporting requirements are 
substantially equivalent (the first factor), when sources employ 
continuous monitoring methods to assure proper operation and 
maintenance of control equipment, such as when sources use thermal 
oxidizers for emission controls. Also, we said that sources that use 
scrubbers as emission controls under both of these NESHAP employ 
noncontinuous monitoring methods, and thus, the recordkeeping and 
reporting requirements for them would not be substantially equivalent 
to the compliance requirements of title V. Although we were not certain 
of the number of area sources that employ continuous monitoring methods 
under either of the two NESHAP, we stated a belief that most sources 
would employ such methods, and we asked for comment on the percentage 
of sources that employ them. See the March 25, 2005 proposal's 
discussion of EO sterilizers (70 FR 15256) and secondary aluminum (70 
FR 15258).
    For the final rule, we reviewed the EO sterilizer and secondary 
aluminum NESHAP once again, and we now conclude that sources with 
scrubbers are required to conduct ``continuous'' monitoring under the 
NESHAP. Also, both of these NESHAP require sources that conduct 
``continuous'' monitoring to submit excess emissions and continuous 
monitoring system performance report and summary reports to assess 
their compliance status on a semiannual basis, consistent with Sec.  
63.10(e)(3). These NESHAP require these reports for sources that use 
scrubbers for emissions controls, the same as they require them for 
sources that use thermal oxidizers as emissions controls. Under the two 
NESHAP, these reports provides compliance information that is 
substantially equivalent to the requirements of Sec. Sec.  
70.6(a)(3)(iii) and 71.6(a)(3)(iii) for deviation reports and six-month 
monitoring reports (see explanation below). [Also, see discussion of 
factor one for these area sources in sections IV.A, IV.E and IV.F, and 
more on why title V monitoring and the monitoring in these NESHAP are 
equivalent in section VIII.E.]
    The compliance information already required to be reported by these 
two NESHAP is substantial, and similar to that required in annual 
compliance certifications under title V [see Sec. Sec.  70.6(c)(5) and 
71.6(c)(5)]. Also, the compliance reports required by the two NESHAP 
require certification by a responsible official, which is defined 
similarly in the two programs [see Sec.  63.2, and Sec. Sec.  70.2 and 
71.2]. For these reasons, we conclude that the lack of an annual 
compliance certification report under title V will not have a 
significant impact on compliance for these NESHAP.
    Also, in response to the comment that the act of signing the 
compliance certifications is valuable because it produces positive 
compliance results and that these results will be lost if we exempt 
these area sources from title V, we disagree that the title V 
exemptions will have this effect for these NESHAP. We conclude this in 
today's final rule because the EO sterilizer and secondary aluminum 
NESHAP both require the excess emissions and continuous monitoring 
system performance report and summary reports (described above) to be 
certified by a responsible official, similar to how this is done for 
title V. [See the requirements for certification by responsible 
official of Sec.  63.363(a)(3) for EO sterilizers and Sec.  
63.10(e)(3)(v) for secondary aluminum.]
    In the final rule, we conclude that the overall differences in 
compliance requirements, after considering all monitoring, 
recordkeeping, and reporting requirements, including the lack of annual 
compliance certification, are not great enough to have a significant 
impact on compliance for the EO sterilizer and secondary aluminum 
NESHAP, and we conclude that the compliance requirements of the NESHAP 
and title V rules are substantially equivalent. Thus, our analysis of 
factor one for the final rule is that it supports a finding that title 
V is ``unnecessary'' for compliance for area sources subject to the EO 
sterilizer and secondary aluminum NESHAP, consistent with the 
``unnecessarily burdensome'' criterion of section 502(a) of the Act.

