Testimony

of

Alison Keane, Counsel Government Affairs

National Paint and Coating Association

on

National Emission Standards for Hazardous Air Pollutants: Areas Source
Standards for Paints and Allied Products Manufacturing

Public Hearing

Environmental Protection Agency – Research Triangle Park

July 16, 2009

Paint and Allied Products Area Source Category is Erroneous 

On November 22, 2002 EPA promulgated revisions to its area source
category list under the Integrated Urban Air Toxics Strategy.  The
notice added 23 new area source categories to the list of industries to
be regulated by air toxic standards, including the nine area source
categories included in the Chemical Manufacturing Area Source Category
(there are approximately 71 source categories listed total).  Even
though EPA states in the first paragraph of the notice that “[t]he
Strategy’s area source category list constitutes an important part of
EPA’s agenda for regulating stationary sources of air [toxics]
emissions” (emphasis added), stakeholders were not afforded the
opportunity to comment on the area source category list.  Instead, EPA
stated “These revisions to the list of area sources have not been
reflected in any previous notices and are being made without public
comment on the Administrator’s own motion.  Such revisions are deemed
by EPA to be without need for public comment based on the nature of the
actions.” (emphasis added)  NPCA believes the “nature of the
actions” – listing the area sources to be regulated, was just as EPA
stated – an important part of its regulatory framework and thus,
should have provided those impacted with an opportunity for comment.

Coatings Industry has significantly Reduced HAP Emissions Since 1990 

Had we been provide with the opportunity for notice and comments, we
strongly believe that the paints and allied product category would have
been eliminated from the list given the significant HAP reductions the
industry has made since the listing, which used 1990 data.  Information
supplied from EPA’s Sector Strategies Program clearly shows that of
the listed HAP of concern, benzene and cadmium are no longer used in our
industry and there has been a significant decrease in use of methylene
chloride, lead, chromium and nickel. In fact, based on 2003 data, EPA
has documented the following:  

Urban Air Toxics – 81% reduction since 1990

Total Air Toxics (including HAPs) – 61% reduction since 1990

Metal Air Toxics – 90% since 1990  

Benzene – no facility reported emissions since 1998 

Methylene Chloride – 80% reductions since 1990  

Lead – 90% reduction since 1990 

Cadmium – no facility emissions since 1991

Chromium – 90% reduction since 1990  

Nickel – 90% reduction since 1990 

And these numbers are based on 2003 data – given that the MACT rule
for paints and coatings and the numerous MACT and Area Source rules for
paints and coatings as well as surface coating operations have been
promulgated or implemented only in the last 5 years, we would expect the
reductions to be even higher and the use of these target HAPs and HAPs
in general to be even lower.  While we understand that since the
category was listed, even if erroneously, that EPA must promulgate the
rulemaking, we do expect EPA to reduce the costs and burden on industry
as much as possible given the fact that the final rule will ultimately
have little to no environmental benefit commensurate with its costs. 
Thus, EPA must include provisions in the final rule that exempt certain
facilities and provide pollution prevention and burden reduction options
for others.  

Exemption for De Minimis Volumes Must be Provided 

NPCA supports the proposed rule’s applicability section in that unless
a facility is using one of the target HAP, it is not subject to the
regulation.  However, NPCA requests that a de minimus threshold also be
included in the final rule that would exempt a facility that uses less
than a certain amount of the target HAP.  This is important given the
fact that the majority of the target HAP in this case are metals, which
may be found in trace amounts or as contaminants in many raw materials
and may or may not be known to the manufacturer.   There is precedence
for de minimus thresholds in several earlier NESHAP rulemakings,
including the MACT standards for miscellaneous surface coatings of metal
and plastic parts and the Area Source standards for paint stripping,
among others.  In these rules, EPA determined that the use of coatings
containing urban air toxics below certain thresholds do not negatively
impact human health and the environment.  Thus, NPCA requests that a de
minimis level be added to the Area Source rule for Paint and Allied
Products manufacturing, and will suggest an appropriate threshold in our
comment document.

Limit the Rule’s Applicability to the Target HAP

Again, NPCA supports the fact that EPA has proposed to limit the initial
applicability of the rulemaking to only those paint manufacturing
operations that process, use, produce or generate any of the target HAP.
 However, once a facility is subject to the rulemaking based on the use
of one or more target HAP, the Proposed Rule then arbitrarily expands
the applicability to all organic HAP emissions and all metal HAP
emissions.  The intent of the area source regulations was to regulate
the 30 Urban Air toxics.  Thus, by expanding the rule beyond the target
HAP, EPA is significantly increasing the burden on industry –
especially small business – again, without commensurate environmental
benefit.  EPA states that there is little if any additional cost for
implementing controls across all emission sources, however, NPCA
believes EPA’s costs estimates are in error.  While EPA may have the
legal authority to expand the scope of this rulemaking – given the
fact that the paint and allied products category listing is suspect in
and of itself and that the industry has made significant reductions in
the use of the target HAPs as well as emissions of all HAP, we believe
it unnecessary and overly burdensome for EPA to expand the rule’s
applicability in this manner.  