J. Are the Proposed Revisions to EO Sterilizer NESHAP Appropriate?

    Several commenters were concerned that the proposed revision to 
Sec.  63.360(f) would redefine what an ``area source'' is under the EO 
sterilizer NESHAP, resulting in fewer area sources. Also, they stated 
that the proposed rule change is inconsistent with the definition of 
``major source'' and ``area source'' in section 112 of the Act, and

[[Page 75341]]

that it contradicts the proposed wording of Table 1 of Sec.  63.360, 
which exempts ``area sources'' regardless of EO usage. Another 
commenter recommended that the rule language be revised to be 
consistent with parallel rule language for other subparts, which refers 
to ``area sources.''
    In the final rule, Sec.  63.360(f) has been revised to specify that 
exemptions from title V are for ``area sources,'' rather than ``sources 
using less than 10 tons [of EO],'' as we proposed. The intent of the 
proposal was to exempt area sources subject to the NESHAP from title V, 
not to change the applicability of the NESHAP. The EPA's March 2004 
implementation guidance for this NESHAP (docket item 88) is clear that 
the definition of ``area source'' is the definition of Sec.  63.2, 
which is based on actual emissions or potential to emit, and this 
definition should be used for title V purposes under the NESHAP.\9\ 
Also, the guidance explains that usage of EO is the basis for 
applicability of the emission standards for various types of vents, 
under the NESHAP. Nevertheless, we are changing the rule language today 
to clarify that ``area sources'' subject to this standard are exempted 
from title V, and this change will not affect the NESHAP requirements 
that apply to any existing sources. With this change, Sec.  63.360(f) 
is now also consistent with Table 1 of Sec.  63.360, in the same 
subpart, and with the rule language of subparts M, N, T and RRR, that 
also refers to ``area sources.''
---------------------------------------------------------------------------

    \9\ U.S. EPA, Office of Air Quality Planning and Standards, EPA-
456/R-97-004, September 1997 (Updated March 2004), Ethylene Oxide 
Commercial Sterilization and Fumigation Operations NESHAP 
Implementation Document.
---------------------------------------------------------------------------

K. Are Title V Permits Allowed for Area Sources Exempted From Title V?

    Several commenters disagreed with the EPA's proposed approach of 
not allowing permitting authorities to issue title V permits to area 
sources that EPA has exempted from title V. These commenters did not 
agree with EPA's proposed reading of section 502(a), 506(a), and 116 of 
the Act as requiring this result. Also, they did not agree that 
existing title V permits for such sources should be terminated, 
suspended, or revoked after exemptions from title V take effect.
    Several commenters opined that EPA's proposed approach is 
inconsistent with section 502(a) of the Act. The proposal explains that 
section 502(a) of the Act grants the Administrator alone discretion to 
define the universe of area sources subject to title V. It follows that 
once the EPA exempts area sources through rulemaking, they may not be 
permitted under title V. No other provision of the Act is more specific 
on this matter than section 502(a). Similarly, an existing title V 
permit for an area source that has been exempted from title V must be 
revoked, terminated, or denied because the permit would conflict with 
our interpretation of section 502(a) of the Act. We also believe 
allowing title V permitting for area sources we have exempted would be 
an obstacle to the implementation of title V both because of the 
confusion and frustration such a situation would cause for the area 
sources, based on the common sense meaning of the term ``exemption,'' 
and because State efforts at title V permitting would be better spent 
addressing major sources and non-exempt area sources.
    Several commenters were concerned that EPA's interpretation of 
section 502(a) of the Act is illegal because it conflicts with section 
506(a), which allows States to have ``additional permitting 
requirements not inconsistent with this chapter.'' In light of the 
structure of section 502(a), EPA believes that section 506(a) is best 
read as allowing States to establish additional permitting requirements 
for sources that are already subject to title V permitting. Thus, under 
the EPA's interpretation, there is no conflict between the two sections 
because section 502(a) of the Act defines what sources must get a 
permit, while section 506(a) of the Act allows States flexibility in 
establishing permit requirements for sources properly subject to the 
program.
    Several commenters stated that EPA's proposed reading of section 
502(a) is illegal because it conflicts with section 116, which allows 
States to issue title V permits to exempted area sources. We explained 
in the proposal that section 116 of the Act allows State agencies to 
issue non-title V permits to area sources that have been exempted from, 
or are outside the scope of, the title V program. However, even if the 
Act were ambiguous in this regard, EPA would exercise its discretion in 
interpreting the Act to reach the same result. The EPA would do so to 
avoid confusion for area sources, as described above, and to achieve 
the policy benefits associated with having States direct their title V 
efforts to major sources and non-exempt area sources.

L. Does This Rulemaking Disregard Cost Estimates for General Permits?

    Several commenters were concerned that we disregarded prior 
estimates of title V costs for general permits and they believe that 
these estimates show that title V costs would be sufficiently low that 
title V would not be ``unnecessarily burdensome'' for the area sources 
addressed in the proposal.
    In the discussion of burdens and cost of title V permitting in the 
proposal (section II.A of the proposal), we stated that we did not have 
specific estimates for the burdens and costs associated with general 
permits for sources, but we described certain source activities 
associated with the part 70 and 71 rules that would apply to sources, 
whether they have a general or standard permit. Also, in section III of 
the proposal we said that general permits would reduce burdens to some 
extent for area sources but that the potential burden and cost 
reductions would not be sufficient to alter our findings that title V 
would be significant for area sources. To explain this last point in 
more detail in the proposal, we reviewed each of the four factors we 
used in our exemption analysis with respect to general permits, and we 
concluded that title V will be ``unnecessarily burdensome'' for area 
sources that are issued general permits, rather than standard permits. 
(See 70 FR 15254 and 15258-15259.)
    One commenter pointed to a regulatory impact analysis (RIA) for 
operating permits issued in 1992, saying we should have used the 
estimate of $154 per year in that document in analyzing the costs 
associated with general permits. In response, the RIA (Regulatory 
Impact Analyses and Regulatory Flexibility Act Screening for Operating 
Permits Regulations, U.S. EPA, Office of Air Quality Planning and 
Standards, EPA-450/2-91-011, June 1992) did contain an estimate of $154 
for the total annual costs for general permits, but it is inaccurate 
and outdated because it was not based on actual implementation 
experience, such as the cost estimates contained in the more recent 
2004 ICR, which is based on actual implementation experience, and which 
suggests significantly higher costs for general permits, on the order 
of half the cost of standard permits (see more on the 2004 ICR below). 
The part 70 rule was not effective until July 21, 1992, and 
consequently, no State title V programs were approved until December of 
1994, and no part 70 permits were issued in any jurisdiction until late 
1996. [Also, the part 71 rule was not effective until July 31, 1996].
    One commenter said we disregarded information in the current ICR 
for part 70 (issued in 2004), including ``re-application of general 
permits'' at 2 burden hours for each title V source with a general 
permit, compared to the estimate of ``permit renewal'' at 200 burden 
hours for each title V source with a standard permit, which they 
believe shows that title V costs for area

[[Page 75342]]