Limit the Rule’s Applicability to Operations that Involve HAPs 

For the same reasons, NPCA requests that EPA limit the rulemaking’s
applicability to those operations at a facility that are actually
utilizing one of the target HAP.  EPA should revise the applicability
language to make it clear that the rule only applies to processes with
target HAP emissions at an affected source, as opposed to any operation
at an affected source, regardless of whether or not the process involves
HAP. 

Exemption for Paste/Slurry Form 

Another exemption that would reduce the costs and burden associated with
this rulemaking without environmental harm would be to exempt facilities
and/or processes that only use the target HAP in paste or slurry form. 
EPA correctly concluded in the Proposed Rule that after the addition
processes, pigments and associated metal HAP are in solution and metal
HAP emissions are minimal. Further, metal particulate emissions from
pigments that are in the form of a past or slurry are also minimal.
Since there are minimal particulate emissions from the use of pigments
and slurries, NPCA requests that that EPA exempt facilities and
processes using pastes and slurries from the applicability of this rule.

Exemption for Architectural Coatings 

EPA solicited comment on potential subcategories for this source
category. NPCA believes that there are certain portions of the coatings
industry that do not use benzene, methylene chloride, and compounds of
cadmium, chromium, lead and nickel. Specifically, NPCA does not believe
that facilities that are exclusively manufacturing architectural house
paints utilize any of these target HAP.  This is not only because of
reformulation and process changes as discussed previously, but because
of the many consumer oriented regulations governing these products,
including but not limited to the Consumer Product Safety Improvement Act
of 2008 that lowered lead levels in consumer paints, Green Seal and
other building standards that limit or prohibit the use of methylene
chloride, benzene, cadmium, lead and chromium, and the toxics in
packaging legislation through the Coalition of Northeastern Governors
that has been adopted in 19 states and limits the concentration of lead,
cadmium and chromium.  Thus, NPCA requests that architectural paint
manufacturing facilities be exempted from the applicability of the rule.

EPA Should Allow Facilities to “Opt-Out” 

In addition to these exemptions and clarifications to the applicability
section, NPCA requests that EPA include a pollution prevention
alternative that would exempt a facility from the rule’s requirements
if a facility eliminates all use of the target HAPs.  In other words, a
facility subject to this rule could “opt out” of the rule in the
future if the facility eliminated the processing, use, production or
generation of the HAPs of concern.  If EPA does not include an opt-out
provision, there is no incentive for coatings manufacturers or their raw
material suppliers to move away from these HAPs.  And facilities that do
reformulate or cease producing a certain product that subjected them to
the rulemaking in the first place will be mandated to continue to
operate costly and energy consuming control equipment (e.g., particulate
controls) for no environmental benefit.  In fact, the operation of this
equipment in the absence of HAP may result in environmental harm –
with the consumption of more electricity and natural gas, the generation
of more greenhouse gases, and the increased potential of landfill
disposal of removed particulate material.  Just the cost and burden of
the continue recordkeeping and reporting the facility would still be
subject to despite using no target HAP should be amble reason to provide
this pollution prevention alternative.  NPCA believes that EPA’s 1995
“one in/always in” policy applies to major sources subject to MACT
standards and would not apply to this Area Source regulation, and while
EPA staff has unofficially indicated they support this view, NPCA
requests that EPA officially confirm that this policy does not apply to
this final rulemaking and facilities who no longer use the target HAP
after the date of implementation have the ability to opt-out of the
rule.  

Implementation Date Should be Three Years

Lastly, NPCA requests that currently proposed implementation deadline be
increased from 2 years to 3 years.  NPCA believes that the proposed 2
year implementation period is arbitrary and capricious, since nearly
every MACT and Area Source NESHAP published prior to this rule has a 3
year implementation period. Further, EPA notes that some facilities may
be subject to EPA rules for the first time and most of the facilities
subject to this rule are small businesses with 50 percent of these
having less than 10 employees. This is compounded by the fact that this
rule has an unusually short comment period and must be finalized in an
expedited manner – such that many small paint manufacturers may not
even be aware of the rulemaking and extra effort will be necessary to
alert them to the final rule.  Further, small businesses need ample time
to secure funding and engineering resources in order to install
particulate controls and tank covers/lids and EPA must produce
compliance assistance and outreach tools.  Lastly, a 3 year
implementation period would give paint manufacturing facilities another
12 months to eliminate benzene, methylene chloride, cadmium, chromium,
lead and nickel from their coatings formulations. NPCA believes EPA
would favor pollution prevention reformulations as opposed to burdensome
regulations.  Thus, NPCA requests a 3 year implementation deadline.  

 67 Fed. Reg. 70427 (November 22, 2002).  See 64 Fed. Reg. 38706 (July
19, 1999) for Integrated Urban Air Toxics Strategy.

 Air Emissions from the Paint and Coatings Sector, EPA Sector Strategies
Division  (December 2006). 

 40 CFR §63.4481(b) and 40 CFR §63.3881(c)(3), respectively.