sources with general permits would not be significant (thus, not 
``burdensome'' for them). In response, it was an oversight for us to 
refer in the proposal to cost estimates in the 2000 ICR for part 70, 
when an updated one, the 2004 ICR, was available; however, the 2004 ICR 
does not support the commenter's claim that title V costs would not be 
significant for these area sources. We referenced the 2000 ICR in our 
proposal as indicating an average title V cost of $7,700 per source per 
year, and noted that there were no specific estimates for general 
permits. Similarly, the 2004 ICR indicates an average title V cost of 
$7,300 per source per year, and, although it contains specific 
estimates of title V costs for certain activities required for sources 
with general permits, it does not provide specific estimates of title V 
costs for all activities that would occur for such sources. For 
example, the 2004 ICR lists twelve different activities that title V 
sources would experience (see table 2, average source burden by 
activity, page 16). The ICR lists all activities that may apply to a 
typical source, not all that will necessarily apply to every source. 
For example, there are burden hour estimates for three different types 
of permit revisions, but not all sources may need any of these permit 
revisions in any given year. The commenter is correct that the activity 
of ``re-application of general permits'' at 2 burden hours per year 
would only apply to sources with general permits, and that another 
activity, ``permit renewal'' at 200 burden hours per year, would only 
apply to sources with standard permits. Both of these activities 
reflect the requirements of title V for sources to prepare permit 
applications for permit renewals, which for general permits, may be 
streamlined, compared to standard permits. [See Sec.  70.6(d)(2), which 
allows applications for general permits, including permit renewal 
applications, to ``deviate from the requirements of Sec.  70.5,'' which 
applies for standard permits.] However, title V sources are subject to 
many other activities the commenter did not acknowledge. For example, 
another activity listed in the table, ``prepare monitoring reports'' at 
80 hours per source per year, would apply to sources with general 
permits and standard permits. [See the assumption section of the ICR 
(page 36), which specifies that ``[a]ll sources with issued permits 
(including those covered by general permits) will report monitoring 
data semi-annually and compliance certifications annually.''] Also, the 
2004 ICR is silent with respect to whether the remaining activities in 
the table would be required of sources with general permits, but many 
of them would apply to such sources because Sec.  70.6(d) requires 
general permits to ``comply with all requirements applicable to other 
part 70 permits.'' Certain of these remaining activities may be 
streamlined or simplified for sources with general permits, compared to 
sources with standard permits, but the ICR does not provide different 
burden hour estimates to acknowledge these differences. For example, 
sources with general permits would have to prepare an initial permit 
application when they apply for coverage under the general permit, 
consistent with Sec.  70.6(d)(2), but the ICR lists the activity of 
``prepare application'' at 300 hours per source per year, without 
estimating the potential reduction in burdens and costs that may occur 
through streamlined permit applications for general permits. Although 
the information in the 2004 ICR is more detailed, our analysis for the 
final rule results in the same conclusion as our review of the 2000 ICR 
for the proposal: That title V costs would be somewhat lower for 
sources with general permits, compared to sources with standard 
permits. Thus, the view of the commenter that title V costs would not 
be significant for area sources with general permits is not supported 
by the 2004 ICR.
    Another commenter criticized our reference in the proposal of the 
$7,700 average cost estimate for title V sources, taken from the 2000 
ICR, because that value reflects an average from among all sources, 
including the biggest industrial facilities in the country, and the 
costs to a smaller source obtaining either an individual or general 
permit should be less. In response, EPA agrees that costs for area 
sources are likely to be lower than the average cost of issuing all 
title V permits to all sources, for the reasons indicated by the 
commenter. EPA referenced the average cost of title V for all sources 
in the proposal because the cost estimates of the ICRs are the best 
estimates of title V costs available, even though they suffer from the 
limitations noted by the commenter. EPA's assessment of costs and 
burdens of title V for area sources covered by today's rule assumed 
that costs would be lower than the average for all sources, but still 
significant in light of the characteristics of the area sources. The 
2004 ICR estimates average annual title V costs for all sources at 
$7,300, and it also does not provide all the information one would need 
to determine specific costs for area sources, whether they have general 
or standard permits.
    Each ICR developed by EPA is based on the best information 
available to the Agency at the time it is prepared, such that more 
realistic estimates of burdens and costs for title V sources in general 
would be found in more recent ICRs, as implementation experience is 
gained. In addition, each ICR is approved by OMB for a set period of 
time in the future (typically three years), until the next ICR is 
approved, or the current ICR is extended.
    EPA relied to some extent on the information in the ICRs for this 
rulemaking because it is the best information available on title V 
burdens and costs and no one submitted any better information to 
analyze title V burdens and costs for these area sources. EPA has 
conducted outreach and provided a 60-day public comment period to 
collect information on the costs and burdens for these sources for this 
rulemaking, and we provided a similar opportunity for the current ICR. 
No one submitted, or cited to, any more accurate and complete cost 
estimates for general permits under title V than those available to 
EPA. See the notice of March 23, 2004 (69 FR 13524) soliciting comment 
on the current ICR (Attachment 1 of the current ICR).

IX. Effective Date of Today's Final Rule Under the Administrative 
Procedure Act

    Section 553(d) of the Administrative Procedure Act (APA) generally 
provides that rules may not take effect earlier than 30 days after they 
are published in the Federal Register. However, section 553(d)(1) of 
the APA, provides that a substantive rule which grants or recognizes an 
exemption or relieves a restriction, may take effect earlier. Today's 
final rule grants an exemption from title V permitting requirements for 
a large number of area sources, so we make this final rule effective 
immediately.

X. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), we must 
determine whether a regulatory action is ``significant'' and therefore 
subject to Office of Management and Budget (OMB) review and the 
requirements of the Executive Order. The Order defines a ``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, 
adversely affecting in a material way the economy, a sector of the 
economy,

[[Page 75343]]

productivity, competition, jobs, the environment, public health or 
safety in 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 entitlement, grants, 
user fees, or loan programs of 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.
    Under Executive Order 12866, it has been determined that this rule 
is a ``significant regulatory action'' because it raises important 
legal and policy issues. As such, this rule was submitted to OMB for 
review. Because this rule exempts area sources that would be subject to 
title V requirements absent this final rule, this final rule reduces 
burdens on area sources, and thus it is not economically significant. 
Also, area sources subject to the secondary lead NESHAP are already 
subject to title V (since their earlier deferral has expired) and this 
final rule does not change this, so this final rule does not change 
burdens for them. The final rule does not impose any burdens and 
therefore a detailed economic analysis is unnecessary.

B. Paperwork Reduction Act

    This action does not impose any new information collection burden. 
Instead, it reduces such burdens by exempting a large number of area 
sources from title V requirements. However, the information collection 
requirements in the existing regulations (parts 70 and 71) were 
previously approved by OMB under the requirements of the Paperwork 
Reduction Act, 44 U.S.C. 3501 et seq. The existing ICR for part 70 is 
assigned EPA ICR number 1587.06 and OMB control number 2060-0243; for 
part 71, the EPA ICR number is 1713.05 and the OMB control number is 
2060-0336. A copy of the OMB approved Information Collection Request 
(ICR) may be obtained from Susan Auby, Collection Strategies Division; 
U.S. Environmental Protection Agency (2822T); 1200 Pennsylvania Ave., 
NW., Washington, DC 20004 or by calling (202) 566-1672. 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 in 40 CFR are listed in 
40 CFR part 9.

C. Regulatory Flexibility Act (RFA)

    The RFA generally requires an Agency to conduct a regulatory 
flexibility analysis of any rule subject to notice and comment 
requirements 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 not-for-profit 
enterprises, and small governmental jurisdictions.
    For purposes of assessing the impacts of today's rule on small 
entities, small entity is defined as: (1) A small business that meets 
the Small Business Administration size standards for small businesses 
found in 13 CFR 121.201; (2) a small governmental jurisdiction that is 
a government of a city, country, 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 final rule on 
small entities, I certify 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 rule on small entities.'' 5 U.S.C. 603 and 604. 
Thus, an agency may certify 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.
    This rule reduces economic impacts on small entities by exempting 
certain categories of ``non-major'' industrial sources from the 
permitting requirements under title V of the Clean Air Act (Act). These 
sources tend to be smaller businesses and there are estimated at up to 
38,000 small entities. They are currently subject to title V permitting 
(40 CFR parts 70 and 71) under previous rulemaking actions, and they 
will remain subject to these requirements until we exempt them. We have 
therefore concluded that today's final rule will relieve regulatory 
burden for these affected small entities.

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, 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 to State, local, and tribal governments, in 
the aggregate, or to the private sector, of $100 million or more in any 
one year. Before promulgating a rule for which a written statement is 
needed, section 205 of the UMRA generally requires 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 where they are inconsistent with applicable law. Moreover, 
section 205 allows 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 EPA establishes any regulatory 
requirements that may significantly or uniquely affect small 
governments, including tribal governments, EPA must have developed 
under section 203 of the UMRA a small government agency plan. The plan 
must provide for notifying potentially affected small governments, 
enabling officials of affected small governments to have meaningful and 
timely input in the development of our regulatory proposals with 
significant federal intergovernmental mandates, and informing, 
educating, and advising small governments on compliance with the 
regulatory requirements.
    Today's rule contains no federal mandates under the regulatory 
provisions of title II of the UMRA for

[[Page 75344]]

State, local, or tribal governments or the private sector. Today's 
final rule imposes no enforceable duty on any State, local or tribal 
governments or the private sector. This final rule exempts a large 
number of sources from title V operating permit programs, which will 
reduce the duties government entities with title V programs would be 
required to perform and it will remove the requirement for many private 
sector entities to obtain operating permits under title V programs. 
Therefore, today's action is not subject to the requirements of 
sections 202 and 205 of the UMRA.
    In addition, EPA has determined that this final rule contains no 
regulatory requirements that might significantly or uniquely affect 
small governments. This final rule exempts a large number of area 
sources from the requirement to obtain operating permits under title V. 
As such it also removes the requirements for small governments with 
approved operating permit programs to issue permits to those area 
sources. Therefore, today's final rule is not subject to the 
requirements of section 203 of the UMRA.

E. Executive Order 13132: Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires 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, or on the distribution of power and 
responsibilities among the various levels of government.''
    This final rule does not have federalism implications. It will not 
have substantial direct effects on the States, on the relationship 
between the national government and the States, or on the distribution 
of power and responsibilities among the various levels of government, 
as specified in Executive Order 13132. Today's rule will not impose any 
new requirements under title V of the Clean Air Act, and it will not 
affect the ability of States to issue non-title V permits to these area 
sources, if they so choose. Accordingly, it will not substantially 
alter the overall relationship or distribution of powers between 
governments for the part 70 and part 71 operating permits programs. 
Thus, Executive Order 13132 does not apply to this final rule.

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

    Executive Order 13175, ``Consultation and Coordination with Indian 
Tribal Governments (65 FR 67249, November 6, 2000), requires EPA to 
develop an accountable process to ensure ``meaningful and timely input 
by tribal officials in the development of regulatory policies that have 
tribal implications.'' ``Policies that have tribal implications'' is 
defined in the Executive Order to include regulations that have 
``substantial direct effects on one or more Indian tribes, on the 
relationship between the federal government and the Indian tribes, or 
on the distribution of power and responsibilities between the federal 
government and Indian tribes.''
    This final rule does not have tribal implications because it will 
not have a substantial direct effect on one or more Indian tribes, 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. 
Today's action does not significantly or uniquely affect the 
communities of Indian tribal governments. As discussed above, today's 
action imposes no new requirements on Indian tribal governments under 
title V of the Clean Air Act. Accordingly, the requirements of 
Executive Order 13175 do not apply to this rule.

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

    Executive Order 13045, ``Protection of Children from Environmental 
Health Risks and Safety Risks'' (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 EPA has reason to believe may 
have a disproportionate effect on children. If the regulatory action 
meets both criteria, the Agency 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 Agency.
    This final rule is not subject to the Executive Order because it is 
not economically significant as defined in Executive Order 12866 and 
because the Agency does not have reason to believe the environmental 
health or safety risks addressed by this action present a 
disproportionate risk to children.

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

    This final rule is not a ``significant energy action,'' as defined 
in Executive Order 13211, ``Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use'' (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. This 
final rule exempts a large number of small sources from the obligation 
to obtain an operating permit under title V of the Clean Air Act and is 
not likely to have any adverse energy effects.

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, Section 12(d) (15 U.S.C. 
272 note), directs EPA to use voluntary consensus standards in its 
regulatory activities unless to do so would be inconsistent with 
applicable law or otherwise impractical. Voluntary consensus standards 
are technical standards (e.g., materials specifications, test methods, 
sampling procedures, and business practices) that are developed or 
adopted by voluntary consensus standards bodies. The NTTAA directs EPA 
to provide Congress, through OMB, explanations when the Agency decides 
not to use available and applicable voluntary consensus standards.
    The NTTAA does not apply to this final rule because it does not 
involve technical standards. Therefore, EPA did not consider the use of 
any voluntary consensus standards.

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. We 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

[[Page 75345]]

defined by 5 U.S.C. Sec.  804(2). This rule will be effective December 
19, 2005.

List of Subjects

40 CFR Part 63

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

40 CFR Part 70

    Administrative practice and procedure, Air pollution control, 
Intergovernmental relations, Reporting and recordkeeping requirements.

40 CFR Part 71

    Administrative practice and procedure, Air pollution control, 
Reporting and recordkeeping requirements.

    Dated: December 9, 2005.
Stephen L. Johnson,
Administrator.

0
For the reasons set out in the preamble, title 40, chapter I of the 
Code of Federal Regulations is amended as set forth below.

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 M--[Amended]

0
2. Section 63.320 is amended by revising paragraph (k) to read as 
follows:


Sec.  63.320  Applicability.

* * * * *
    (k) If you are an owner or operator of an area source subject to 
this subpart, you are exempt from the obligation to obtain a permit 
under 40 CFR part 70 or 71, provided you are not required to obtain a 
permit under 40 CFR 70.3(a) or 71.3(a) for a reason other than your 
status as an area source under this subpart. Notwithstanding the 
previous sentence, you must continue to comply with the provisions of 
this subpart applicable to area sources.

Subpart N--[Amended]

0
3. Section 63.340 is amended by revising paragraph (e) to read as 
follows:


Sec.  63.340  Applicability and designation of source.

* * * * *
    (e) If you are an owner or operator of an area source subject to 
this subpart, you are exempt from the obligation to obtain a permit 
under 40 CFR part 70 or 71, provided you are not required to obtain a 
permit under 40 CFR 70.3(a) or 71.3(a) for a reason other than your 
status as an area source under this subpart. Notwithstanding the 
previous sentence, you must continue to comply with the provisions of 
this subpart applicable to area sources.

0
4. Table 1 to Subpart N is amended by revising the entry for Sec.  
63.1(c)(2) to read as follows:

  Table 1 to Subpart N of Part 63.--General Provisions Applicability to
                                Subpart N
------------------------------------------------------------------------
                                    Applies to
 General provisions reference       subpart N             Comment
------------------------------------------------------------------------

                              * * * * * * *
Sec.   63.1(c)(2).............  Yes..............  Sec.   63.340(e) of
                                                    Subpart N exempts
                                                    area sources from
                                                    the obligation to
                                                    obtain Title V
                                                    operating permits.

                              * * * * * * *
------------------------------------------------------------------------

Subpart O--[Amended]

0
5. Section 63.360 is amended by:
0
a. Revising the entry for Sec.  63.1(c)(2) in Table 1; and
0
b. Revising paragraph (f).
    The revisions read as follows:


Sec.  63.360  Applicability.

* * * * *

                    Table 1 of Section 63.360.--General Provisions Applicability to Subpart O
----------------------------------------------------------------------------------------------------------------
                                                               Applies to sources
             Reference                 Applies to using 10    using 1 to 10 tons in            Comment
                                       tons in subpart O a         subpart O a
----------------------------------------------------------------------------------------------------------------

                                                  * * * * * * *
63.1(c)(2).........................                        Yes                       Sec.   63.360(f) exempts
                                                                                      area sources subject to
                                                                                      this subpart from the
                                                                                      obligation to obtain Title
                                                                                      V operating permits.

                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

* * * * *
    (f) If you are an owner or operator of an area source subject to 
this subpart, you are exempt from the obligation to obtain a permit 
under 40 CFR part 70 or 71, provided you are not required to obtain a 
permit under 40 CFR 70.3(a) or 71.3(a) for a reason other than your 
status as an area source under this subpart. Notwithstanding the 
previous sentence, you must continue to comply with the provisions of 
this subpart applicable to area sources.
* * * * *

Subpart T--[Amended]

0
6. Section 63.460 is amended by adding paragraph (h) to read as 
follows:


Sec.  63.460  Applicability and designation of source.

* * * * *
    (h) If you are an owner or operator of an area source subject to 
this subpart, you are exempt from the obligation to obtain a permit 
under 40 CFR part 70 or 71, provided you are not required to obtain a 
permit under 40 CFR 70.3(a) or 71.3(a) for a reason other than your

[[Page 75346]]

status as an area source under this subpart. Notwithstanding the 
previous sentence, you must continue to comply with the provisions of 
this subpart applicable to area sources.


Sec.  63.468  [Amended]

0
7. Section 63.468 is amended by removing and reserving paragraph (j).
0
8. Appendix B to Subpart T is amended by revising the entry for Sec.  
63.1(c)(2) to read as follows:

               Appendix B to Subpart T of Part 63.--General Provisions Applicability to Subpart T
----------------------------------------------------------------------------------------------------------------
                                                  Applies to subpart T
             Reference              ------------------------------------------------           Comment
                                               BCC                     BVI
----------------------------------------------------------------------------------------------------------------

                                                  * * * * * * *
Sec.   63.1(c)(2)..................  Yes...................  Yes...................  Subpart T, Sec.   63.460(h)
                                                                                      exempts area sources
                                                                                      subject to this subpart
                                                                                      from the obligation to
                                                                                      obtain Title V operating
                                                                                      permits.

                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

Subpart RRR--[Amended]

0
9. Section 63.1500 is amended by revising paragraph (e) to read as 
follows:


Sec.  63.1500  Applicability.

* * * * *
    (e) If you are an owner or operator of an area source subject to 
this subpart, you are exempt from the obligation to obtain a permit 
under 40 CFR part 70 or 71, provided you are not required to obtain a 
permit under 40 CFR 70.3(a) or 71.3(a) for a reason other than your 
status as an area source under this subpart. Notwithstanding the 
previous sentence, you must continue to comply with the provisions of 
this subpart applicable to area sources.
* * * * *

0
10. Appendix A to Subpart RRR is amended by revising the entry for 
Sec.  63.1(c)(2) to read as follows:

             Appendix A to Subpart RRR of Part 63.--General Provisions Applicability to Subpart RRR
----------------------------------------------------------------------------------------------------------------
              Citation                     Requirement           Applies to RRR                Comment
----------------------------------------------------------------------------------------------------------------

                                                  * * * * * * *
Sec.   63.1(c)(2)..................  ......................  Yes...................  Sec.   63.1500(e) exempts
                                                                                      area sources subject to
                                                                                      this subpart from the
                                                                                      obligation to obtain Title
                                                                                      V operating permits.

                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

PART 70--[AMENDED]

0
1. The authority citation for part 70 continues to read as follows:

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


0
2. Section 70.3 is amended as follows:
0
a. By revising paragraph (a) introductory text.
0
b. By removing and reserving paragraph (b)(3).
0
c. By revising paragraph (b)(4) introductory text.


Sec.  70.3  Applicability.

    (a) Part 70 sources. A State program with whole or partial approval 
under this part must provide for permitting of the following sources:
* * * * *
    (b) * * *
    (4) The following source categories are exempted from the 
obligation to obtain a part 70 permit:
* * * * *

PART 71--[AMENDED]

0
1. The authority citation for part 71 continues to read as follows:

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


Sec.  71.3  [Amended]

0
2. Section 71.3 is amended by removing and reserving paragraph (b)(3).

[FR Doc. 05-24072 Filed 12-16-05; 8:45 am]

BILLING CODE 6560-50-P
